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UTC LE T H E U N I V E R S I T Y O F T E X A S S C H O O L O F L AW

32nd Annual

Conference on Immigration
and Nationality Law
Earn up to 17.50 Hours of Credit Including 2.00 Hours of Ethics Credit
Specialization Credit Expected for Immigration and Nationality Law

October 22*, 23-24, 2008


Marriott Plaza
S a n A n t o n i o , Te x a s

*Special Wednesday Evening Sessions—Fundamentals of Immigration Law


Included with Registration

W W W. U T C L E . O R G • 5 1 2 - 4 7 5 - 6 7 0 0
2008 CONFERENCE ON IMMIGRATION AND NATIONALITY LAW

OCTOBER 22, 23-24, 2008

MARRIOTT PLAZA SAN ANTONIO, TEXAS

Introduction to United States Immigration Law ...............................................................TAB 1

Fundamentals of Family-Based Immigration ...................................................................TAB 2

Fundamentals of Business-Based Immigration ................................................................TAB 3

Naturalization and Citizenship Issues ...............................................................................TAB 4

Grounds of Removal .........................................................................................................TAB 5

Strategic Planning for Family Cases .................................................................................TAB 6

Immigration Rights ...........................................................................................................TAB 7

A Primer on Foreign Adoption .........................................................................................TAB 8

Practice Issues and Immigration Options for Vulnerable Populations .............................TAB 9

Primer: Getting a Green Card .........................................................................................TAB 10

Removal Proceedings: The New Practice Rules .............................................................TAB 11

Immigration to Criminal Law .........................................................................................TAB 12

Of Counsel—Breakfast with the Experts........................................................................TAB 13

Working with Non-Immigrant Visas ..............................................................................TAB 14

Strategic Planning Using Immigrant Visas .....................................................................TAB 15

A Primer on PERM .........................................................................................................TAB 16

Law Office Management for Immigration Practitioners ................................................TAB 17

Worksite Enforcement ....................................................................................................TAB 18

Snatching Victory from the Jaws of Defeat ....................................................................TAB 19

Asylum ............................................................................................................................TAB 20

Using the Internet to Stay Current with Immigration Laws, Procedures,


and Agency Interpretations .................................................................................TAB 21

Top 10 Immigration Updates to Help Guide Your Practice ...........................................TAB 22


© Copyright, The University of Texas School of Law
Continuing Legal Education
TAB 01
Introduction to United States Immigration Law
INTRODUCTION TO UNITED STATES
IMMIGRATION LAW

PAUL PARSONS P.C.


Attorney at Law
704 Rio Grande
Austin, Texas 78701

(512) 477-7888
(512) 479-6903 fax

parsons@immigrate-usa.com
http://www.immigrate-usa.com

Immigration and Nationality Law


University of Texas School of Law
October 22-24, 2008
Marriott Plaza
San Antonio, Texas
TABLE OF CONTENTS

I. INTRODUCTION................................................................................................................................................... 1

II. IMMIGRANT STATUS: EMPLOYMENT-BASED ............................................................................................. 1


A. First Preference................................................................................................................................................ 1
1. Extraordinary Ability ............................................................................................................................... 1
2. Outstanding Professors or Researchers ................................................................................................... 2
3. Multinational Executives and Managers ................................................................................................. 2
B. Second Preference ........................................................................................................................................... 2
1. Advanced Degree .................................................................................................................................... 2
2. Exceptional Ability .................................................................................................................................. 2
C. Third Preference .............................................................................................................................................. 3
D. Fourth Preference ............................................................................................................................................ 3
E. Fifth Preference ............................................................................................................................................... 3

III. LABOR CERTIFICATION .................................................................................................................................... 3

IV. NONIMMIGRANT STATUS................................................................................................................................. 4


A. F-1 Student ...................................................................................................................................................... 5
B. J-1 Exchange Visitor ....................................................................................................................................... 5
C. B-1 Business Visitor ........................................................................................................................................ 5
D. Visa Waiver Program ...................................................................................................................................... 5
E. TN Status ......................................................................................................................................................... 5
F. H-1B Specialty Worker ................................................................................................................................... 5
G. L-1 Intracompany Transferee .......................................................................................................................... 6
H. O-1 Extraordinary Ability ............................................................................................................................... 6
I. E-2 Treaty Investor & E-1 Treaty Trader ........................................................................................................ 7
J. Other Types of Employment Based Nonimmigrant Visas .............................................................................. 7

V. DEVELOPMENTS AFFECTING EMPLOYMENT BASED CASES .................................................................. 7


A. Department of Homeland Security .................................................................................................................. 7
B. Special Registration ......................................................................................................................................... 7
C. Employment Authorization for Dependent Spouses ....................................................................................... 7
D. Premium Processing ........................................................................................................................................ 7
E. Extensions of Nonimmigrant Status ................................................................................................................ 8
F. Monitoring of International Students .............................................................................................................. 8
G. Protecting Immigration Benefits for Children ................................................................................................. 8
H. Address Change Notification Requirements ................................................................................................... 8
I. Additional Security Clearances ....................................................................................................................... 8
J. Employer or Job Changes While Immigration Applications Pending............................................................. 8

VI. FAMILY BASED IMMIGRANT STATUS ........................................................................................................... 8


A. First Preference................................................................................................................................................ 9
B. Second Preference ........................................................................................................................................... 9
C. Third Preference .............................................................................................................................................. 9
D. Fourth Preference ............................................................................................................................................ 9

VII. CONCLUSION ....................................................................................................................................................... 9


INTRODUCTION TO UNITED such a relative, he/she might qualify under one of the
employment-based categories. Currently the
STATES IMMIGRATION LAW Immigration & Nationality Act sets an annual limit of
226,000 immigrant “preference” numbers for
family-based categories, and 143,949 immigrant
I. INTRODUCTION “preference” numbers for employment-based
The threat of terrorism triggered Congressional categories. The per-country limit for preference
and administrative actions that have dramatically immigrants is now 25,896.
changed United States immigration laws. The most
significant change arose from the Homeland Security Employment-Based Categories
Act of 2002 that transferred immigration enforcement
and adjudication services functions from the now 1st Preference: Extraordinary Ability
defunct Immigration & Naturalization Service into the Outstanding Professors &
Department of Homeland Security. Security and Researchers
enforcement concerns have taken priority over timely Managers & Executives
adjudications of applications for immigration status
submitted by employers for foreign national
employees as well as by U.S. citizens for their 2nd Preference: Advanced Degree Professionals
relatives. Exceptional Ability
Immigration laws are constantly changing. This
is a heavily regulated field with laws intended both to 3rd Preference: Professionals (Bachelors degree)
protect the United States workforce and to unify Skilled Workers (two years
families. Congress must juggle competing interests in training)
determining immigration policy: employers want to be Other Workers (unskilled)
able to hire skilled foreign labor, while labor unions
and professional societies want to improve wages and 4th Preference: Special Immigrants (religious
working conditions for employees; immigrant families workers)
want to bring their relatives to the U.S., while the
quota system lags ever farther behind; a global 5th Preference: Immigrant Investors
economy demands decreasing barriers, while an influx
of unlawful immigration and the threat of terrorism A. First Preference
results in tightening controls. The First Preference is for "priority workers" and
The U.S. Citizenship & Immigration Services includes individuals of extraordinary ability,
(CIS) concentrates on the intent of the individual: Is outstanding professors or researchers, and certain
he/she an intending immigrant or nonimmigrant? The executives and managers of multinational
wrong answer might result in a return trip to the home corporations. Because Congress regards them as
country. Nonimmigrant status is temporary: one may priority workers, they are exempt from Department of
only remain in the U.S. for a limited period of time. Labor requirements for labor certification.
Immigrant status, commonly called "green card"
status, signifies that a person has been granted 1. Extraordinary ability
permanent resident status and may reside in the U.S. The first subgroup of the priority worker
indefinitely. category is reserved for applicants with extraordinary
These government websites provide useful ability in the sciences, arts, education, business, or
information about immigration laws: athletics. The CIS considers "extraordinary ability" to
be a level of expertise indicating that the individual is
www.uscis.gov (U.S. Citizenship & Immigration one of a few who have risen to the top of his/her field.
Services) The petitioner must demonstrate extraordinary ability
www.dol.gov (U.S. Department of Labor) through extensive documentation showing sustained
www.travel.state.gov (U.S. Department of State) national or international acclaim, and that the foreign
www.twc.tx.us (Texas Workforce Commission) national’s achievements have been recognized by
others in the field of expertise. The regulations
II. IMMIGRANT STATUS: provide a list of criteria for guidance, which are
EMPLOYMENT-BASED summarized below:
Generally either a close family relative or an
employer must sponsor someone for immigration. The  Major prizes or awards.
first method relies on a close tie to a U.S. citizen or  Memberships in organizations that require
permanent resident. If a foreign national does not have outstanding achievement.
1
 Cites to or articles about the individual’s The petitioner must document that the proper
work. relationship exists between the two entities. In some
 Participation as a judge of the work of others. cases a joint-venture may be acceptable to the CIS. In
 Evidence of original scientific, scholastic, situations where there is less than 50% ownership,
artistic, athletic or business-related there might be equal control and veto power. The
contributions. CIS definition of "managerial capacity" includes both
 Authorship of scholarly articles. managers of an organization and managers of a
 Artistic exhibitions or showcases. function; however, first line supervisors are not
 Performance in a leading or cultural role for considered managers unless the employees they
organizations that have a distinguished supervise are also professionals.
reputation.
 High salary in relation to others in the field. B. Second Preference
 Commercial success in the performing arts. The Second Preference category includes
 Other comparable evidence. members of the professions holding advanced degrees,
and those who have exceptional ability in the sciences,
2. Outstanding Professors or Researchers arts or business. The CIS regulations define a
The second subgroup of the priority worker profession as an occupation that requires at least a
category is reserved for certain professors or Bachelor’s degree to enter into the field. An employee
researchers who are internationally recognized as seeking to enter in this category must obtain a labor
being outstanding in specific academic areas. The certification from the Department of Labor unless the
applicant must have at least three years teaching or CIS determines that a waiver of the labor certification
research experience. Under certain conditions the CIS requirement would be in the "national interest." A
will count teaching or research experience gained labor certification certifies that the employment of the
while working toward an advanced degree. The foreign worker in a particular position will not
individual must either be (a) in a tenure-track position adversely affect the U.S. labor market.
teaching or conducting research at a university, or (b)
in a research position with a private employer who 1. Advanced Degree
employs at least three full-time researchers and who This subcategory requires the professional to
has achieved documented accomplishments in the have at least a Master’s degree or equivalent. An
academic field. advanced degree means any degree higher than a
As with extraordinary ability, the petitioner must Baccalaureate degree. The CIS will also consider an
demonstrate outstanding ability through extensive applicant who has a Baccalaureate degree plus five
documentation showing international recognition in years of progressive experience in the profession to be
the field. The regulations provide a list of criteria for equivalent to a Master’s degree. Note that to require
guidance, which are similar to extraordinary ability: five years of experience in a job offer for purposes of
labor certification may conflict with minimum job
 Major prizes or awards. standards set by the Department of Labor. For this
 Membership in organizations that require reason it may not always be possible to include an
outstanding achievement. individual’s full experience to meet the advanced
 Cites to or articles about the individual’s degree category.
work.
 Participation as a judge of the work of others. 2. Exceptional Ability
 Evidence of original scientific research. This subcategory is reserved for those who have
 Authorship of scholarly articles or books "exceptional ability" in the sciences, arts or business,
and who will substantially benefit prospectively the
3. Multinational Executives and Managers national economy, cultural or educational interests, or
The third subcategory of priority workers is welfare of the United States. The CIS is looking for a
reserved for certain executives and managers of level of expertise significantly above that ordinarily
multinational companies. To be eligible the manager encountered in the field. It is lower than the
or executive must have been employed at least one of "extraordinary ability" standard, and has different
the three preceding years by the overseas parent, guidelines:
subsidiary, affiliate, or branch of the U.S. employer.
They must have filled a position in a managerial or  Degree relating to area of exceptional ability.
executive capacity for at least one year, and be  Ten years of experience.
coming to the U.S. to fill a position in a similar  Professional license.
capacity.  High salary in relation to others in the field.
 Membership in professional associations.

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 Recognition for achievements and significant III. LABOR CERTIFICATION
contributions. For most employees, labor certification will be a
 Other comparable evidence. prerequisite for obtaining employment-based
permanent residence. The Immigration & Nationality
C. Third Preference Act requires that most foreign nationals who seek to
The Third Preference category includes enter the U.S. to perform skilled or unskilled labor are
professionals who hold a Baccalaureate degree (or not admissible unless the U.S. Secretary of Labor
foreign degree equivalency); skilled workers capable certifies that there are not sufficient U.S. workers
of performing a job requiring at least two years of available for the position, and that employment of the
training or experience; and "other workers," who are foreign national will not adversely affect the wages
defined as those who work in positions requiring less and working conditions of similarly employed U.S.
than two years of training or experience. Visas are workers.
equally available to professionals and skilled workers
under this category. Congress has limited the quota The labor certification program for the
for "other workers" to only 10,000 per year. permanent employment of aliens in the U.S. is
All employees seeking to enter in the Third administered by the Dept of Labor’s Employment &
Preference category must obtain a labor certification Training Administration (www.doleta.gov).
from the Department of Labor.
How does it work?
D. Fourth Preference
The Fourth Preference category is for Special The labor certification process involves a test
Immigrants, which primarily includes ministers and of the labor market to ensure that the employer is not
religious workers. To be eligible, the applicant must overlooking minimally qualified U.S. workers for the
have been a member of a religious denomination that position. The employer must perform certain
has had a bona fide non-profit religious organization recruitment steps, evaluate each applicant’s
in the U.S. for at least the two years immediately background, and determine whether any are qualified
preceding the application. The applicant must be for the position. Upon conclusion of the recruitment
entering the United States to work (1) as a minister of activities, the employer must prepare a recruitment
religion, (2) for the organization in a religious report and file an Application for Permanent
capacity, or (3) for the organization or a related Employment Certification (ETA Form 9089) with one
tax-exempt entity in another professional capacity. of the ETA’s National Processing Centers. In order to
The applicant must have been carrying on such work ensure that U.S. workers will not be adversely
as a minister, professional or other worker for at least affected by the foreign worker’s employment, the
two years preceding the application. The applicant employer must offer a salary that meets at least the
must have at least a Baccalaureate degree to qualify as prevailing wage as determined by the state’s
a religious professional. A combination of experience workforce agency (e.g., the Texas Workforce
and education may not be substituted for a Commission). The state agencies will typically rely
Baccalaureate degree. upon the Service Contract Act (SCA) and
Occupational Employment Statistics (OES) surveys
E. Fifth Preference found at www.flcdatacenter.com. Employers may also
The Fifth Preference category is for foreign submit private surveys for consideration, but there are
investors. It allows conditional residency for a person stringent criteria governing how the survey was
who invests $ 1 million (or under certain conducted, its sampling size, and how the median or
circumstances $500,000) in a new commercial mean wage was calculated.
enterprise that employs ten full-time U.S. workers.
The investor must directly manage the business or at Who must be considered?
least be involved through policy formation. A "new
commercial enterprise" includes creating a new The employer must consider any U.S. workers
business, purchasing a business and reorganizing it, or who apply for the position, but does not need to
expanding an existing business by forty percent. The consider non-U.S. workers (e.g., F-1 students and H-
investment might be in cash or cash equivalents, 1B temporary workers). The employer must determine
equipment, inventory, or other tangible property. the minimum job requirements for education and
Indebtedness secured by the assets of the entrepreneur experience, but may not tailor these job requirements
might also be considered part of the investment. to the foreign worker’s background or include unduly
restrictive job requirements or duties in the job
description. The ETA’s Certifying Officer will utilize
the O*NET (www.onetcenter.org) to evaluate and

3
determine if the employer’s stated job requirements (3) Job order with the state workforce agency for
and duties are normal to the occupation involved. The thirty days.
O*NET is based upon the Standard Occupational
Classification (SOC) system used by Federal The employer must select three additional
statistical agencies to classify workers into recruitment steps from these alternatives:
occupational categories for the purpose of collecting, a) Job Fairs
calculating, or disseminating data. b) Employer’s Web Site
c) Job Search Web Site (other than
As a general rule, the employer may not employer’s)
include as a requirement any experience which the d) On-Campus Recruiting
foreign worker has gained in the same or similar e) Trade or Professional Organizations
position with the firm, nor require knowledge or skills f) Private Employment Firms
that could only be obtained in-house with the firm’s g) Employee Referral Program with
products or services. Any special requirements, such Incentives
as a foreign language, must be thoroughly h) Campus Placement Offices
documented as business necessity. This labor market i) Local and Ethnic Newspapers
test is structured to determine if there are any j) Radio and Television Ads
minimally qualified candidates available for the
position—it is not relevant to the Certifying Officer The ad or posting must contain the company
that the incumbent foreign worker is the best qualified name, direct applicants to report or send resumes to
of the candidates. U.S. candidates may be rejected for the employer, provide enough detail to adequately
only lawful job-related reasons, i.e., they do not meet apprise the potential applicants of the job opportunity,
the stated minimum education/experience and indicate the area of employment if not apparent
requirements, or it is clear from their backgrounds that from the employer’s address. Upon conclusion of the
they would not be able to perform the job duties. The recruitment steps, the employer will review the
Certifying Officer will consider an applicant qualified resumes, conduct any interviews necessary to better
if he/she could learn the necessary job skills within a ascertain a candidate’s qualifications, and prepare a
reasonable period of on-the-job training. recruitment report summarizing the results. The
recruitment report will describe the recruitment steps
What must be done under PERM? undertaken and the results achieved, the number of
hires (if any) and the number of applicants rejected
PERM stands for Program Electronic Review (categorized by the lawful job related reasons for such
Management system. After conducting the required rejections). In the event of an audit, the Certifying
recruitment and evaluating the candidates, the Officer may request the U.S. workers’ resumes or
employer will usually submit electronically the applications (sorted by the reasons the workers were
ETA9089 application to the National Processing rejected).
Center. On the application the employer will attest to
the job requirements, the recruitment steps, the An approved labor certification is valid
prevailing wage, and that no qualified candidates indefinitely; however, it is valid only for the specific
could be found. The application should be reviewed job opportunity and for the area of intended
within sixty days and a determination made to either employment stated on the application. The ETA may
conduct an audit or to certify the employer’s revoke a labor certification if they discover that there
application. If an audit is required, then the employer has been fraud or willful misrepresentation in the
must submit the ads, postings, resumes, and process.
recruitment report to the Certifying Officer within
thirty days. The Certifying Officer will conduct IV. NONIMMIGRANT STATUS
random audits to ensure the integrity of the program. Nonimmigrants may remain in the U.S. for only a
temporary period of time and are restricted to the
Under PERM, the employer will post a notice activity consistent with their visas. Nonimmigrants are
on-site for ten consecutive business days, and conduct expected to depart the U.S. by the expiration date on
six recruitment steps. These steps will involve the their I-94 entry/departure cards unless they have filed
following: for an extension. There can be serious legal
consequences for anyone who overstays his/her
(1) Job ad in Sunday newspaper classifieds, authorized period of admission. The following is a
(2) Second job ad in Sunday paper or in an description of some of the commonly used
appropriate professional journal, and employment or business-related visas:

4
A. F-1 Student even if the foreign national marries a U.S. citizen and
An F-1 student is usually granted "Duration of has U.S. citizen children.
Status" which is the period required to complete the
program of study, plus any authorized period of C. B-1 Business Visitor
practical training. Students are expected to maintain a The B-1 visa is intended for business trips to the
full-time course load. Eligibility to work includes U.S. to conduct business on behalf of a foreign
part-time employment on-campus (full time during employer. The B-1 visitor may not be employed to
break periods). Off-campus employment based on work for a U.S. employer. Permitted B-1 activities
economic hardship can be authorized by the CIS if a include business meetings, conferences or seminars,
student can verify that the hardship is based on contract negotiations, consultations, litigation, sales
unforeseen circumstances. Both hardship calls, plant tours, market research, contract or
authorization and practical training are available only warranty follow-up, and formal classroom training
after a student has been enrolled full-time for a (but not on-the-job training). Tourists are eligible to
consecutive nine- month period. seek B-2 visitor visas.
There are two types of practical training:
curricular and optional. Curricular practical training D. Visa Waiver Program
may be authorized by a Designated School Official The visa waiver program may be used for the
(DSO) during the student’s course of study, and may same purposes as a B-1 business visitor or B-2 tourist
include internships, cooperative education programs, visa. This program waives the requirement to first
work/study programs, or practicums. The employment obtain a visa at a U.S. consulate. Instead, the visitor
training offered must be integral to the student’s may fly to the U.S. and apply at an inspection point
curriculum. Optional practical training is authorized for entry into the U.S. The immigration inspector will
by the CIS upon completion of the student’s studies. make an immediate decision whether to issue an I-94
This employment should relate to the student’s major entry card, and there is virtually no appeal of a
area of study. One important caveat: if the F-1 student negative decision. This program is only for visitors
has used twelve or more months of full-time curricular from certain countries where there has been
practical training, then he/she will normally be traditionally low fraud. The I-94 entry card will be
ineligible for optional practical training after issued for ninety days, and no extensions or changes
graduation. of nonimmigrant status are allowed (except for
F-1 students, M-1 vocational students, and J-1 “immediate relatives” of U.S. citizens who might be
exchange visitors are now closely monitored by eligible to seek immigrant status).
educational institutions and the CIS under the Student
and Exchange Visitors Information System (SEVIS) E. TN Status
mandated by the U.S.A. Patriot Act. The TN category arose from the North American
Free Trade Agreement (NAFTA). Individuals from
B. J-1 Exchange Visitor Canada or Mexico must qualify under one of the
The J-1 category includes certain students as well occupations listed in the treaty. Some of the
as visiting scholars, corporate trainees, professors, professions listed include engineers, architects,
research assistants, and other field specialists. The J-1 accountants, economists, computer systems analysts,
program is administered by the U.S. Department of foresters, graphic designers, mathematicians, research
State. As with F-1 students above, J-1 students may be assistants, and scientific technicians/technologists. A
eligible for incidental on-campus employment if their Canadian may apply at an international airport or
school is also their program sponsor. For students on border post for TN status; however, Mexicans must
another sponsor’s program, that sponsor would need first obtain a visa from a U.S. consulate. TN status is
to authorize any on-campus employment. The approved for one year, and may be extended by the
Responsible Officer (RO) can authorize off-campus CIS in one-year increments.
employment based on hardship or academic training.
The academic training is available during or after the F. H-1B Specialty Worker
student’ s academic program for a maximum of 18 The H-1B category is for workers in specialty
months based on an employment offer in the field of occupations, which means an occupation that
study. Bona fide post-doctoral positions allow up to normally requires attainment of at least a Bachelor’s
36 months of academic training. Many (but not all) degree. Generally one must have a degree in the
exchange visitors are obligated to a two-year foreign specialty to qualify, or the degree equivalent.
residence in their home country prior to seeking an Positions in education, engineering, accounting,
H-1B specialty worker or immigrant status in the U.S. finance, and research are normally considered
Sometimes waivers of this requirement are not granted professional. For nontraditional professions, the CIS
will look to the complexity or uniqueness of the job

5
duties, and whether a degree requirement is common product or an advanced level of knowledge of
to the industry. processes and procedures of the company. The CIS
An employer must file a Labor Condition definition of managerial capacity includes
Application (LCA) with the U.S. Department of Labor management of an organization or management of a
(DOL) attesting that the hiring of H-1B workers will function of the company. This category does not
not adversely affect the wages and working conditions include front line supervisors unless the employees
of other U.S. workers in the same position at that they supervise are other professionals.
location. The employer must determine the Usually an L-1 petition may be initially approved
“prevailing” wage for the region, and attest that the for three years, and extended in two-year increments.
wage offered to the foreign national is the higher of An L-1A manager/executive may normally stay a
the “actual” and of the “prevailing” wage. Notice maximum of seven years in the U.S.; an L-1B
must be posted on-site, and an LCA file maintained "specialized knowledge" professional may stay a
for public inspection. maximum of five years.
There is a numerical limit on the number of H- The usual procedure is to file an individual L-1
1Bs issued each year. The employer must plan well in petition with the CIS. For larger companies with many
advance of hiring an H-1B nonimmigrant worker transferees each year, there is an option to file for a
because the annual allotment of H-1B numbers is used blanket L-1 petition approval. Upon approval of a
up soon after applications are accepted for the blanket petition, individual petitions no longer need be
upcoming fiscal year. The H-1B petition can be filed with the CIS, thus cutting processing times. CIS
approved for three years, and extended for an processing times for individual L-1 petitions can be
additional three years for a maximum stay in the U.S. several months. An additional $1000 fee can be paid
of six years. Section 11030 of the 21st Century to the CIS for "premium processing" so that the CIS
Department of Justice Appropriation & Authorization will adjudicate an L-1 (or H-1B) petition within 15
Act allows an H-1B employee to obtain extensions days (or at least issue a request for more evidence
beyond the traditional six-year limit if an alien labor needed to promptly adjudicate such a petition).
certification has been pending for over one year. If a
PERM labor certification has been obtained and an H. O-1 Extraordinary Ability
employer’s I-140 immigrant petition approved, an H- The O-1 category is for aliens with extraordinary
1B worker who has used up the traditional six-year ability in the sciences, arts, education, business, or
limit could seek a three year extension if no immigrant athletics. Generally extraordinary ability means a level
visa numbers are available. A person with an H-1B of expertise indicating that the individual is one of a
might be "portable" to a new employer once a LCA is small percentage who has risen to the very top of
filed with the DOL and a petition filed with the CIS. his/her field. The CIS guidelines for proving
An additional $1000 fee can be paid to the CIS for "extraordinary ability" under this category are
"premium processing" so that the CIS will adjudicate virtually the same as those for the First Preference
an H-1B (or L-1) petition within 15 days (or at least "extraordinary ability" petitions:
issue a request for more evidence needed to promptly
adjudicate such a petition).  Major prizes or awards.
 Membership in organizations which require
G. L-1 Intracompany Transferee outstanding achievement.
The L-1 category allows multinational  Cites to or articles about the individual’s
corporations to temporarily transfer certain employees work.
to their U.S. facilities. The threshold requirement is  Participation as a judge of the work of others.
that the employee has worked for the company for at  Evidence of original scientific, scholarly, or
least one year (in the last three) prior to transferring to business-related contributions.
the United States.  Authorship of scholarly articles.
An L-1 petitioner must document that a  Employment in a critical or essential capacity
qualifying relationship exists between the U.S. for an organization or establishment that has a
company and its foreign parent, subsidiary, affiliate or distinguished reputation.
branch. The general rule is that one company must  High salary in relation to others in the field.
have effective control of the other. The CIS will
consider joint ventures or situations where there is less Criteria for artists:
than majority ownership but effective control of the  Perform services as a lead/starring participant
other, such as by veto power. in a production or event with a distinguished
There are two types of L-1s: the L-1A for reputation.
managers and executives, and the L-1B for those who  National or international recognition for
have "specialized knowledge" of the company’s achievements.

6
 Performed in a lead, starring or critical role Border Protection (CBP) focuses on the movement of
for organizations and establishments with a goods and people across our borders. Immigration
distinguished reputation. and Customs Enforcement (ICE) focuses on the
 Commercial or critically acclaimed success. interior enforcement of immigration and customs
 Significant recognition from critics, experts, laws. Citizenship and Immigration Services (CIS) is
or government agencies. responsible for adjudications of visa petitions and
 High salary in relation to others in the field. applications for naturalization, asylum, or refugee
status.
I. E-2 Treaty Investor & E-1 Treaty Trader This law requires in Section 458 that the
Nationals of over forty countries with an Department of Homeland Security (DHS) eliminate
appropriate treaty might qualify for a nonimmigrant immigration backlogs. Prompt adjudication of
treaty trader or treaty investor visa. A treaty trader applications and petitions for immigration benefits is
normally is involved with an exchange of goods or now a high priority for the CIS. The immigration
services between his/her country and the United courts remain under the Executive Office for
States. A treaty investor must invest a "substantial" Immigration Review of the U.S. Department of
amount of capital into a business enterprise that he/she Justice. The functions of the INS moved to the DHS
will personally develop and direct. The treaty investor on March 1, 2003.
must place the funds at risk, have other resources, and
not merely invest a marginal amount of capital into B. Special Registration
the business for the purpose of earning a living for the The Department of Homeland Security (DHS)
investor and his/her family. The amount of the implemented a call-in "Special Registration" program
investment is not defined but rather depends on the which required males over age sixteen who are
nature of the enterprise. citizens or nationals of designated countries and who
are not U.S. citizens, permanent residents, diplomats,
J. Other Types of Employment Based refugees or asylees to register with the CIS. This
Nonimmigrant Visas registration was part of the National Security
There are many other types of employment Entry-Exit Registration System (NSEERS), which
related nonimmigrant visas for qualified foreign was the DHS’ first step towards developing a
nationals who will be employed in particular comprehensive entry-exit program. The first group
positions. These categories include but are not required to appear for registration interviews were
limited to: A visas for diplomats and their citizens and nationals from Iran, Iraq, Libya, Sudan
dependents, D visas for crewmen, H-2A visas for and Syria. Another twenty countries were later added
seasonal agricultural workers, H-2B visas for to the list. This registration required a designated
temporary skilled or unskilled laborers, I visas for foreign national to discuss with a CIS officer his stay
international media representatives, M visas for and activities in the U.S, provide fingerprints, and
vocational students, P visas for athletes and group have his photo taken. Failure to have timely
entertainers, Q visas for participants in international registered may result in a decision that the foreign
cultural exchange programs, and R visas for certain national is out of status and deportable.
religious workers.
C. Employment Authorization for Dependent
V. DEVELOPMENTS AFFECTING Spouses
EMPLOYMENT BASED CASES Relatively recent legislation now allows E-2
spouses of treaty traders and treaty investors, as well
A. Department of Homeland Security as L-2 spouses of L-1 intracompany transferees to
The most significant change arose from the work and obtain employment authorization
Homeland Security Act of 2002 (Pub. L. No. 107-296, documentation from the CIS.
116 Stat. 2135) which moved both immigration
enforcement and adjudication services from the now D. Premium Processing
defunct Immigration & Naturalization Service into the An additional $1000 fee can be paid to the CIS
new Department of Homeland Security. Security and for "premium processing" so that the CIS will
enforcement concerns continue to take priority over adjudicate an H-1B, O-1, L-1, or certain other types of
timely adjudications of applications for immigration nonimmigrant petitions within 15 days (or at least
benefits submitted by employers for foreign national issue a request for more evidence needed to promptly
employees and by U.S. citizens and residents for their adjudicate such a petition).
relatives. Premium processing of an employer’s I-140
The Department of Homeland Security includes Immigrant Petition for Alien Worker is permissible if
three distinct immigration agencies. Customs and a visa number is not currently available on the State

7
Department’s monthly Visa Bulletin and the U.S. or obtain extensions of status. Congress passed
beneficiary is otherwise not eligible for an H-1 the Enhanced Border Security and Visa Entry Reform
extension. The premium processing request may not Act of 2002, which included a new security system
be filed more than sixty days before the H-1 status known as CHIMERA. Many other new laws such as
will expire. the National Security Entry Exit Registration System
(NSEERS) seek to coordinate security clearances
E. Extensions of Nonimmigrant Status between the CIA, FBI, CIS, CBP, ICE, Department of
Section 11030 of the 21st Century Department of State, and other agencies. The move of all
Justice Appropriation & Authorization Act allows an immigration functions into the Department of
H-1B nonimmigrant employee to obtain extensions Homeland Security seeks to coordinate these new
beyond the normal maximum time limits if an alien security clearances; however, applications and
labor certification has been pending for over one year petitions for employment authorization and other
or if an I-140 petition was approved and visa numbers benefits continue to be delayed.
are unavailable.
J. Employer or Job Changes While Immigration
F. Monitoring of International Students Applications Pending
F-1 academic students, M-1 vocational students, Downturns in the economy trigger new problems
and J-1 exchange visitors are now closely monitored for employers as well as foreign national employees.
by educational institutions and the CIS under the new The U.S. Department of Labor issued requirements
Student and Exchange Visitors Information System relating to applications for permanent alien labor
(SEVIS) mandated by the U.S.A. Patriot Act. certifications in situations when the employer has laid
off workers during the prior six months as well as
G. Protecting Immigration Benefits for Children when there have been layoffs in a particular industry.
The Child Status Protection Act amended the If the employer has terminated workers, the employer
Immigration & Nationality Act on August 6, 2002. must provide documentation about the number of
Children of foreign nationals seeking U.S. permanent workers laid off in the particular occupation and
resident status previously lost the opportunity to provide lawful, job related reasons that any laid off
immigrate with their parents if they reached age workers were rejected for the position for which
twenty-one while waiting for the INS to adjudicate certification is sought. Laid off foreign national
pending immigration applications. Fairly employees often must scramble to change to another
complicated new rules essentially require the CIS and nonimmigrant immigration status, if eligible, or seek
U.S. consular officers to establish such a child’s age to take advantage of the H-1B portability provisions.
as the date of filing and not the date of adjudication of A useful change allows an intending immigrant whose
the application for permanent resident status. adjustment of status application has been on file for
over 180 days to transfer to a "same or similar"
H. Address Change Notification Requirements position with another employer without abandoning
The CIS now requires all foreign nationals, the pending immigration applications if the
including permanent residents, to report any change in employer’s I-140 petition has been approved. There
address within ten days of moving. Failure to provide are still no regulations to interpret the definitions of a
notification is a misdemeanor offense that could result "same or similar" position; however, many of these
in a fine and/or sentence. If the failure to provide cases have been approved by the CIS.
notice is found to be willful, the alien could be
removable from the U.S. The form to use for an VI. FAMILY BASED IMMIGRANT STATUS
address change is the AR-11 which is available in the The immediate relatives of U.S. citizens do not
Immigration Forms tab on the CIS website at: come under the quota system, so immigrant visas are
always available. "Immediate relatives" are defined as
http://www.uscis.gov spouses of U.S. citizens, parents of U.S. citizens over
the age of 21, and unmarried children (under the age
I. Additional Security Clearances of 21) of U.S. citizens. Note that the spouse of a U.S.
Due to the terrorist attacks of 9/11, and to citizen will only be granted "conditional" permanent
enhanced computer technology, many additional resident status for an initial two years if the couple has
security checks must be completed before the CIS or been married less than two years at the time of
U.S. consular officials will approve nonimmigrant adjudication. The CIS will want to verify at the end
visas, immigrant status, or naturalization for U.S. of this period that the couple still resides together
citizenship. Employers have seen and will probably and/or that no fraud was involved. A waiver could be
continue to see longer delays before foreign national sought if the couple divorced during this period.
workers and their dependents will be able to enter the Waivers could also be sought if the U.S. citizen died,

8
or based upon extreme hardship or if the foreign Note that this category is reserved for petitioners
national was battered or subjected to extreme cruelty. who have lawful permanent resident ("green card")
If not an immediate relative, an applicant must status. After a certain period of time (usually three to
show a relationship under one of the family-based five years) a permanent resident has the option to seek
categories listed below: naturalization, i.e., become a U.S. citizen. In some
cases it may be in the interest of the permanent
resident to seek citizenship in order to petition for
Family-Based Categories certain relatives and avoid the long delays in the
Second Preference category.
1st Preference: Unmarried sons and daughters
(age 21 or older) of U.S. citizens. C. Third Preference
The Third Preference category is reserved for the
married sons and daughters of U.S. citizens,
2nd Preference: Spouses and children (under 21) of
regardless of age. The backlog for most Third
permanent residents, or unmarried
Preference applicants is now eight years; however, for
sons and daughters (over age 21)
applicants from Mexico it has been sixteen years, and
of permanent residents.
applicants from the Philippines have been waiting
over seventeen years.
3rd Preference: Married sons and daughters of
U.S. citizens (over age 21). D. Fourth Preference
The Fourth Preference category is reserved for
4th Preference: Brothers and sisters of U.S. brothers and sisters of U.S. citizens. Note that a U.S.
citizens (over age 21). citizen must be at least age 21 to petition for siblings.
This category also has significant backlogs. Currently
A. First Preference applicants from most countries have waited eleven
The First Preference category is reserved for the years; however, for the Philippines the wait has been
adult children of U.S. citizens, i.e., those children who over twenty-two years. In other words, a U.S. citizen
are now over the age of 21 and therefore traditionally originally from the Philippines who filed petitions for
fell out of the "immediate relative" definition. The brothers and sisters in March of 1986 would only now
adult child must be unmarried. As with all the be able to immigrate his/her siblings born in the
family-based categories, there is typically a backlog Philippines. Once permanent residents obtain U.S.
since there are more applicants than visas available citizenship, they sometimes petition for other family
under the annual allocations. Currently applicants members. Since so many people have obtained their
from most countries have waited about six and a half citizenship during the intervening years, it is expected
years for a visa number to become available in this that the backlogs in this category will continue to
category. Applicants from certain countries have grow and reach thirty years or longer.
faced an even longer backlog: fifteen and a half years
for nationals of the Philippines. Visa numbers in this
category for Mexican nationals are only available if VII. CONCLUSION
they registered prior to September 8, 1992. Unless The Illegal Immigration Reform and Immigrant
Congress increases the annual limit of 226,000 Responsibility Act of 1996 made our complex
immigrant visas for family-based categories, it seems immigration system even more restrictive for future
likely these backlogs will continue to increase. The immigrants. It is too early to determine if the
Child Status Protection Act (CSPA) allows some reorganization of the now defunct Immigration &
children to still be considered under the Second Naturalization Service within the Department of
Preference category even if they turned age Homeland Security will improve either immigration
twenty-one before their cases were completed. enforcement or adjudication efforts. This complete
reorganization as well as the concentration on security
B. Second Preference issues might result in even longer delays for families
The Second Preference category is split into two seeking to reunite and for employers seeking to obtain
subcategories: 2A is reserved for the spouses and temporary as well as permanent employment for
unmarried children (under the age of 21) of permanent needed foreign national personnel. Despite these
residents, and 2B is reserved for unmarried children concerns, there have been a few changes that benefit
age 21 or over. There is always a backlog. The employers and their foreign national employees as
waiting period for most 2A applicants has recently well as U.S. residents and citizens sponsoring their
been nearly five years, and nearly nine years for 2B relatives.
applicants. The backlogs are even longer for 2B
applicants from Mexico and the Philippines.
9
Visa Bulletin
Number 122
Volume VIII
Washington, D.C.

VISA BULLETIN FOR SEPTEMBER 2008

A. STATUTORY NUMBERS
1. This bulletin summarizes the availability of immigrant numbers during September. Consular
officers are required to report to the Department of State documentarily qualified applicants for
numerically limited visas; the Bureau of Citizenship and Immigration Services in the Department
of Homeland Security reports applicants for adjustment of status. Allocations were made, to the
extent possible under the numerical limitations, for the demand received by August 8th in the
chronological order of the reported priority dates. If the demand could not be satisfied within the
statutory or regulatory limits, the category or foreign state in which demand was excessive was
deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of
the first applicant who could not be reached within the numerical limits. Only applicants who have
a priority date earlier than the cut-off date may be allotted a number. Immediately that it becomes
necessary during the monthly allocation process to retrogress a cut-off date, supplemental
requests for numbers will be honored only if the priority date falls within the new cut-off date.
2. The fiscal year 2008 limit for family-sponsored preference immigrants determined in
accordance with Section 201 of the Immigration and Nationality Act (INA) is 226,000. The fiscal
year 2008 limit for employment-based preference immigrants calculated under INA 201 is
162,704. Section 202 prescribes that the per-country limit for preference immigrants is set at 7%
of the total annual family-sponsored and employment-based preference limits, i.e., 27,209. The
dependent area limit is set at 2%, or 7,774.
3. Section 203 of the INA prescribes preference classes for allotment of immigrant visas as
follows:
FAMILY-SPONSORED PREFERENCES
First: Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for
fourth preference.
Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent
Residents: 114,200, plus the number (if any) by which the worldwide family preference level
exceeds 226,000, and any unused first preference numbers:
A. Spouses and Children: 77% of the overall second preference limitation, of which 75% are
exempt from the per-country limit;

10
B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second
preference limitation.
Third: Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first
and second preferences.
Fourth: Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first
three preferences.

EMPLOYMENT-BASED PREFERENCES
First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any
numbers not required for fourth and fifth preferences.
Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional
Ability: 28.6% of the worldwide employment-based preference
level, plus any numbers not required by first preference.
Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus
any numbers not required by first and second preferences, not more than 10,000 of which to
"Other Workers".
Fourth: Certain Special Immigrants: 7.1% of the worldwide level.
Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved
for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in
regional centers by Sec. 610 of P.L. 102-395.
4. INA Section 203(e) provides that family-sponsored and employment-based preference visas
be issued to eligible immigrants in the order in which a petition in behalf of each has been filed.
Section 203(d) provides that spouses and children of preference immigrants are entitled to the
same status, and the same order of consideration, if accompanying or following to join the
principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state
or dependent area when visa demand exceeds the per-country limit. These provisions apply at
present to the following oversubscribed chargeability areas: CHINA-mainland born, INDIA,
MEXICO, and PHILIPPINES.
5. On the chart below, the listing of a date for any class indicates that the class is oversubscribed
(see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and
"U" means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for
applicants whose priority date is earlier than the cut-off date listed below.)

11
FAMILY CATEGORIES
China
Categories Worldwide India Mexico Philippines
(PRC)
1st 01 Apr 2002 01 Apr 2002 01 Apr 2002 08 Sept 1992 01 Apr 1993
2A 01 Dec 2003 01 Dec 2003 01 Dec 2003 Unavailable 01 Dec 2003
2B 15 Dec 1999 15 Dec 1999 15 Dec 1999 22 Apr 1992 08 Apr 1997
3rd 15 Jun 2000 15 Jun 2000 15 Jun 2000 15 Sept 1992 22 Apr 1991
4th 01 Oct 1997 08 Apr 1997 08 Apr 1997 15 Jan 1995 08 Mar 1986

*NOTE: For September, 2A numbers EXEMPT from per-country limit will be unavailable because
the annual limit for such visas will have been reached. This will only impact the processing of
Mexico F2A applicants.

EMPLOYMENT CATEGORIES
China
Categories Worldwide India Mexico Philippines
(PRC)
1st Current Current Current Current Current
2nd Current 01 Aug 2006 01 Aug 2006 Current Current
3rd Unavailable Unavailable Unavailable Unavailable Unavailable
Unskilled Unavailable Unavailable Unavailable Unavailable Unavailable
4th Current Current Current Current Current
Religious Current Current Current Current Current
5th Current Current Current Current Current

The Department of State has available a recorded message with visa availability information
which can be heard at: (area code 202) 663-1541. This recording will be updated in the middle
of each month with information on cut-off dates for the following month.

Employment Third Preference Other Workers Category: Section 203(e) of the NACARA, as
amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third
Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition
approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to
be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be
made for as long as necessary to offset adjustments under the NACARA program. Since the EW
cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual
limit to 5,000 began in Fiscal Year 2002.
12
B. VISA AVAILABILITY FOR OCTOBER

The Mexico F2A and Employment Third preference cut-off dates are “unavailable” for both
August and September, since those FY-2008 annual limits have been reached. The Visa Office
had originally anticipated that this would be a temporary situation. Then with the start of the new
fiscal year in October the cut-off dates would have returned to those which had applied during
June. However, continued heavy demand in those categories may require the establishment of
cut-off dates which are earlier than those which had applied in June. A formal decision
determination of the October cut-off dates will not be possible until early September.

C. DETERMINATION OF THE NUMERICAL LIMITS ON IMMIGRANTS REQUIRED UNDER


THE TERMS OF THE IMMIGRATION AND NATIONALITY ACT (INA)

The State Department is required to make a determination of the worldwide numerical limitations,
as outlined in Sections 201(c) and (d) of the INA, on an annual basis. These calculations are
based in part on data provided by the Citizenship and Immigration Services (CIS) regarding
number of immediate relative adjustments in the preceding year and the number of aliens paroled
into the United States under Section 212(d)(5) in the second preceding year. Without this
information, it is impossible to officially determine of the annual limits. To avoid delays in
processing while awaiting the CIS data, the Visa Office bases allocations on the minimum annual
limits as outlined in Section 201 of the INA, along with estimates. On July 22nd, CIS provided the
required data to the Visa Office.

The Department of State has determined the family and employment preference limits for FY-
2008 in accordance with the terms of Section 201 of the INA. The numerical limits for FY-2008
are as follows:

Worldwide Family-sponsored preference limit: 226,000


Worldwide Employment-based preference limit: 162,704

Under the INA Section 202(A), the per-country limit is fixed at 7% of the family and employment
annual limits. For FY-2008 the per-country limit is 27,209. The dependent area annual limit is
2%, or 7,774.

D. OBTAINING THE MONTHLY VISA BULLETIN

13
The Department of State's Bureau of Consular Affairs offers the monthly "Visa Bulletin" on the
INTERNET'S WORLDWIDE WEB. The INTERNET Web address to access the Bulletin is:

http://travel.state.gov

From the home page, select the VISA section which contains the Visa Bulletin.

To be placed on the Department of State’s E-mail subscription list for the “Visa Bulletin”, please
send an E-mail to the following E-mail address:

listserv@calist.state.gov

14
TAB 02
Fundamentals of Family-Based Immigration
Knowing the Basics in
Immigration Law—What the
Statutes and Case law don’t
teach you. (Revised Edition-2008)

Michelle L. Saenz-Rodriguez
Saenz-Rodriguez & Associates, P.C.
2720 N. Stemmons, Suite 1200
Dallas, Texas 75207
www.sralawonline.com
Michelle@sralawonline.com
214-637-5700
Introduction
I first wrote this paper in 2006 for the same conference. The response was quite
surprising. Many participants said that they liked the simplicity and asked if they could
make copies for their staff. As a result, when I was asked to teach the primer session on
family immigration, it made sense to just update the work that I had already created. I
have also added some checklists for each process that I have found useful in my own
practice.

This paper is intended as a guide and resource for practitioners of all levels. I
have tried to pull together the most basic questions that arise out of each application and
process. It is my hope that someone will find this handy enough to keep by their desk
and refer to it when a question arises and you don’t have time to go look it up on the
internet. It has been my experience that every now and then one must go back to the very
basics to make sure one remembers how to fill out a form, where it goes and what the
packet should look like. It is by no means all-inclusive, but it is solid outline and
reference tool for the most commonly used forms for the family based immigration
practitioner.

Keep in mind that not all people agree on how things should be done or how a
case or application should be presented. These thoughts are shared with you as a starting
point and the rest depends on your individual style. Good luck.

Michelle
TABLE OF CONTENTS

I. THE WORLD CLASSIFICATION SYSTEM-WHAT’S 1ST PREFERENCE, 2ND

PREFERENCE, ETC.

II. THE I-130- PETITION FOR ALIEN RELATIVE

III. THE I-485- APPLICATION FOR ADJUSTMENT OF STATUS

IV. THE I-864- AFFIDAVIT OF SUPPORT

V. THE I-765- APPLICATION FOR EMPLOYMENT AUTHORIZATION

VI. THE G-325A- BIOGRAPHIC DATA FORM

VII. THE I-751- PETITION TO REMOVE CONDITIONS OF RESIDENCE

VIII. THE N-400- APPLICATION FOR NATURALIZATION


I. The World Classification System
A. What does it all mean?

We must start with the basic premise to family based immigration- “Family
Reunification”. The family based preference system is based on the priority that
each classification is given in determining when certain family members of United
States Citizens (USC’s) and Legal Permanent Residents (LPR’s) are eligible to apply
for immigrant visas to live and work in the United States.

The preference categories which go from 1st preference to 4th preference 1establish the
priority dates and numerical limitations by which family members are entitled to
apply for their immigrant visas. Time frames can vary greatly depending on the
applicant’s country of origin. As indicated by the numbers assigned, it will normally
take a person in the 4th preference category much longer to immigrate than someone
in the 1st preference category. Recent backlogs have made the reality of 4th
preference category somewhere in the 20 year range with the potential to take much
longer even 30 or 40 years.

Not all relatives of UCS’s or LPR’s are subject to the preference systems. In
focusing on the principal objective of “Family Reunification”, Congress established
certain categories of Immediate Relatives (IR’s) who were not supposed to be
subjected to extended waiting time and delays that was inherit with the preference
system. IR’s are not subject to numerical limitations and as soon as the legal
relationship is established, they are eligible to make application for an immigrant
visa.

1
The Worldwide Classification System went from six categories which included both family based and
employment based visa to four categories for family based immigration and a whole separate category for
employment based immigrant visas. These changes took place as part of The 1990 Immigration Act and
took effect on October 1, 1991.

1
B. Whose who?

Immediate Relatives: spouses and unmarried minor children of USC’s; parents of


USC’s who are 21 years or older; and certain widows and widowers of USC’s.

1st Preference: unmarried son and daughters (over 21yrs) of USC’s

2nd Preference: this category is further divided into two categories 2A-spouses and
unmarried minor children of LPR’s and 2B- unmarried adult children of LPR’s

3rd Preference: married sons and daughters of USC’s

4th Preference: brothers and sisters (adult) of USC’s

C. Priority Dates

With the exception of IR’s, all visa applicants are assigned a priority date2. This date is
key in determining when a relative can apply for her immigrant visa. Each month the
Department of State issues a “Visa Bulletin” which indicates which visas are being
processed based on the current priority date and the country of the prospective applicant’s
origin.

Depending on the category, the priority dates can move very slowly or not at all. In
recent months, we have seen a huge retrogression in the priority dates where some
classifications retrogressed more than 10 years. This makes the preference system very
uncertain in trying to determine how long it will take for actually be eligible to immigrate
to the United States. For example, in June, Isabella’s date (Dec. 2, 1992) was very close
to being current. In June, the visa bulletin showed that in her category they were
currently processing November 22, 1992. It appeared that she would definitely be able to
apply in July. However, in July, the visa bulletin for the same category showed a
retrogression back to May 1, 1990. This could mean another 4-5 year wait for Isabella.

Priority dates can be extremely important when trying to determine if someone can adjust
their status in the United States or must travel abroad to do consular processing.3 These
factors can determine whether a potential applicant is subject to any of the inadmissibility
grounds that are triggered by departure. More and more people are having to return
2
The priority date is usually established based on the date that the application was received by the USCIS.
It is not based on the date the application was approved. Priority date should be reviewed to make sure it
was properly designated as the receipt date. In certain cases, priority dates can be retained or recaptured
based on an earlier filed petition.
3
Section 245(i) of the INA only applies to those applications which were filed prior to April 30, 2001.
There are grandfathering provisions that are very beneficial and worth reviewing in determining eligibility
under 245(i).

2
abroad to complete consular processing. Most practitioners agree that consular
processing is a risky proposition and should be avoided for any applicants who have
spent time in the United States without authorized status.

A practitioner may find it necessary to determine if a priority date can be “recaptured” or


“retained”. If an adult child is part of his mother’s application in a 2nd preference petition
and then his father naturalizes, his father must then file a separate petition for the adult
child, instead of getting the filing date assigned as the “priority date”- the applicant can
request to “retain” the earlier filing date used on the mother’s initial application. This
could potentially make a huge difference in the time it takes to process an application.
This basic evaluation must be done in every family petition to see if an earlier priority
date may be available.

D. The Visa Bulletin

The chart below is an example of the visa bulletin under the family based classification
system. This is the current bulletin that was issued by the Department of State for
October-2008. The visa bulletin is usually released in the middle of the prior month and
released through the DOS website. http://www.travel.state.gov/visa/visa_1750.html

On the chart below, the listing of a date for any class indicates that the class is
oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all
qualified applicants; and "U" means unavailable, i.e., no numbers are available. (NOTE:
Numbers are available only for applicants whose priority date is earlier than the cut-off
date listed below.)

All Chargeability
CHINA-mainland
Areas Except INDIA MEXICO PHILIP-PINES
born
Those Listed
Family
1st 15APR02 15APR02 15APR02 8SEP92 1APR93
2A* 1JAN04 1JAN04 1JAN04 1JAN04 1JAN04
2B 15DEC99 15DEC99 15DEC99 22APR92 8MAY97
3rd 22JUN00 22JUN00 22JUN00 15SEP92 1MAY91
4th 22OCT97 1MAY97 22MAY97 15JAN95 8MAR86

October 2008

3
I. The I-130 Petition for Alien Relative

The I-130 Petition for Alien Relative is the first petition that must be filed for a family
member to immigrate to the United States. The purpose of the application is to establish
a qualifying relationship to a USC or LPR in order to qualify for a visa.

A. Who qualifies?

If you are a USC, you may petition for the following:

• Spouse
• Unmarried child under 21
• Married son or daughter of any age
• Parent if you are at least 21
• Your brother or sister if you are at least 21 years old

If you are an LPR, you may petition for the following:

• Spouse
• Unmarried child under 21
• Unmarried son or daughter over age 21

B. Who doesn’t?

There are certain categories of people who do not qualify for the petition even if they
have the required relationship.

• An adoptive parent or adopted child, if the adoption took place after the
child’s 16th birthday, or if the child has not been in legal custody for two
years
• A natural parent if the USC obtained his permanent residence through
adoption
• A step-parent or a step-child, if the marriage that established the
relationship took place after the child’s 18th birthday
• A spouse, if both were not present at the marriage ceremony, and the
marriage was not consummated
• A spouse, if you gained LPR status through prior marriage to USC/LPR
unless- 5 years has elapsed since LPR status or you can show by clear and
convincing evidence that prior marriage was not marriage fraud or your
prior marriage was terminated by death of prior spouse

4
• A spouse who is in removal proceedings when the marriage took place-
must live outside the US for a two year period after the date of marriage4
• A spouse, if it has been legally determined that such alien has attempted or
conspired to enter into a marriage for the purpose of evading the
immigration laws (marriage fraud)
• A grandparent, grandchild, nephew, niece, uncle, aunt, cousin or in-law

C. How much does it cost?

The current filing fee for an I-130 is $3555. Payment may be made in the form of a
personal check, money order or cashier’s check. It should be made payable to
Department of Homeland Security.

Most practitioners require their client’s to bring the funds in the form a money order. It
provides a good tracking mechanism for the funds and avoids the risk of a personal check
having insufficient funds. Cash is NEVER accepted by the USCIS. Filing fees for
improperly filed petitions or denied petitions are not refunded. Payments must be for
exact amount required or the entire petition will be rejected.

D. Where does it go?

The I-130 petition is filed with the USCIS Service Center having jurisdiction over your
place of residence. For most of us who live in either Texas, New Mexico, or Oklahoma-
the proper mailing address is:

USCIS
P.O. Box 804616
Chicago, IL 60680-4107

If your client resides in any other state, the best place to go is the USCIS website to find
which Service Center has jurisdiction over the I-130 petition.

Always send your petition through verified form of delivery. Certified mail, return
receipt requested is always a safe bet. Priority Mail also has a confirmation delivery
option. For overnight delivery, Express Mail is usually the best option. Most other
overnight delivery options such as DHL or Federal Express do not deliver to Post Office

4
The condition can overcome with a showing of good faith marriage while in proceedings.
5
Most fees went up on July 31,2007. An application will not be considered filed until the proper fee is
accepted.

5
Boxes. There are countless examples of cases that are won or lost based on the proof of
delivery of an application. With the large volume of application received at the USCIS, it
is common that application are misplaced, misfiled, or lost. The burden is always on the
applicant to show that the application was properly filed and received by the USCIS.

E. What documents do I need to submit with my petition?

First of all, NEVER submit original documents to the USCIS. Always submit a certified
copy of the original and have the original available should it ever be requested. USCIS
NEVER returns documents to the applicant. Any documents not in the English language
must be translated and must contain a certification by the translator that establishes that
the translation is complete and correct and that she is competent to make the translation.
It should not be translated by the petitioner or the beneficiary of the petition. The
translation should include both the foreign language document and the translation.

• Proof of status: You must establish that you are eligible to file the
petition;

USC: If you were born in the US- provide a copy of your birth
certificate issued by a civil authority ( the hospital record
with your tiny footprints will not work!)

A copy of your naturalization certificate or certificate of


citizenship

A copy of Form FS-240, Report of Birth Abroad of a USC


issued by American consulate or embassy

A copy of unexpired U.S. passport6

LPR: A copy of the front and back of your I-551 LPR card. If
you don’t have the card, you may present a copy the stamp
in the passport showing LPR status and the biographic
page.

• Proof of qualifying relationship: You must prove that you have a


qualifying relative;

6
If none of these things are available, there are other ways to prove citizenship- see, Section 9, pg. 3 –
Instructions to I-130.

6
Spouse: A copy of your marriage certificate. Must be issued by
civil authority.

If previously married, that all prior marriages have been


legally terminated

Child and you are the mother: A copy of the child’s birth
certificate showing mother’s name and child’s name.

Child and you are the father: A copy of the child’s birth
certificate showing both parent’s name and marriage certificate.

Child born out of wedlock and you are the father: If the child was
not legitimated before reaching 18 years old, you must file proof
that a bone fide parent child relationship existed between father
and child before reach 21 years.7

Brother or Sister: A copy of your birth certificate and a copy of


the brother/sister’s birth certificate with at least one common
parent. If you have a common father and different mothers, submit
copies of the marriage certificates of the father to each mother and
that the prior marriages were legally terminated.

A Mother: A copy of your birth certificate showing your name and


your mother’s name.

A Father: A copy of your birth certificate showing the name of


both parents. Also submit a copy of the marriage certificate
showing that your parents were born prior to your birth and that
any prior marriages of either your father or your mother were
legally terminated.

A Stepparent/stepchild: A copy of the marriage certificate of the


stepparent to the child’s natural parent showing that the marriage
occurred before the child’s 18th birthday and copies showing that
any prior marriages were legally terminated.

Adoptive parent or adopted child: A copy of the adoption decree


showing that the adoption took place before the child became 16
years old. You must also show that the child was in the legal
custody of and resided with the parents who adopted him or her for
at least two years before or after the adoption.
7
Most common forms of evidence include proof of financial support, living together and interest in child’s
welfare.

7
• 2 photos- one of the petitioner and one of the beneficiary: According
to the instructions, photos are only required for spousal petitions-
However, many practitioners include one passport style photo of each
the petitioner and the beneficiary. Write the name in pencil on the
back of the photo along with the A# if available.

• Form G-325A: This form is required for both the petitioner and the
beneficiary. It must be filed in quadruplicate. It contains biographic
date as to addresses, work history. ( More to come on this form in
different section of this paper)

F. Final thoughts:

Make sure that the I-130 petition is signed by the petitioner. Make sure that all of the
questions are answered fully and accurately. Do not leave blanks- write in “n/a” for any
item that does not apply. The answers to these questions will remain in the file for the
rest of history! It is important to try and be as accurate as possible on dates of entry,
address, employment history, etc.

Make sure all copies are legible and neat. Always keep a copy of whatever documents are
sent to the USCIS in case the file must be re-created at a later date.

8
II. The I-485 Application for Adjustment
of Status

The I-485, Application to Register Permanent Residence or Adjust Status, is the next
application in the process of legally immigrating to the United States through the family
based immigration system. The I-485 application is the form used to adjust status from
many other forms of underlying petition approvals such as asylum status, refugee status,
admission as a fiancé, Cuban Adjustment Act, registry, and employment based petitions.
However, comments in this paper are limited to those adjusting through an approved
family based petition (I-130).

A. Who qualifies?

• You may file an I-485 if you have an immigrant visa immediately


available to you based on an approved immigrant petition. (I-130)
• You are the spouse or child (derivative) and are filing based another
adjustment applicant’s (principal) eligibility to adjust status.
• You entered legally into the United States or you are eligible to adjust
under 245(i)

If the spouse or child is in the United States, the derivatives may either file their
applications concurrently with the principal applicant, or at any time after the principal is
approved, if a visa number is available.

If the spouse or child is abroad, the person adjusting status in the United States should
file the Form I-824, Application for Action on an Approved Application or Petition,
concurrently with the principal’s adjustment of status application to allow the derivatives
to immigrate to the US without delay if the principal’s adjustment application is
approved.

B. Who doesn’t?

• You entered the US in transit without a visa (TWOV)


• You entered as a nonimmigrant crewman
• You were not admitted or paroled following inspection

9
• Your authorized stay expired before filing this application
• You were employed without authorization
• You failed to maintain lawful non-immigrant status, through no
fault of your own or for technical reasons; unless you are applying
because you are: IR of USC, K-1 who married with 90 days, H or
I non-immigrants or special immigrant
• Admitted as K-1, but did not marry the USC who petitioned for
you or K-2 whose parent did not marry the USC who petitioned
• You are or were J-1 or J-2 and are subject to the 2 year foreign
residency requirement and have not complied or been granted a
waiver
• You have A,E, or G nonimmigrant status(diplomats) unless you
complete the form I-508 to waive diplomatic rights or I-566 for A
&G
• You were admitted to Guam as a visitor under Guam visa waiver
program
• You were admitted to US as a visitor under the Visa Waiver
Program (VWP), unless you are applying as IR of USC
• You are already a conditional permanent resident

Many of the ineligibility categories can be overcome through a specified waiver, such as
the J-1 foreign residency requirement, the diplomatic non-immigrants, and visa waiver
program. However, many are very dangerous and should be used in determining a
client’s potential eligibility for adjustment. One problem that can be easily overlooked is
the K-1 or K-2 entrant who does not marry the original petitioner on the K-visa. This is a
bar to adjustment in the future even if married to a USC and there is an approved I-130.

In the family based scenario, the most recent problem to filing for adjustment is the
elimination of the 245(i ) of the INA. Under 245(i), any beneficiary of a petition that
was filed prior to April 30, 2001 is eligible to adjust their status with the filing of a
supplement application I-485 Supplement and the payment of a $1000 penalty. After the
final sunset of this provision, there has been no other mechanism for those who entered
the United States without inspection (EWI) to adjust their status in the United States.
Therefore, those who are the beneficiaries of an approved I-130 have no other option, but
to proceed with Consular processing abroad. This is becoming increasingly more risky
for the client because of the unlawful presence bars under section 212 (a) of the INA.
Most of these bars are triggered by departure and will require a waiver prior to returning
to the US as immigrants. These waivers cannot be adjudicated immediately and usually
require the applicant to wait abroad for at least 6-8 months pending the adjudication of
the waiver. Moreover, the waiver requires the showing of “extreme hardship” on a
qualifying relative.8

8
This creates a huge problem because the statute does not include children as qualifying relatives and the
DHS cannot consider hardship to the children in making their determination.

10
In the past, most unlawful presence waivers were generously granted with an approval
rate in the 90% range. However, recent trends have shown that the DHS Offices abroad
are applying stricter standard for determining what constitutes “extreme hardship” and a
few denials based on the more narrow interpretation have begun to trickle out of various
Consular Posts.9 If denied, the applicant is barred from returning to the United States for
a period of up to 10 years in most cases. This risk alone should be considered and fully
discussed with the client before sending them to process his visa abroad.

Therefore, for those clients who do not qualify for adjustment, an assessment needs to be
made to see if there is any way that the grandfathering provisions of 245(i) can be used to
make them eligible.10

C. How much does it cost?

The current filing fee for the I-485 is $ 1010 or $680 for those under 14 years of age.
You are also required to file a fee of $80 for biometrics. Biometrics are required for all
applicants between the ages of 14-79. The fees for biometrics and the I-485 can be
combined and paid in one check or money order. (i.e. $1010) Biometric Services include
fingerprints, photograph and signature.

D. Where does it go?

The answer to this question depends greatly on where you live. Most adjustment
applications will be filed with the USCIS Lockbox facility having jurisdiction over your
place of residence. For those who live in Texas, New Mexico and Oklahoma the mailing
address is:

USCIS Lockbox Addresses-

For United States Postal Service (USPS) deliveries:


USCIS
P.O. Box 805887
Chicago, IL 60680-4120

9
Several I-601 denials have relied on very old case law to determine how to define “extreme hardship”, see
Matter of W, 9 I&N Dec.1, Matter of Shaughnessy,12 I & N Dec. 810, Matter of Ngai, 19 I &N Dec. 245
10
USCIS issued a detailed memo on grandfathering under 245(i) and the memo is available on AILA
infonet.

11
For private couriers (non-USPS) deliveries:
USCIS
Attn: FBASI
131 South Dearborn, 3rd Floor
Chicago, IL 60603-551

E. What documents do I submit with my application?

The I-485 must be filed with evidence of eligibility. In a family based case the
application should include the following:

• I-130 approval that makes a visa immediately available to you


• A copy of your foreign birth certificate (with translation)
• If applying as the spouse or child of the principal, then you must
file proof of the qualifying relationship
• File Form G-325A, biographic information sheet
• Medical examination form I-693
• Evidence of status- I-94 entry document Arrival/Departure Record
• Copy of passport page with nonimmigrant visa
• Affidavit of support form I-864
• 2 passport style photos
• filing fee $930 + $80=$1010
• I-485 Supplement- if 245(i) eligible w/$1000 penalty

F. Optional filings:

Based on the filing of the I-485 adjustment of status application, applicants can also
apply for authorized employment and a travel permit.12 In order to obtain a work permit
the applicant should file form I-765 and the following:

• 2 photos
12
Caution: not all applicants are eligible for a travel document during the processing of their application.
Any departure, even one with the permission of the USCIS can trigger unlawful presence bars.

12
• money order or check for $340/ no fee if sent concurrently with the
I-485 application

This form can be filed concurrently with the I-485. The normal processing time for this
application is 90 days.

A travel permit can also be filed concurrently with the I-485. This is available in limited
circumstances and the risks associated with departing the United States during the
adjustment process should be carefully evaluated before obtaining permission to travel. In
order to obtain a travel permit the applicant should file form I-131 and the following:

• 2 photos
• money order or check for $305/no fee if sent concurrently with the
I-485
• proof of pending adjustment application issued by USCIS
• passport or identity document
• proof of current status

A travel permit can also be filed after the application has been pending and the need for
travel arises on an emergency basis. Most local offices allow walk in emergency request
for advanced parole. Consult each jurisdiction for local policy on emergency advanced
parole.

G. Final thoughts:

Make sure all questions are answered accurately and completely. The application must
be signed by the applicant and all answers are considered testimony under oath and
subject to the penalties of perjury. LIABIALITY EXTENDS TO BOTH THE
APPLICANT AND THE PREPARER ON MOST OF THESE APPLICATIONS. The I-
485 contains several “hot button” questions that require inquiry on the part of the attorney
prior to the interview in order to assess potential problems that may arise and any
grounds of inadmissibility that may require a waiver at the time of interview.

Section 3 asks several questions which may determine inadmissibility. It is wise to


carefully review each of these questions with your client during the preparation of the
application. Many times clients don’t fully understand what a conviction means or they
may have been told that a deferred adjudication is not a conviction and will have no
impact on their record or that they do not have to disclose that information. Unlawful
employment and the use a false documents may trigger permanent bars and those risks
need to be evaluated up front and before proceeding. Any departure and illegal re-entry
between 1997 and the present can lead to serious issues with eligibility.

13
Prior removals, departures (voluntary or not) or refused admissions can have serious
consequences if not evaluated during the initial assessment of eligibility. Many
applicants have been detained and deported without warning at adjustment interviews.

As legal advisors, is it our responsibility to devise the best legal strategy to assure the
successful outcome for our clients. However, without diligent preparation, complete
knowledge of the facts and the law, Immigration Law can become a minefield with
serious implications both as a legal practitioner and of course, for the client.

III. The I-864 Affidavit of Support

The I-864 Affidavit of Support is the form that is required to be filed with the adjustment
application. The purpose of the form is to provide evidence that the intending immigrant
has the financial means to come into the United States and is not likely to become a
public charge. In family based cases, it must be submitted on behalf of the applicant by
the petitioner (sponsor) or if the petitioner does not meet the required standard, then a co-
sponsor can be used to provide the evidence of adequate financial means.

A. What is the Sponsor’s Obligation?

The person who signs as the sponsor is obligated until one of the following
events occurs:

• The immigrant becomes a USC


• The immigrant can be credited with 40 qualifying quarters of work
• The immigrant departs the US permanently
• The immigrant dies

** It is important to note that divorce does not terminate the obligation of


the sponsor.

***The sponsor must be USC or LPR, over the age of 18 and domiciled in
the United States

B. What is the income requirement?

The income required changes slightly every year and is determined by the
issuance of the yearly poverty guidelines. The sponsor must provide proof

14
that the household income is equal to or exceeds 125% of the poverty
guidelines. The household includes the sponsor, all persons related by birth,
marriage or adoption to the sponsor living in the residence. It also includes
any dependents and any immigrants previously sponsored.

2008 Poverty Guidelines13

Household Size 100% 125%

2 $14,000 $17,500

3 $17,600 $22,000

4 $21,200 $26,500

5 $24,800 $31,500

6 $28,400 $35,500

7 $32,000 $40,000

8 $35,600 $44,500

C. How do I show evidence of income?

The most common way to show evidence of income is through income tax returns and a
letter of employment. The CIS now requires only 1 year of income tax returns and in
certain cases, you may now the new I-824EZ form. If you were not required to file
your income tax, then you must provide an explanation as to why you were not required
to file them. If you are relying on someone else’s income, you must submit one year of
income tax for that person as well. That person will also have to sign the household
member contract or I-864A.

The letter of employment must provide salary, beginning date, and type of work done.
It should be on company letterhead. Recent pay stubs should also be included. This
will be required for all sponsors and members of the household whose income is being
used to reach the guideline income level.

Assets can also be used to meet the income requirement. If you are going to use assets,
you must make sure you include evidence of the cash value and they should be free of
liens or liability. If the assets carry a lien, you must provide proof of the lien and the
amount.

13
Alaska and Hawaii have separate charts which can be located on the form I-864P on the USCIS website.

15
Examples of assets include: cash on hand (bank accounts), stocks, bonds, certificate of
deposits, personal property and real estate. The value of the assets should total at least
five times the amount of the shortfall in income.14

D. What documents do I submit?

The following documents should be submitted along with a notarized I-864 form:

• Proof of current employment-Original letter, pay stubs, etc.


• Federal income tax returns for the most tax year along with W-2’s
• Proof of sponsor’s status as LPR or USC
• Proof of assets(if relying on them to meet the requirements)

All of the above for Co-sponsor (if needed)

E. Final thoughts:

The I-864 requirement can be a huge problem for the adjustment applicant. The law
does not allow a waiver for the public charge ground of inadmissibility and it is very hard
to overcome. It is important that the client realizes what is required and why it is so
important. One potential problem is filing “head of household” or “single” when actually
married. Attorneys should review the documentation carefully before submission to
avoid potential problems at the time of adjustment. Also, be on the lookout for “step-
children” dependents and other convenient tax deductions that the notary told the client
would mean a bigger refund. These returns must be amended in order to qualify under
the required guidelines.

A frequent question that arises is whether the beneficiary’s income can be used in the
calculation of the household income. There are different variations on the interpretation
of this rule, but most USCIS officers agree that as long as the employment was legal
(authorized) and reported as income, it can be used towards household income.

Finally, the issue of a co-sponsor can be ethically tricky. The co-sponsor should fully
understand his obligations under this legal contract and should seek independent advice
as to whether he wants to under take such an obligation. I personally feel that I cannot
advise a co-sponsor as to whether he should sign the affidavit or not. I always provide a
copy of the form with instructions and ask him to seek independent advice.

14
This is not set by law, however general practice in local offices is that of 5X the amount needed to make
up the difference.

16
IV. The I-765 Application for Employment
Authorization
The I-765 is the form used to request an employment document. The applicant for
adjustment of status is entitled to apply for a work permit while his adjustment
application is pending before the USCIS. It usually takes 90 days in which to
adjudicate the application for employment authorization. However, with the current
backlog in processing all applications, the reality of the I-765 processing times is
much longer now ranging between 4-5 months.

The regulations allow for an interim EAD to be issued after 90 days. In order to get
an interim EAD, you should make an appointment through the USCIS website and
take proof of the properly filed I-765 (receipt) and eligibility for the benefit sought
(i.e. adjustment application receipt). District Offices no longer have the ability to
produce interim EAD’s, however, there are specific guidelines for the local offices to
follow to make sure that an interim EAD is issued by the proper Service Center. (See
Aytes Interoffice Memorandum, Dated August 18, 2006)

**This has been a problematic issue for most local offices. The vast majority of
Information Officers have limited knowledge on what steps should be taken to insure
the expedient issuance of an employment document. On going discussions between
the private bar and USCIS are currently taking place to find a workable solution.

Taking the USCIS Memo- dated August 18th, 2008- Issued by Michael Aytes has
been useful on several occasions.

A. How much does it cost?

The filing fee for the I-765 is $340. It should be paid by check or money order
made payable to “Department of Homeland Security”.

B. Where do I file it?

It depends on where you file your adjustment application. If you file your
application at the lockbox, then your I-765 should also be filed at the lockbox in
Chicago, Illinois. If you filed your adjustment with the Texas Service Center,
then it should be filed with the Texas Service Center. You may also file for your
employment authorization by using electronic filing. Electronic filing is done
through the USCIS website by following instructions and with the use of a credit
or debit card.

17
C. When do I file it?

You can file your I-765 concurrently with your application for adjustment of
status or after you receive a receipt for the application. The application must also
include two photos and proof of eligibility.

V. The G-325A-Biographic Data Form


The G-325A is a biographic date form that is used in conjunction with many different
immigration applications. In marriage cases, it is used for both the petitioner and the
beneficiary. It is also required of an applicant for adjustment of status.

The form is rather straight forward and asks very basic questions about parent’s place
of birth, spouse name, previous marriages, etc. It also requires information on where
the applicant has lived and worked for the last five years.

A. What is important about this form?

The main reason I even included this form is because once it is filed with the
USCIS, it becomes part of the permanent file. On more than one occasion, the G-
325A has been used to impeach witnesses in immigration proceedings who have
put less than accurate information as to their place of residence or employment.

When used in the context of a family petition (I-130) or adjustment application (I-
485), it appears to be an innocuous form that must be filled out but without much
thought given to the accuracy of information, dates, etc. It is critical that one try
to provide the most accurate information on the form so that there are no future
negative consequences.

VI. The I-751 Petition to Remove


Conditions of Residence
The I-751 Petition to Remove Conditions of Residence, is the form used for those
immigrants who are granted conditional resident status (CRS). This means that those
who adjusted their status prior to the completion of their two year anniversary of
marriage are given a conditional resident status that expires two years after the date of
adjustment. The petition to remove those conditions must be filed within 90 days of

18
the expiration of the conditional status or they are subject to termination of the legal
status in the United States.

A. Who files this application?

If you are still married, the application should be filed jointly by the applicant and
by the spouse who filed the original petition. However, there is a waiver of the
joint filing requirement.

To qualify for the waiver, you must show one of the following:

• You entered the marriage in good faith, but your spouse has died;
• You entered the marriage in good faith, but the marriage was later
terminated due to divorce or annulment;
• You entered the marriage in good faith, you remain married, but
have been battered or subjected to extreme cruelty by your USC or
LPR spouse; or
• The termination of your status and removal would result in
extreme hardship

*children of conditional residents can be included in the same petition or may file
separately.

B. What documents do I file?

You should file a copy of the LPR card along with two photographs. You must
also file evidence of the relationship:

• Birth certificates of children born of the marriage


• Lease/mortgage documents showing joint occupancy
• Financial records showing joint assets and joint responsibility
• Affidavits from at least two people who have known both of you since
conditional residence was granted and has personal knowledge of the
relationship.
• Any other relevant document to establish a legitimate marriage

If you are filing to waive the joint filing due to death, you must submit a death
certificate in addition to the above documents.

19
If you are filing to waive the joint filing requirement because your marriage has
been terminated, you must submit all of the above and a copy of the divorce
decree or annulment.

If you are filing to waive the joint filing requirement as a battered spouse, you
must submit all of the above and proof of the abuse including any police reports,
medical reports, or legal documents such as protective orders and any other
relevant information regarding the abuse.

C. Where do I file?

If you live in Texas, New Mexico or Oklahoma, you should send your application
to the following address:

USCIS Vermont Service Center


75 Lower Welden Street
P.O. Box 200
St. Albans, VT 05479-0001

D. How much does it cost?

The filing fee for the I-751 is $545 payable by check or money order to the
Department of Homeland Security.

***Only the I-751 Revised 08/25/08 version will be accepted. All other
versions will be rejected which will most likely cause delay in your case.

E. Final thoughts:

The I-751 application is something that we should prepare our client for at the
time of the adjustment application. If they know what to expect and understand
what will be required of them, it will be easy to gather the required documentation
for submission at the end of the two year period.

Unfortunately, many marriages do not survive the two year period and many
waivers are filed each year. As with any immigration application, much thought
must be given to the preparation of waiver application and the evidence used to
support the application. Be aware, that you cannot file for the waiver until the
divorce or annulment is final and many times, the USCIS will not accept the
waiver if a joint I-751 has already been filed. This can cause significant delays in
processing and puts the applicant in danger of being placed into proceedings.

20
Any I-751 that has been denied at the USCIS can be renewed before the
Immigration Judge. The Government has the burden of showing that the marriage
was fraudulent. It is a very difficult case for the government to prove and with
good defensive preparation, most waiver cases can be won in Court.

VII. The N-400 Application for


Naturalization
The N-400, Application for Naturalization, is the final step in the immigration
process. There are different requirements for those wishing to apply for
naturalization. For those who adjusted their status through marriage to a USC and
remain married to that USC, they may apply after 3 years of LPR status. For most
others, the wait is 5 years of LPR status.16

There are also requirement of physical presence in the United States during those
time periods and good moral character during the relevant time periods. Good moral
character is defined by the INA, however, many other factors come into consideration
during the Naturalization process.

Finally, there is an English and American History requirement to complete the


citizenship process.

A. Who is eligible?

• Must be over 18 years of age


• LPR for 5 years
• LPR for 3 years and married to and living with USC for last three
years and spouse has been USC for 3 years
• LPR and have 3 years of service with US Armed Forces and you
are either on active duty or filing within six months of honorable
discharge
• You served during a period of recognized hostilities and enlisted or
re-enlisted (you do NOT have to be a LPR)

B. How much does it cost?

16
There are exceptions for military personnel who are active duty and may apply for expedited treatment of
their applications.

21
The filing fee for N-400 is $675 including biometric services.

C. Where do I send the application:

The application should be sent to the USCIS Service Center having jurisdiction over
the applicant’s place of residence. If you live in Texas, New Mexico or Oklahoma
your application should be sent to:

USINS Texas Service Center17


Attention N-400 Unit
P.O. Box 851204
Mesquite, TX 75185-1204

D. What are the legal requirements?

• You must have been physically present in the US 30 months out of the
five years and absences of more than 6 months, but less than 1 year, will
interrupt continuity, unless applicant can show he did not abandon his
residence
• Good Moral Character for the statutory period (3 or 5 years)18
• Must be able to read, write, speak and understand words in ordinary usage
in the English language
• Demonstrate knowledge of US Government and History19
• Be willing to take the Oath of Allegiance

*Effective October 1, 2008, USCIS implemented a new examination for all


applicants who file the N-400. The new test takes a broader approach to the
historical knowledge required to be come a citizen. A sample test can be
found on the USCIS website. It also expands the required vocabulary for the
reading and the writing part of the examination.

E. What documents are required?

• Proof of LPR status- copy of LPR card front and back


17
This address is likely to change to a direct mail lockbox. The USCIS issued a federal register
announcement on September 12, 2008 and withdrew it on October 10, 2008. The new direct mail address
should be operational before the end of 2008.
18
The USCIS can look beyond the five years to determine good moral character, there are certain
permanent bars to naturalization such as aggravated felonies and murder.
19
There are some exceptions to the language and history requirement for those over age 50 with at least 20
years of LPR status, over 55 and 15 years LPR status and those who are physically impaired and unable to
complete the exam.

22
• Any and all documents related to any criminal conduct at any time
• 2 photos
• Filing fees
• If applying on basis of marriage to USC- then you must submit proof of
marriage for the 3 years.

F. Final thoughts:

The naturalization process is one that can be the end of a very long road in immigration.
However, in this heightened enforcement environment with the Department of Homeland
Security, it is critical that we as practitioners closely scrutinize all cases before
recommending an application for naturalization. While there may be the strong desire for
someone to become a citizen of this nation, many times it is wiser to refrain from the
process to avoid the risk of removal proceedings. Old deferred adjudication cases
continue to raise their ugly heads and expose clients to loss of their status as LPR’s.-
some without the ability to file waivers or have any hope of avoiding removal and
permanent loss of their benefits.

It is our responsibility as legal advisors to review, analyze and advise our clients about
the potential risks associated with any application- naturalization is no exception.

23
Appendix

Forms- Sample Checklists

24
I-130 Checklist

Client Name: ________________________________


Phone Number: ________________________________
Attorney: ________________________________
Assistant: ________________________________

Date

G-28 _________ __________________

Application _________ __________________


Cover Letter/Priority/Certified Mail#________

Application filed _________ __________________

Copy to file _________ __________________

2 Photos- Petitioner/Beneficiary _________ __________________

Money order $355-payable to USCIS _________ ___________________

G-325A for both Petitioner/Beneficiary _________ ___________________

Supporting documents received _________ ___________________


1. Birth Certificate _________ ___________________
2. Children’s Birth Certificate _________ ___________________
3. Divorce Decree _________ ___________________
4. Death Certificate _________ ___________________
5. Naturalization Certificate _________ __________________
6. Work/home addresses _________ __________________
last 5 years

Interview Date: _________ ___________________


Notice sent to Client _________ ___________________

Check client Balance _________ ___________________

25
Client prep before interview _________ __________________

Additional Notes:
__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

26
Adjustment I-485 Administrative Checklist

Client Name: ________________________________


Phone Number: ________________________________
Attorney: ________________________________
Assistant: ________________________________

Date

G-28 _________ __________________

Application _________ __________________


Cover Letter-priority/certified mail#______

Application filed _________ __________________

Copy to file _________ __________________

Criminal history record _________ ___________________

Money order $1010 _________ ___________________

245(i) penalty- $1000 _________ ____________________

I-485A-supplement (if needed) _________ ____________________

Work Authorization I-765 _________ ___________________


2 photos _________ ___________________

G-325 for Applicant _________ ___________________


I-131-Advanced Parole (optional) ________ ___________________
2 photos ________ ___________________

Supporting documents received _________ ___________________


1. Birth Certificate ________
2. Children’s Birth Certificate ________
2a Marriage License ________
3. Divorce Decree ________
4. Death Certificate ________
5. Naturalization Certificate ________
6. 2 Photos of each person ________

7. I-864: ________

27
Income Tax ( 3 years) ________
Letter of employment _________
Paycheck stubs _________
Proof of status/sponsor _________
Income met: yes/no _________

Co-sponsor _________
Income tax _________
Proof of co-sponsor status _________
Letter of employment _________
Household Contract _________

Assets: (5x shortfall) _________

9. Medical Exam _________

10. Work/home addresses ________


last 5 years
11. I-130 Approval Notice ________
12. 245(i) proofs ________
a. grandfathered pet. ________
b. physical presence 12/2000 ________
*not needed if PD prior to 1/14/98*

Work Authorization Received _________ ___________________

Fingerprint Appointment __________ ___________________

RFE-Received/Due date logged __________ ___________________


Client notified __________ ___________________
Sent-Priority mail/certified #________

Interview Date: _________ ___________________

Notice sent to Client _________ ___________________

_________ ___________________

Client prep before interview _________ __________________

Client Balance ($) check _________ ___________________

Attorney prep for case _________ ___________________

28
Relief:

Granted______
I-72 Issued __________ __________________
Due date: __________ __________________
Client Notified/calendared __________ __________________
I-72 sent Priority/Certified#______ __________ __________________

Denied_______

NTA Issued _________

Transferred to Court file _________

Additional Notes:
__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

Potential Issues:

________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

29
I-751 Petition to Remove Conditions Checklist

Client Name: ________________________________


Phone Number: ________________________________
Attorney: ________________________________
Assistant: ________________________________

Date

G-28

Application

Required Documents:
1. Copy of Permanent
Resident Card (front
& back)

2. Evidence of Relationship
a. Birth Certificates of any
children

b. Lease or mortgage
contracts showing joint
occupancy

c. Financial records showing


joint ownership of assets
(bank accounts, insurance
policies, etc.)

d. Financial records showing


joint responsibility for
liabilities (tax returns, utility
bills, credit cards, auto
insurance, etc.)

e. Family
photographs

3. Criminal History Record

4. Money Orders

30
a. $465 for Application

b. $80 for Biometrics

Cover Letter / Application /


Supporting Documentation Filed

Copy to File

Fingerprints

Interview Date

Notice sent to Client

Client prep before interview

Balance $ Check ____________ __________________

Attorney prep for case

Interview:
Granted

Denied

Additional Notes:
__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

31
N-400 Application for Naturalization Checklist

Client Name: ________________________________


Phone Number: ________________________________
Attorney: ________________________________
Assistant: ________________________________

Date

G-28

Application

Required Documents:
1. Copy of Permanent
Resident Card (front
& back)

2. Birth Certificate

5. Criminal History Record

6. Money Orders

a. $595 for Application

b. $80 for Biometrics

5. Two passport style photographs

Cover Letter / Application /


Supporting Documentation Filed

Copy to File

Fingerprints

Interview Date

Notice sent to Client

32
Client prep before interview

Balance $ check ____________ __________________

Attorney prep for case

Interview:
Granted

Denied

Oath Ceremony: ________________________________________________


Copy of Certificate: ________________________________________________

Additional Notes:
__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

33
Michelle L. Saenz-Rodriguez
g

THERE ARE FOUR FAMILY BASED CLASSIFICATIONS

2nd preference:
1st preference: Spouses/minor
Unmarried children-LPR’s
sons/daughters 2B:unmarried
USC’s children<21

3rd 4th preference:


preference: Brothers and
Married Sisters of USC’s
children-
USC’s

1
€ Spouses of USC’s

€ Unmarried children under 21 of USC’s

€ Parents of USC’s

* Are not part of the world preference system-there is


always a visa available!

Priority dates are


assigned to each
application based
on the date that
the application
was received by
the USCIS

2
Published once a month by the
Department of State- usually
available around the 10th of each
month for the upcoming month.

3
Filing Fee $355

I-130 adjudication issues:

Petitioner’s
Status

Beneficiary’s Age

Beneficiary’s
fi i ’
Marital Status

Relationship
between Pet/Ben

4
1. Must be Citizen of the US
2. Legal Permanent Resident-LPR
Resident LPR

Can submit :

US birth certificate
US Passport
Naturalization Certificate
LPR Card
SEE 8 CFR 204.1

€ The age of the beneficiary affects the classification of


approval

ƒ Under 21/unmarried -- “child”

ƒ 21 or older or married— “son or daughter”

5
Critical factor in adjudicating these cases-If USC can
affect classification (preference) of approval

If LPR-makes the difference between approval and


denial

Marital Status Result

Unmarried<21 Immediate Relative

Unmarried>21 1st Preference

Married any age 3rd Preference

6
Marital Status Result

Unmarried<21 2a Family Preference

Unmarried>21 2b Family Preference

Married any age Not eligible

Must prove USC-Spouse


the LPR-Spouse
relationship Parent
Child
between Child
petitioner and Unmarried
Son or
beneficiary is Son or
Daughter
a qualifying Daughter
relationship Brother/Sister

7
Children- Parents-

CSPA Natural

Step children Adopted

Illegitimate
Ill iti t
Step parent
children

Adopted Citizenship
children Act 2000

Filing Fee $1010

8
‰ Immigrant Visa Immediately Available
‰ You
Yo are the spo
spouse/child
se/child (deri
(derivative)
ati e) on the
principal’s application
‰ You entered legally into the United States and are an
IR
‰ You entered legally and have maintained legal status
‰ You qualify under 245(i)
‰ You are be admissible under section 212(a) of the
INA

€ Approval Notice € Money Order payable


€ Birth
Bi h certificate
ifi to “DHS”
DHS for $1010
€ Proof of qualifying € If 245(i) eligible
relationship money order payable
to “DHS” for $1000-
€ Medical examination
penalty fee
€ Evidence of legal
€ If Petition filed after
y/ I-94
entry/ 94
/ / 8
1/14/98-proof f off
€ Photos-passport style
physical presence on
€ Biometrics December 21,2002
Remember all foreign docs must Be very careful with unlawful
be translated presence issues

9
€ I-765 Employment € I-131 Application for
Authorization Travel Document
Document

Not everyone will qualify for


No fee if filed with I-485 Travel Document

Required with every application for adjustment under the family


based categories

Sponsor must meet the poverty


guidelines established by USCIS-
change slightly every year -
Published as the I-864P on the
USCIS website www.uscis.gov

10
Proof of Income Tax Proof of
employment returns 1-3 yrs Sponsor’s status

• Pay stubs • W-2’s must be • LPR Card


• Letter of attached • US Birth Cert.
employment
p y • Natz. Cert.

11
€ Issuance
Iss ance
of Notice to Appear (NTA)
(NTA)- removal
remo al
proceedings-

Filing Fee $545

12
If you are granted resident status prior to your 2 year
anniversary of marriage, you are given CRS- Conditional
Resident Status

Your LPR Card will have an expiration date-

Must file to remove the conditions 90 days prior to the


expiration date of lose your status as LPR.

Must file joint petition w/spouse-I-751*-only revised 08/25/08


version will be accepted

The sponsor is discharged from liability when one of


the following occurs-

1. The immigrant becomes a USC


2. The immigrant has been credited with 40
qualifying quarters of work
3
3. The immigrant departs the US permanently
4. The immigrant dies

Divorce does NOT discharge the sponsor!!!!

13
You can file a waiver if you show one of the following:

Good Faith
Marriage-
spouse
dead

Extreme
Hardship

Good Faith
Good Faith
Marriage-
Marriage-
battered
divorce
spouse

Basically same as good faith marriage

Affidavits
from at
Birth least two
certificates people
of children who know
born to the you as a
Joint marriage couple-
Assets photo
scrapbook!

14
Filing Fee $675

15
‰ Must be over the age of 18
‰ LPR for 5 years
ears
‰ LPR for 3 years if married to and living with a USC
for 3 years-you must have adjusted through that USC
‰ You served in the US Armed Forces during a period
of recognized hostilities

16
€New Naturalization Exam
being implemented
€Broad questions-
questions- extensive
vocabulary-
vocabularyy-p
practice test on
USCIS website

Arrest report

GMC
Final
disposition

Proof of LPR
Status 3 yr applicants-
p /
Passport/LPR
proof of
Card
marriage

2 photos/$675

17
Criminal
Offenses-
Deportable AF
Acts-fraud,
etc

Old
Offenses-
No waiver
exists

Detention/Removal

9 Always send with confirmation delivery-either


priority mail or certified mail return receipt
requested

9 Keep a complete copy of everything that was mailed


including money orders

9 Never send
N d originals
i i l unless
l required
q i d by
b
regulation(almost never)

9 Make sure all applications are signed and dated

18
19
TAB 03
Fundamentals of Business-Based Immigration
The University of Texas School of Law

Presented:
2008 Immigration Law Conference

October 23-24, 2008


San Antonio, Texas

Fundamentals of Business Immigration

Harry Gee, Jr.


and
Dhiraj Nireshwallia

Continuing Legal Education • 512-475-6700 • www.utcle.org


UNIVERSITY OF TEXAS IMMIGRATION LAW CONFERENCE
San Antonio, Texas
October 2008

Prepared by Harry Gee, Jr. and


by Dhiraj Nireshwallia

FUNDAMENTALS OF BUSINESS IMMIGRATION

I. Overview – While it is imperative that an attorney who intends to practice business


immigration law become knowledgeable of the various immigrant and nonimmigrant
classifications to advise their clients competently, it is just as important to educate the
clients of their roles and responsibilities and possible implications for failure to comply
with the laws and regulations.

A. Employer – Importance of Truthfulness

1. Duties and responsibilities

a. Having a bona fide job1

b. Properly and timely posting2

c. Payment of prevailing wages3

d. Notification of USCIS upon termination4

2. Penalties and sanctions

a. Fines – WesternGeco5 paid $19.6 million fraud fine for


“knowingly submitting fraudulent visa applications” for foreign
workers assigned to vessels operating in the Gulf of Mexico. The
company ultimately acknowledged it filed fraudulent applications
for US visas and made fraudulent statements to US consular
officials regarding the nature and destination of its foreign
workers.6

b. Prohibition from filing petitions7


1
20 C.F.R. §656.17(l).
2
20 C.F.R. §656.10(d).
3
20 C.F.R. §656.10(c)(1).
4
8 C.F.R. §214.2(h)(11)(i)(A).
5
US Department of State press release dated June 16, 2006 available at
http://www.state.gov/m/ds/rls/67985.htm, last visited October 14, 2008.
6
Id.
7
20 C.F.R. §655.810.

1
B. Alien Employees – Importance of educating workers about the procedures and
possible legal issues when they need to be articulated and when the attorney is
unavailable for counsel and assistance.

1. Application at US consulate

2. Application for admission and inspection at airport

3. Maintenance of status

a. Change of status8

1) Visa waiver restriction on extension of stay and change


of status9

2) Discretionary reinstatement of status10

a) Out of status implications

1. Cancellation of visa by law11

2. Requirement of new nonimmigrant visa to


return to the US

c) Immigration through adjustment

1) Eligibility for adjustment if inspected and


admitted or paroled into the United States
and eligible for permanent residence with
visa numbers being available at the
discretion of the Attorney General.12

2) Adjustment if physically in the United


States on December 21, 2000 and

8
8 C.F.R. §248 & INA §248.
9
Waiver for persons from certain countries applying as B-1/B-2 for a period not in excess of 90 days with
nonrefundable ticket (at present Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France,
Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, Netherlands, New Zealand,
Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the U.K. It does not
apply to British overseas citizens, British dependent territories’ citizens, or citizens of British Commonwealth
countries). 8 C.F.R. §§212.1(i), 217.2.
10
8 C.F.R. §214(f)(7)(iii).
11
Immigration and Nationality Act §§222(g)(1) -- In the case of an alien who has been admitted on the
basis of a nonimmigrant visa and remained in the United States beyond the period of stay authorized by the
Attorney General, such visa shall be void beginning after the conclusion of such period of stay.
12
INA §245.

2
approvable petition filed on or before April
30, 2001 upon payment of a penalty of
$1,000.00.13

3) Adjustment application after lawful


admission who may have failed to maintain
continuously lawful status, engaged in
unauthorized employment or otherwise
violated terms for an aggregate period not
exceeding 180 days.14

4. Unlawful presence – Definition is different from being out of status


and specifically different for nonimmigrants in the United States for
duration of status, frequently students, or without Departure Records, such
as Canadians. A denial of an application may be required before the
unlawful presence begins.15

a. If an alien is in unlawful presence for more than 180 days


consecutively, upon departure from the country the alien will be
barred for three years.16

b. If an alien remains in unlawful presence for more than one year,


upon departure from the country the alien will be barred from
getting a visa for ten years.17

c. Waivers are available.18

d. Unlawful presence before age 18 cannot be accrued.19

5. Difference between visa and Departure Record

a. Country reciprocity

b. Passport expiration

c. Age out

C. Dual Representation – It is wise to explain to the employer and the employee


your role as the attorney and whom you will be representing so that the other
party may make arrangements to retain appropriate legal counsel.
13
INA §245(i).
14
INA §245(k).
15
INA §212(a)(9)(B)(ii).
16
INA §212(a)(9)(B)(i)(I).
17
INA §212(a)(9)(B)(ii(II).
18
INA §212(a)(9)(B)(V).
19
INA §212(a)(9)(B)(iii)(I).

3
D. Goals and Objectives – A comprehensive understanding of your client’s goals
and objectives is imperative to be successful. Failure to ascertain the client’s
goals and aspirations could result in the severance of the relationship even though
you ultimately obtained approval of the applications filed.

1. Employment continuity – This is frequently the most important


consideration on the part of the employer. If you cannot maintain the
continuity of employment of their key employees, you will likely find the
employer taking the legal work to other legal counsel.

2. Minimizing employer involvement – Establishing procedures to avoid


provision of duplication of information from employer is prudent.
However, the employer must understand that their provision of the job
duties and responsibilities is a necessary prerequisite on each case.

3. Minimizing issues at consulate or at the border – While it is unlikely


that you will be able to completely avoid these issues, through the
education they should be minimized. Also, the information given to the
government officials by your educated client should provide a much better
fact situation in the ultimate resolution.

4. Employment of spouse – Frequently, a major consideration as to


whether an alien will remain in the United States or will be taking an
assignment abroad is the ability of the spouse to be engaged in
employment.

5. Schooling and education of children – This is most important in


determining the dates of moves and transfers, as they frequently will
coincide with the children’s educational needs.

6. Speed of attainment of immigrant visa – This is particularly


important to the alien employees.

a. Elevation to EB-1 or EB-2

b. Cross chargeability – If the spouse is a citizen of a different


country from the principal, there is the possibility that the spouse’s
country’s visa numbers will be more readily available and upon
utilization of cross chargeability, the adjustment can be completed
expeditiously.20

II. Nonimmigrant Visa Classifications21 –

20
INA §202(b).
21
INA §101(a).

4
A. Nonimmigrant business visa category

1. B-1 – an alien (other than one coming for the purpose of study or of
performing skilled or unskilled labor or as a representative of foreign
press, radio, film, or other foreign information media coming to engage in
such vocation) having a residence in a foreign country which he has no
intention of abandoning and who is visiting the United States temporarily
for business or temporarily for pleasure22

When your client wishes to come to the US expediently for business


reasons set forth in law and regulations, this is the most expeditious
method as it does not require a petition and approval of the USCIS. It is a
direct application to US consulate. Generally, the B-1 may not be
employed in the US.

a. Visa Waiver23

b. ESTA – Beginning in January 2009 VW alien must register 72


hours in advance before being allowed to board the plane.24

c. Exceptions to the rule

1) Domestic worker25
2) OCS worker26
3) Professional in lieu of H-1B27

B. Employment Authorized Nonimmigrant Visa Categories

22
INA §101(a)(15)(B), 22 C.F.R. §41.31(a) The term pleasure, as used in INA 101(a)(15)(B), refers to
legitimate activities of a recreational character, including tourism, amusement, visits with friends or
relatives, rest, medical treatment, and activities of a fraternal, social, or service nature.
23
Id at 9.
24
8 C.F.R. part 217 Interim final rule Federal Register / Vol. 73, No. 111 / Monday, June 9, 2008 / Rules
and Regulations (pp. 32440), available at
http://www.cbp.gov/linkhandler/cgov/travel/id_visa/esta/visa_waiver_changes.ctt/visa_waiver_changes.pdf
25
22 C.F.R. §41.31(b) The term "business," as used in INA 101(a)(15)(B), refers to conventions,
conferences, consultations and other legitimate activities of a commercial or professional nature. It does not
include local employment or labor for hire. For the purposes of this section building or construction work,
whether on-site or in plant, shall be deemed to constitute purely local employment or labor for hire;
provided that the supervision or training of others engaged in building or construction work (but not the
actual performance of any such building or construction work) shall not be deemed to constitute purely
local employment or labor for hire if the alien is otherwise qualified as a B- 1 nonimmigrant. An alien
seeking to enter as a nonimmigrant for employment or labor pursuant to a contract or other prearrangement
is required to qualify under the provisions of §41.53. An alien of distinguished merit and ability seeking to
enter the United States temporarily with the idea of performing temporary services of an exceptional nature
requiring such merit and ability, but having no contract or other prearranged employment, may be classified
as a nonimmigrant temporary visitor for business.
26
33 C.F.R. §141, 43 U.S.C 1356.
27
9 FAM 41.31 note N 11.

5
1. H-1B – An alien who is entitled to enter the United States under and in
pursuance of the provisions of an agreement listed in section 214(g)(8)(A),
who is engaged in a specialty occupation described in section 214(i)(3),
and with respect to whom the Secretary of Labor determines and certified
to the Secretary of Homeland Security and the Secretary of State that the
intending employer has filed with the Secretary of Labor an attestation
under section 212(t)(1).28

a. Limitations

1) Annual cap of 65,000 H-1B visas for bachelors or


equivalent.29

2) Annual cap of 20,000 for advanced degrees obtained in


US.30

3) Cap exemption for educational or research institutes.31

b. Filing procedures – For Fiscal Year 2009 USCIS considered for


the lottery selection all applications received by April 5
minimizing delivery and receipt issues.

c. Employer responsibilities

1) Filing Labor Condition Application (LCA) Form ETA


9035 online including.32

2) Payment of filing fee $320.00, fraud fee $500.00,


training fee $750.00 if less than 25 employees
and$1,500.00 if more.33

3) Must maintain public access file including copies of34

a) LCA

b) Prevailing wage documentation

28
INA §101(a)(15)(H)(i)(b1) -- 101(a)(15)(H)(i)(b1) who is entitled to enter the United States under and in
pursuance of the provisions of an agreement listed in section 214(g)(8)(A), who is engaged in a specialty
occupation described in section 214(i)(3), and with respect to whom the Secretary of Labor determines and
certifies to the Secretary of Homeland Security and the Secretary of State that the intending employer has
filed with the Secretary of Labor an attestation under section 212(t)(1).
29
INA §214(g)(1)(A).
30
INA §214(g)(5)(C).
31
INA §214(g)(5)(A)&(B).
32
INA §212(n)(1).
33
INA §212(c)(9)(B).
34
20 C.F.R. §656.10.

6
c) Posting notice or electronic posting

4) Labor Condition application affirmation

a) Good faith effort of determining prevailing wage


and paying same or higher35

b) Hiring of foreign worker does not adversely


affect working conditions of other US workers36

c) No strike or lockout ongoing37

d) Posted LCA at 2 locations or copies provided all


H-1B employees38
e) If employer has 8 H-1 employees of 25 total
employees or 13 of 25-50 total employees or 15%
or more than 50 total employees39

d. Penalties40

1) Range of monetary fines up to $5,000.00

2) Debarment from employing foreign workers

3) Payment of variance from LCA prevailing wage

2. L-1 – an alien who is subject to section 214(c)(2), an alien who, within


three years preceding the time of his application for admission in to the
United States, has been employed continuously for one year by a firm or
corporation or other legal entity or an affiliate or subsidiary thereof and
who seeks to enter the United States temporarily in order to continue to
render his services to the same employer or a subsidiary or affiliate thereof
in a capacity that is managerial, executive, or involves specialized
knowledge, and the alien spouse and minor children of any such alien if
accompanying him or following to join him.41

35
Id at 3.
36
Id at 34.
37
Id.
38
Id.
39
Id.
40
Id at 7.
41
INA §101(a)(15)(L) -- subject to section 214(c)(2), an alien who, within 3 years preceding the time of his
application for admission into the United States, has been employed continuously for one year by a firm or
corporation or other legal entity or an affiliate or subsidiary thereof and who seeks to enter the United
States temporarily in order to continue to render his services to the same employer or a subsidiary or

7
3. J-1 – an alien having a resident in a foreign country which he has no
intention of abandoning who is a bona fide student, scholar, trainee,
teacher, professor, research assistant, specialist, or leader in a field of
specialized knowledge or skill, or other person of similar description, who
is coming temporarily to the United States as a participant in a program
designated by the Director of the United States Information Agency, for
the purpose of teaching, instructing or lecturing, studying, observing,
conducting research, consulting, demonstrating special skills, or receiving
training and who, if he is coming to the United States to participate in a
program under which he will receive graduate medical education or
training, also meets the requirements of section 212(j) of this title, and the
alien spouse and minor children of any such alien if accompanying him or
following to join him.42

4. O-1 – an alien who has extraordinary ability in the sciences, arts,,


education, business, or athletics which has been demonstrated by sustained
national or international acclaim or, with regard to motion picture and
television productions a demonstrated record of extraordinary
achievement, and whose achievements have been recognized in the field
through extensive documentation, and seeks to enter the United States to
continue work in the area of extraordinary ability43; or

(ii)(I) seeks to enter the United States temporarily and solely for the
purpose of accompanying and assisting in the artistic or athletic
performance by an alien who is admitted under clause (i) for a specific
event or events,

(II) is an integral part of such actual performance,

(III)(a) has critical skills and experience with such alien which are not of a
general nature and which cannot be performed by other individuals, or

(b) in the case of a motion picture or television production, has skills and
experience with such alien which are not of a general nature and which are

affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge, and the alien
spouse and minor children of any such alien if accompanying him or following to join him;
42
INA §101(a)(15)(J) -- an alien having a residence in a foreign country which he has no intention of
abandoning who is a bona fide student, scholar, trainee, teacher, professor, research assistant, specialist, or
leader in a field of specialized knowledge or skill, or other person of similar description, who is coming
temporarily to the United States as a participant in a program designated by the Director of the United
States Information Agency, for the purpose of teaching, instructing or lecturing, studying, observing,
conducting research, consulting, demonstrating special skills, or receiving training and who, if he is coming
to the United States to participate in a program under which he will receive graduate medical education or
training, also meets the requirements of section 212(j), and the alien spouse and minor children of any such
alien if accompanying him or following to join him;
43
INA §101(a)(15)(O)(i).

8
critical either based on a preexisting longstanding working relationship or,
with respect to the specific production, because significant production
(including pre- and post-production work) will take place both inside and
outside the United States and the continuing participating of the alien is
essential to the successful completion of the production, and

(IV) has a foreign residence which the alien has no intention or


abandoning; or

(iii) is the alien spouse or child of an alien described in clause (i) or (ii)
and is accompanying, or following to join, the alien.44

5. E-1/2/3 – an alien entitled to enter the United States under and in


pursuance of the provisions of a treaty of commerce and navigation
between the United States and the foreign state of which he is a national,
and the spouse and children of any such alien if accompanying or
following to join him:45

(i) solely to carry on substantial trade, including trade in services or trade


in technology, principally between the United States and the foreign state
of which he is a national;

(ii) solely to develop and direct the operations of an enterprise in which


he has invested, or of an enterprise in which he is actively in the process
or investing, a substantial amount of capital; or

(iii) solely to perform services in a specialty occupation in the United


States if the alien is a national of the Commonwealth of Australia and
with respect to whom the Secretary of Labor determines and certifies to
the Secretary of Homeland Security and the Secretary of State that the
intending employer has filed with the Secretary of Labor an attestation.46

6. TN47

a. New regulation authorizes TN’s to be granted for periods of up to


three years.48

44
Id., §§ (O)(i) to (O)(iii).
45
INA §101(a)(15)(E).
46
INA §212(t)(1).
47
Chapter 16 of NAFTA (signed Dec 8, 1993) relates to immigration issues. To comply with the
agreement, INA §214(e), 8 USC §1184(e), has been added to provide for the admission to the US of
Mexican and Canadian citizens who are coming to engage in professional activities as defined by the
NAFTA. TN status is for Canadian and Mexican persons engaged in activities at a professional level. A TN
visa is similar to an H1 visa but is subject to INA §214(b) and applicants must prove their intent not to
immigrate.
48
Federal Register / Vol. 73, No. 201 / Thursday, October 16, 2008 / Rules and Regulations at pp.61332

9
b. While the general rule is that the alien beneficiary must be
degreed, the exceptions are for business consultants and scientific
technicians. Remember that the scientific technician must be
working under the guidance of a professional.

c. Mexican TN’s must apply at the US consulate.

d. Canadian TN’s can apply at the border.

III. Immigrant Visa Classifications49

A. Overview – While the establishment of eligibility for the employment based


classification through a labor certification or demonstration of exemption
therefrom is a primary concern, another most important factor would be
consideration of annual and country quotas and there implications on the length
of time involved.

1. The worldwide quota for EB-1/2/3 are essentially 140,000 per year but
to maximize the utilization of the numbers there is a complicated
formula by which unused numbers in one classification may be passed
on to other classifications.50

2. There is a worldwide diversity immigrant allocation of 55,000 per


year, which is known as the visa lottery.51

3. The per country limitation is 7% of the total number, which runs to


approximately 24,000 per year.52

4. Determination of consular processing versus adjustment of status.

B. EB-1 Priority Workers53

1. Aliens with Extraordinary Ability54

a. Fields of science, arts, education, business or athletics

b. Demonstrated by sustained national or international acclaim

49
INA §203(b).
50
INA §201(d)(1).
51
INA §201(e).
52
INA §202A, 8 U.S.C §1152(a).
53
INA § 203(b).
54
INA § 203(b)(1)(A).

10
c. Achievements recognized by extensive documentation

d. Will work in area of extraordinary ability

e. Will substantially benefit professionally the U.S.

2. Outstanding Professors and Researchers55

a. Internationally recognized in area of academia

b. Three years experience in teaching or research


c. Joining tenure track position with university

d. Private employer or university for research

3. Multinational Executives and Managers56

a. Worked at least one year abroad as executive or manager

b. For parent, subsidiary or affiliate

c. Assuming executive or managerial position in U.S.

C. EB-2 – Members of profession holding advanced degrees or aliens of


exceptional ability57

1. Advanced degrees or equivalent with exceptional ability in sciences,


arts or business58

a. Will substantially benefit professionally national economy,


cultural or educational interests or welfare of U.S.

b. Services are sought by employer

2. If national interest, then employer not required. Alien can self-


petition59

D. EB-3 – Skilled Workers, Professionals and Other Workers60

55
INA § 203(b)(1)(B).
56
INA § 203 (b)(1)(C).
57
INA § 203(b)(2).
58
INA § 203 (b)(2)(A).
59
INA § 203(b)(2)(B).
60
INA § 203(b)(3)(A).

11
1. Skilled workers with at least 2 years experience or training and
qualified workers not available in U.S.61

2. Professionals with baccalaureate degrees and are members of


profession.62

3. Other qualified immigrants for which qualified workers are not


available in U.S.63

E. EB-5 – Employment Creation64

1. Alien has or is actually engaged in the process of investing $1,000.000


or $500,000 in a rural or economically deprived area

2. Will benefit U.S. economy

3. Will provide employment for 10 U.S. workers not including alien’s


spouse, sons or daughters

61
INA § 203(b)(3)(A)(i).
62
INA § 203(b)(3)(A)(ii).
63
INA § 203 (b)(3)(A)(iii).
64
INA § 203(b)(5)(A).

12
1. Annual and Country Quotas – State Department Visa Bulletin

IV. Strategic Considerations

A. Legal Issues

1. Is the record replete with information and evidence to win appeal?

2. Can an immigration officer rescind approved I-140 petition during I-485


processing?

3. Can you qualify for nonimmigrant visa classification while seeking to


ascertain eligibility to immigrate?

4. Is the consular determination of the applicability of a two-year foreign


residency requirement absolutely controlling?

5. How can cross chargeability be of benefit to immigrants?

a. Amount of money invested to be substantial. In the case of Walsh and


Pollard, 20 I&N Dec. 60 (BIA 1989) interim Decision (BIA) 3111 (BIA
1988), 156 legacy Immigration Service ruled that the amount to be
substantial is dependent upon the nature of the business and because this
was professional services of mobile design, an investment of less than
$25,000 was considered to be substantial.

b. Investment may not be solely for purpose of creating a job opportunity


for alien and spouse to pass the marginality test

c. E-3 application procedure is directly at US consulate

1) Maximum of 10,500 visas per year

2) Maximum validity of 2 years but renewable indefinitely

3) Spouse and children receive E-2 and spouse may obtain work
authorization

13
6. Can a nonimmigrant who is porting travel out of the country if he has a
valid visa from his previous employer? Yes, check State Department
Advisory.

7. Can ICE arrest your client during or after I-485 interview for failure to
register for NSEERS?

PRACTICE POINTER – Government official will likely need a


Memorandum of Law in order to approve an E-2 for a minimal investment. I
recommend to my clients that they invest a minimal of $50,000. However, we
have found that the more US employees hired by the company, the more
likely the E-2 application is to be approved.

9. Does every misrepresentation or alleged fraud require the denial of a


nonimmigrant visa application? No, a misrepresentation has to be
material before it constitutes a bar.

B. Pragmatic Issues

1. How can you keep a nonimmigrant legally working while seeking


resolution to possible issues in various nonimmigrant classifications?

a. Erbas Decision
b. 8 CFR 274(a) – 240-day employment authorization
immediately upon filing
c. Receipt upon filing

2. Can you be assured that consular offices will live up to their word?

3. Will you be able to participate in the nonimmigrant visa processing and


if not, what role or function does an attorney serve at the consular post?

a. Beware of the accuracy of the consulate notation that the 2-year


foreign residency requirement is or is not applicable to the alien
beneficiary. We have found instances in which the consular
official stated that the alien was subject to a 2-year foreign
residency when in fact, he was not. Also, we found instances
where the consular official said the alien was not subject to the 2-
year foreign residency when in fact, he was. The practitioner has a
much more difficult time in the latter circumstance because the
attorney’s advice would seem to take away a possible benefit
granted by the consular determination. However, when dealing
with the immigration officials your independent analysis could be
very significant and important to your client.

14
b. PRACTICE POINTER – Ascertain if your J-1 client is or is not
subject to a 2-year foreign residency, as it can be restricted in their
attainment of H-1 or permanent resident status.

c. It is permissible to change to nonimmigrant categories other than


H without complying with a 2-year foreign residency but if
permanent residency is the ultimate objective a 2-year foreign
residency requirement becomes applicable.

d. Waivers of the 2-year foreign residency requirement can be


obtained for one of the following reasons:

1) Application and DOS approval of interested US


governmental agency

2) Persecution upon return to home country

3) No objection from home country

4) Demonstration of extreme hardship to USC

15
Last
Last Visa
Visaissuing
issuing
First
First&&middle
middlenames name location Sex Birth
names name location Sex Birthdate
date(ddmmyyyy
(ddmmyyyy)
)
(ddmmyyyy) Control
Controlnumber
number

Passport
Passportnumber
number Visa
Visa
Type/Class
Type/Class

Nationality
Nationality

Number Expiration
Numberofofentries
entries Expiration
permitted Notes date
permitted Notessection
section Visa
Visaissue
issuedate
date(ddmmyyyy
(ddmmyyyy)
)
(ddmmyyyy) date
(ddmmyyyy)
ddmmyyyy
(ddmmyyyy) )

Visa
Visa
Number
Number

http://www.poeff.de/Deutsch/Zukunft/Visa-P.jpg
China Reciprocity Schedule Page 1 of 9

China Reciprocity Schedule

Select A Country

Jump to Country Documents

Visa Classification Fee Number of Applications Validity Period


A-1 None Multiple [A] 36 Months [A]
A-2 None Multiple [A] 36 Months [B]
A-3 [1] None Multiple 12 Months
B-1 None Multiple 12 Months
B-2 None Multiple 12 Months
B-1/B-2 None Multiple 12 Months
C-1 None Two 6 Months [B]
C-1/D N/A N/A N/A
C-2 None Multiple 6 Months [B]
C-3 None Multiple [C] 6 Months [B]
D None Multiple 24 Months
E-1 [2] No Treaty N/A N/A
E-2 [2] No Treaty N/A N/A
F-1 None Multiple 12 Months
F-2 None Multiple 12 Months
G-1 None Multiple 36 Months [B] [D]
G-2 None Multiple 36 Months [B]
G-3 None Multiple 36 Months [B] [C] [D]
G-4 None Multiple 36 Months [D]
G-5 [1] None Multiple 6 Months
H-1B None Two 3 Months [3]
H-1C None Two 3 Months [3]
H-2A None Two 3 Months [3]
H-2B None Two 3 Months [3]
H-2R None Two 3 Months [3]
H-3 None Two 3 Months [3]
H-4 None One 3 Months [3]
I None One 3 Months
J-1 [4] None Multiple 12 Months
J-2 [4] None Multiple 12 Months
K-1 None One 6 Months
K-2 None One 6 Months
K-3 None Multiple 24 Months
K-4 None Multiple 24 Months
L-1 $120.00 [E] Multiple [E] 24 Months [3] [E]
L-2 $120.00 [E] Multiple [E] 24 Months [3] [E]

http://travel.state.gov/visa/frvi/reciprocity/reciprocity_3537.html 10/16/2008
China Reciprocity Schedule Page 2 of 9

M-1 None Multiple 12 Months


M-2 None Multiple 12 Months
N-8 None Two 6 Months
N-9 None Two 6 Months
NATO 1-7 N/A N/A N/A
O-1 None One 3 Months [3]
O-2 None One 3 Months [3]
O-3 None One 3 Months [3]
P-1 None One 3 Months [3]
P-2 None One 3 Months [3]
P-3 None One 3 Months [3]
P-4 None One 3 Months [3]
Q-1 [6] None One 3 Months [3]
R-1 None One 3 Months
R-2 None One 3 Months
S-5 [7] None One 1 Month
S-6 [7] None One 1 Month
S-7 [7] None One 1 Month
T-1 [9] N/A N/A N/A
T-2 None One 6 Months
T-3 None One 6 Months
T-4 None One 6 Months
T-5 None One 6 Months
TD [5] N/A N/A N/A
V-1 None Multiple 120 Months
V-2 None Multiple 120 Months [8]
V-3 None Multiple 120 Months [8]

Documents
Most of the documents listed below can be obtained from one of China's Notarial Offices (Gong Zheng Chu).
All Chinese documentation to be used abroad is processed through the notary offices and issued in the form
of notarial certificates. Notarial offices are located in all major Chinese cities and in rural county seats. These
offices are part of the Ministry of Justice structure, but are separate from the people's court system.

Notaries in China do not perform the same functions as their American counterparts. Chinese notaries affix
their signatures and office seal to certificates that attest to the probity of claims made by the applicants. By
regulation, notaries are empowered to issue certificates only after they conclude that the applicant's claims
are true. Notarial certificates of birth, death, marriage, divorce, no criminal record and pre-1981 adoptions are,
at best, secondary evidence of the events they purport to document. Although these certificates are
secondary evidence, they are used because primary evidence is not standardized, is easily forged, and
difficult to evaluate. Notarial certificates are easier to interpret than primary evidence and theoretically
represent an expert judgment on the part of the notarial official as to the facts documented.

The certificates can be based upon primary evidence, secondary evidence, testimony of the applicant or other
parties, or investigation by the notary. For most notarial certificates of birth or adoption, the primary underlying
documentation is the household register (HHR) which appears to be extremely susceptible to fraud and
manipulation, especially if the holder of the HHR lives outside of a major metropolitan area. Notarial
certificates rarely cite the basis for their issuance.*

Thus a certificate in itself may not be adequate evidence of the facts claimed, and is best used in conjunction

http://travel.state.gov/visa/frvi/reciprocity/reciprocity_3537.html 10/16/2008
Visa Bulletin for November 2008 Page 1 of 5

Visa Bulletin

Number 2
Volume IX
Washington, D.C.

VISA BULLETIN FOR NOVEMBER 2008


A. STATUTORY NUMBERS

1. This bulletin summarizes the availability of immigrant numbers during November. Consular officers are
required to report to the Department of State documentarily qualified applicants for numerically limited visas;
the Bureau of Citizenship and Immigration Services in the Department of Homeland Security reports
applicants for adjustment of status. Allocations were made, to the extent possible under the numerical
limitations, for the demand received by October 8th in the chronological order of the reported priority dates. If
the demand could not be satisfied within the statutory or regulatory limits, the category or foreign state in
which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category
is the priority date of the first applicant who could not be reached within the numerical limits. Only applicants
who have a priority date earlier than the cut-off date may be allotted a number. Immediately that it becomes
necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for
numbers will be honored only if the priority date falls within the new cut-off date.

2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored
preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at
least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the
total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area
limit is set at 2%, or 7,320

3. Section 203 of the INA prescribes preference classes for allotment of immigrant visas as follows:

FAMILY-SPONSORED PREFERENCES

First: Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth
preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent
Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds
226,000, and any unused first preference numbers:

A. Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from
the per-country limit;

B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference
limitation.

Third: Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second
preferences.

Fourth: Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three
preferences.

EMPLOYMENT-BASED PREFERENCES

First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not
required for fourth and fifth preferences.

Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6%
of the worldwide employment-based preference
level, plus any numbers not required by first preference.

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Visa Bulletin for November 2008 Page 2 of 5

Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers
not required by first and second preferences, not more than 10,000 of which to "Other Workers".

Fourth: Certain Special Immigrants: 7.1% of the worldwide level.

Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors
in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec.
610 of P.L. 102-395.

4. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to
eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides
that spouses and children of preference immigrants are entitled to the same status, and the same order of
consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202
(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country
limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-
mainland born, INDIA, MEXICO, and PHILIPPINES.

5. On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see
paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means
unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority
date is earlier than the cut-off date listed below.)

All Charge-
ability
CHINA-
Fam- Areas PHILIPP-
mainland INDIA MEXICO
ily Except INES
born
Those
Listed
1st 01MAY02 01MAY02 01MAY02 15SEP92 01MAY93

2A 08FEB04 08FEB04 08FEB04 15JUL01 08FEB04

2B 15JAN00 15JAN00 15JAN00 22APR92 15JUN97

3rd 01JUL00 01JUL00 01JUL00 15SEP92 08MAY91

4th 15NOV97 08JUN97 22JUL97 22JAN95 22MAR86

*NOTE: For November, 2A numbers EXEMPT from per-country limit are available to applicants from all
countries with priority dates earlier than 15JUL01. 2A numbers SUBJECT to per-country limit are available
to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 15JUL01 and earlier
than 08FEB04. (All 2A numbers provided for MEXICO are exempt from the per-country limit; there are no 2A
numbers for MEXICO subject to per-country limit.)

All
Charge-
ability CHINA-
PHILIP-
Areas mainland INDIA MEXICO
PINES
Except born
Those
Listed
Employ-
ment
-Based
1st C C C C C
2nd C 01JUN04 01JUN03 C C
3rd 01MAY05 01FEB02 01OCT01 01SEP02 01MAY05

Other 15JAN03 15JAN03 15JAN03 15JAN03 15JAN03

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Visa Bulletin for November 2008 Page 3 of 5

Workers
4th C C C C C
Certain
Religious U U U U U
Workers
5th C C C C C
Targeted
Employ-
ment
C C C C C
Areas/
Regional
Centers

The Department of State has available a recorded message with visa availability information which can be
heard at: (area code 202) 663-1541. This recording will be updated in the middle of each month with
information on cut-off dates for the following month.

Employment Third Preference Other Workers Category: Section 203(e) of the NACARA, as amended by
Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-
off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the
10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the
following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the
NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the
reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

B. DIVERSITY IMMIGRANT (DV) CATEGORY

Section 203(c) of the Immigration and Nationality Act provides a maximum of up to 55,000 immigrant visas
each fiscal year to permit immigration opportunities for persons from countries other than the principal
sources of current immigration to the United States. The Nicaraguan and Central American Relief Act
(NACARA) passed by Congress in November 1997 stipulates that beginning with DV-99, and for as long as
necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under
the NACARA program. This reduction has resulted in the DV-2009 annual limit being reduced to
50,000. DV visas are divided among six geographic regions. No one country can receive more than seven
percent of the available diversity visas in any one year.

For November, immigrant numbers in the DV category are available to qualified DV-2009 applicants
chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are
available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off
number:

All DV
Chargeability
Region Areas Except
Those Listed
Separately

Egypt 5,900
AFRICA 12,500 Ethiopia 6,300
Nigeria 6,000
ASIA 5,300
EUROPE 11,000
NORTH
AMERICA 3
(BAHAMAS)
OCEANIA 325

SOUTH 550
AMERICA, and

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Visa Bulletin for November 2008 Page 4 of 5

the CARIBBEAN

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which
the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2009
program ends as of September 30, 2009. DV visas may not be issued to DV-2009 applicants after that date.
Similarly, spouses and children accompanying or following to join DV-2009 principals are only entitled to
derivative DV status until September 30, 2009. DV visa availability through the very end of FY-2009 cannot
be taken for granted. Numbers could be exhausted prior to September 30.

C. ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS


WHICH WILL APPLY IN DECEMBER

For December, immigrant numbers in the DV category are available to qualified DV-2009 applicants
chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are
available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off
number:

All DV
Chargeability
Region Areas Except
Those Listed
Separately

Egypt 8,700
AFRICA 15,100 Ethiopia 7,900
Nigeria 6,700
ASIA 6,850
EUROPE 12,900
NORTH
AMERICA 4
(BAHAMAS)
OCEANIA 440
SOUTH
AMERICA, and 750
the CARIBBEAN

D. EMPLOYMENT VISA AVAILABILITY

The level of demand being received from Citizenship and Immigration Services (CIS) Offices indicates that
they have a significant amount of cases with priority dates that are earlier than the established cut-offs. This
is likely to result in slow forward movement of the cut-off dates for most Employment categories during the
next few months. Sudden changes in the CIS demand patterns could result in fluctuations in the monthly cut-
off dates, and retrogressions cannot be ruled during FY-2009.

E. OBTAINING THE MONTHLY VISA BULLETIN

The Department of State's Bureau of Consular Affairs offers the monthly "Visa Bulletin" on the INTERNET'S
WORLDWIDE WEB. The INTERNET Web address to access the Bulletin is:

http://travel.state.gov

From the home page, select the VISA section which contains the Visa Bulletin.

To be placed on the Department of State’s E-mail subscription list for the “Visa Bulletin”, please send an E-
mail to the following E-mail address:

listserv@calist.state.gov

and in the message body type:


Subscribe Visa-Bulletin First name/Last name

http://travel.state.gov/visa/frvi/bulletin/bulletin_4371.html?css=print 10/16/2008
Visa Bulletin for November 2008 Page 5 of 5

(example: Subscribe Visa-Bulletin Sally Doe)

To be removed from the Department of State’s E-mail subscription list for the “Visa Bulletin”, send an e-mail
message to the following E-mail address:

listserv@calist.state.gov

and in the message body type: Signoff Visa-Bulletin

The Department of State also has available a recorded message with visa cut-off dates which can be heard
at: (area code 202) 663-1541. The recording is normally updated by the middle of each month with
information on cut-off dates for the following month.

Readers may submit questions regarding Visa Bulletin related items by E-mail at the following address:

VISABULLETIN@STATE.GOV

(This address cannot be used to subscribe to the Visa Bulletin.)

Department of State Publication 9514


CA/VO: October 8, 2008

http://travel.state.gov/visa/frvi/bulletin/bulletin_4371.html?css=print 10/16/2008
Fundamentals of
Business Immigration

Overview

• IImperative
ti th t an attorneys
that tt b
become
knowledgeable of the various immigrant and
nonimmigrant classifications
• It is equally as important to educate clients of
their roles and responsibilities
p and ppossible
implications

www.HarryGee.com

1
Employer

A Importance
A. I t off truthfulness
t thf l
1. Duties & responsibilities
a. Having a bona fide job
b. Properly and timely posting
c. Payment of prevailing wages
d. Notification of USCIS upon termination

www.HarryGee.com

Employer

2 Penalties & Sanctions


2.
a. Fines – WesternGeco: paid $19.6M fraud fine for
“knowingly” submitting fraudulent visa applications
b. Prohibition from filing petitions

www.HarryGee.com

2
Alien Employees

B IImportance
B. t off educating
d ti workers
k about
b t the
th
procedures and possible legal issues
1. Application at US consulate
2. Application for admission and inspection at
airport

www.HarryGee.com

Alien Employees

3 Maintenance of status
3. stat s
a. Change of Status
1) Visa waiver restriction on extension of stay and change of
status
2) Discretionary reinstatement of status
a) Out of status implications
1
1. Cancellation of visa by law
2. Requirement of new nonimmigrant visa to return to
the US

www.HarryGee.com

3
Alien Employees
b) Immigration through adjustment
1. Eligibility for adjustment if inspected and admitted or
paroled into the United States and eligible for
permanent residence with visa numbers being available
at the discretion of the Attorney General
2. Adjustment if physically in the United States on
December 21, 2000 and approvable petition filed on or
before April 30, 2001 upon payment of a penalty of
$1,000.00
3. Adjustment application after lawful admission who
may have failed to maintain continuously lawful status,
engaged in unauthorized employment or otherwise
violated terms for an aggregate period not exceeding
180 days

www.HarryGee.com

Alien Employees

4 Unlawful
4. Unla f l Presence
• Definition is different from being out of status and
specifically different for nonimmigrants in the United
States for duration of status, frequently students, or
without Departure Records, such as Canadians
• A denial of an application may be required before the
unlawful presence begins

www.HarryGee.com

4
Alien Employees

4 Unlawful
4. Unla f l Presence
a. If an alien is in unlawful presence for more than 180
days consecutively, upon departure from the country
the alien will be barred for three years
b. If an alien remains in unlawful presence for more than
one year, upon departure from the country the alien
will be barred from getting a visa for ten years
c. Waivers are available
d. Unlawful presence before age 18 cannot be accrued

www.HarryGee.com

Alien Employees

5 Difference between
5. bet een visa
isa and Departure
Depart re Record
a. Country reciprocity
b. Passport expiration
c. Age out

www.HarryGee.com

5
Dual Representation

C It is
C. i wise
i tot explain
l i to
t the
th employer
l andd the
th
employee your role as the attorney and whom
you will be representing so that the other
party may make arrangements to retain
appropriate legal counsel

www.HarryGee.com

Goals & Objectives

D A comprehensive
D. h i understanding
d t di off your
client’s goals and objectives is imperative to
be successful. Failure to ascertain the client’s
goals and aspirations could result in the
severance of the relationship even though you
ultimately obtained approval of the
applications filed

www.HarryGee.com

6
Goals & Objectives

1 Employment continuity - frequently the most


1.
important consideration on the part of the employer
2. Minimizing employer involvement - establishing
procedures to avoid provision of duplication of
information from employer
3. Minimizing issues at consulate or at the border
4 Employment
4. E l t off spouse - frequently,
f tl a major
j
consideration as to whether an alien will remain in
the United States or will be taking an assignment
abroad

www.HarryGee.com

Goals & Objectives

5 Schooling and education


5. ed cation of children - important
in determining the dates of moves and transfers
6. Speed of attainment of immigrant visa -
particularly important to the alien employees
a. Elevation to EB-1 or EB-2
b Cross chargeability
b.

www.HarryGee.com

7
TAB 04
Naturalization and Citizenship Issues
NATURALIZATION AND CITIZENSHIP ISSUES

Gary E. Endelman
Immigration Law Group
501 Westlake Park Blvd.
Houston, Texas 77079

Richard S. Fischer
The Law Offices of Richard S. Fischer
114 South Pecan Street
Nacogdoches, Texas 75961

THE UNIVERSITY OF TEXAS


SCHOOL OF LAW

32ND ANNUAL CONFERENCE ON


IMMIGRATION AND NATIONALITY LAW

October 22-24, 2008


San Antonio, Texas
TABLE OF CONTENTS

Page

INTRODUCTION 1

COMMON PROBLEMS, SOLUTIONS AND ETHICS 1

I. Preparing the Application 1

II. Good Moral Character 3

III. English and Civics 6


IV. Some More Practice Pointers 7

CITIZENSHIP FOR CHILDREN 8

I. The Child Citizenship Act 8

II. Derivative Citizenship 12

III. Dual Citizenship 14

LITIGATION ISSUES AND STRATEGIES 16

A. Challenging the Wrongful Denial 16

B. The Statutory Delay Case 17

C. The Plain Old (Pre-Interview) Delay Case 18

D. Disputed Citizenship 19
Citizenship
Appendices

1. Form N-400, pp. 3-9

2. Complaint - Borunda (English/Civics)

3. Final Judgment (Naturalizing Mr. Borunda)

4. Complaint - Medina (Statutory Delay Case)

5. Complaint - Escalante (Disputed Citizenship)

6. Motion for Summary Judgment (Escalante)

i
NATURALIZATION AND CITIZENSHIP ISSUES

Common Problems, Solutions and Ethics in


Naturalization Cases; Citizenship for Children;
Derivative Citizenship; Dual Citizenship; Litigation
Issues and Strategies

Gary E. Endelman
Immigration Law Group
501 Westlake Park Blvd.
Houston, Texas 77079

Richard S. Fischer
The Law Offices of Richard S. Fischer
114 South Pecan Street
Nacogdoches, Texas 75961

INTRODUCTION

There is no way we can cover all these topics in a brief paper


and a one-hour talk. In this paper and our accompanying remarks we
will therefore attempt to point out things we immigration lawyers
do wrong in these areas, bodies of law that we might not always
remember, and approaches to dealing with difficult cases.
Everything we say in this paper and in our remarks presumes that
immigration lawyers follow the three golden rules:

1) KNOW THE LAW - There is no substitute, no short-cut and


no excuse;

2) KNOW THE FACTS - Even if you have to extract them from an


unwilling client; and

3) DO NOT LIE - And do your best to make sure that your


client does not lie either.

COMMON PROBLEMS, SOLUTIONS AND ETHICS


IN NATURALIZATION CASES

I.

PREPARING THE APPLICATION

The Application for Naturalization, Form N-400, serves two


distinct purposes. First, and most obviously, it is the USCIS form
by which a lawful permanent resident initiates the process of

1
becoming a U.S. citizen. But second, and maybe more importantly,
it serves as a check list or “go/no-go” gauge for the lawyer to
decide whether the client should proceed to seek naturalization,
and if so, what obstacles or dangers might lie in the client’s
path.

The N–400 is loaded with dangerous questions. Appendix 1 is


the portion of that form containing those questions. A “yes” or
“no” to some of them can bring out the handcuffs and lead to
removal proceedings, while an inaccurate answer to others can cause
the N–400 to be denied. Specifically, you need to hammer your
client on Part 10, Section A, questions 1, 2 and 3 (re claiming to
be a citizen, voting and registering to vote), because a “yes” can
lead to removal. Pay particular attention to Part 10, Section D,
questions 15-21 (the criminal stuff). There are two things you
need to do about those questions before submitting your client’s
N–400. First, you need to be absolutely sure to make complete and
total disclosure. Second, with regard to any “yes” to those
questions, you need to understand for yourself how it is that the
affirmative answer will or will not produce a denial of the N–400
and/or lead to removal proceedings. The same goes for Part 10,
Section D, questions 22-28, and 30-32 (other good moral character
questions).

This is what you should be doing here: If while preparing an


N–400 you realize that your client obtained her LPR status
improperly (marriage fraud, phony labor certification, falsely
claimed to be single to immigrate through second preference, etc.),
you most likely need to tell her that you cannot submit the N–400
for her, and explore other possibilities to try to help her fix her
status. Second, if in preparing the N–400 you realize that your
client is at risk of removal proceedings with no remedy, you tell
him that and send him home. Third, if when preparing the N–400 you
realize that your client has removal exposure (say an old UCW
conviction), but is eligible for naturalization and has defenses in
removal proceedings, you need to make full lawyer disclosure, tell
your client what might happen and what you think the chances are,
and let your client choose whether to continue.

An underlying problem here is that all of us have a human


tendency to cover up things we have done of which we are
embarrassed. This author (Fischer) hates telling people that he
was cited for using the Fall Creek Bridge instead of a privy when
he was a beer-drinking undergraduate in 1975. He also doesn’t like
mentioning the theft arrest a couple of years later for which he
got deferred disposition, and his lawyer told him that it was not
on his record and he never had to mention it anywhere. However, if
Fischer is doing an N–400 he needs to come absolutely clean about
these things. The reason is not that either the PIP or the theft
charge could lead to removability; however, once he goes to the
interview and swears to the truth of the statements in the N–400,
his omission of these incidents from that application become “false

2
testimony under oath” for the purposes of determining whether he
has good moral character. If the interviewing officer decides that
he made those false statements not because of embarrassment, but
for the purpose of obtaining an immigration benefit
(naturalization), he has no GMC for the next five years. Remember,
the “false testimony for the purpose of obtaining any benefits
under this Act” that negates good moral character pursuant to §
101(f)(6) of the Act does not have to be material; it only has to
be false and given with the subjective intent to obtain immigration
benefits. See Gonzalez-Maldonado v. Gonzales, 487 F.3d 975, 977
(5th Cir. 2007).

II.

GOOD MORAL CHARACTER


An applicant for naturalization must, for the five years
preceding submission of the N–400 and continuing to the date of
swearing-in, have been and still be “a person of good moral
character, attached to the principles of the Constitution of the
United States, and well disposed to the good order and happiness of
the United States.” INA § 316(a)(3). Although we often refer to
this as the “good moral character” (GMC) requirement, we should not
forget that “good order and happiness” component.

The approach to determining good moral character is as


follows: First, look at INA § 101(f) sub-paragraphs 1 through 9,
and determine whether the client is statutorily precluded from
establishing GMC. If the answer is in the negative, then look at
the regulatory gloss on GMC, found at 8 C.F.R. § 316.10, which
actually purports to exclude as a matter of law from GMC certain
persons who are not excluded by § 101(f) of the Act. There is
fertile ground for litigation there, but that is for another
discussion. If we make it past those land mines, then look we to
the generally-accepted standard for GMC, which means character
(i.e. behavior) “that measures up to that of the average citizen of
the community in which the applicant resides,” and measure the
applicant’s behavior for the previous five years against this
standard. Remember that GMC does not mean “moral excellence,” and
it “is not destroyed by an ‘a single lapse,’” Matter of B-, 1 I. &
N. Dec. 611 (BIA 1943).

We will frequently disagree with Immigration over whether our


clients possess the required GMC. The following are cases that are
useful on our side of the argument:

Beilleke-Tolosa v. Ashcroft, 385 F.3d 708 (6th Cir. 2004)--


Adjustment case, but useful law about use of arrest reports and
similar documents. P. 709-710--IJ denies adjustment because he
believed allegations of sexual misconduct in police reports, even
though alien convicted of only simple assault and disorderly

3
conduct. P. 712--Sixth Circuit says IJ should not look at police
reports absent corroborating evidence, particularly when alien
denies the allegations. See also Matter of Thomas, 21 I. & N. Dec.
20 (BIA 1995) and Matter of Arreguin, 21 I. & N. Dec. 38 (BIA
1995).

Yaqub v. Gonzales, 2006 U.S. Dist. LEXIS 36727 (S.D. Ohio


2006)--great case. On § 310(c) de novo hearing, federal district
court grants naturalization to guy who had 2 DWI’s during statutory
period, because his positives outweighed his negatives. This
opinion is a textbook about how to build your positives to show
good moral character.

Angel v. Chertoff, 2007 U.S. Dist. LEXIS 78084 (S.D. Ill.


10/22/07)--Immigration denied N–400 because applicant was on felony
probation for trying to take $90,000.00 to Mexico in an ice chest.
Court disregards regulation saying people on probation cannot
naturalize, finds GMC, and orders applicant naturalized. Good
review of the general standards for GMC.

Plewa v. Immigration and Naturalization Service, 77 F. Supp.


2d 905 (N.D. Ill. 1999). Tremendous decision on good moral
character; deserves reading. Plaintiff had an arrest that she
failed to mention on the N–400. It arose out of a lingerie-
modeling incident. INS denied application because of “false
testimony” negating good moral character under § 101(f)(6).
Federal district court grants naturalization, after examining in
detail the law of misrepresentations and good moral character with
regard to naturalization proceedings, and concludes with the
following language: “In short, people like Plaintiff are the
backbone upon which this country was built: hard-working, decent
people who come to this country with the hope of a better life,
willing to contribute to society by rolling up their sleeves, build
a business, take care of those less fortunate, and learn a new
language and culture. Plaintiff will make a fine American citizen.
Would that everyone who is a natural born citizen by the mere
accident of birth be as upstanding as Plaintiff. . . . The Court
grants Plaintiff’s application for citizenship and welcomes her to
the great melting pot of these United States.”

Puciaty v. U.S. Department of Justice, 125 F. Supp. 2d 1035


(D. Hawaii 2000)--INS denied, then fought in court, plaintiff’s
naturalization application on the basis that plaintiff owed a civil
debt arising out of a default judgment. Court analyses debts and
good moral character and plaintiff wins.

Tan v. United States Department of Justice, Immigration and


Naturalization Service, 931 F. Supp. 725 (D. Hawaii 1996)--P. 727--
Philippine national immigrated as unmarried when he was secretly
married. P. 727--enlisted in U.S. Army in 1981. His military
service was distinguished, and he got numerous medals. He applied
for naturalization under INA § 329 (for people in active duty

4
military service during periods of hostilities). P. 727-28--INS
denied natz application because of lack of good moral character
because Tan gave false testimony for purpose of obtaining benefits
under INA. P. 728--court cites to INA § 310(c) and notes that
review is de novo. P. 728--question is whether Tan can meet one-
year regulatory good moral character requirement of 8 C.F.R.
329.2(d). P. 728--INS relied on conduct before statutory period to
deny him naturalization. P. 731--while events outside the time
period may be historically relevant to the good moral character
determination, these events cannot in and of themselves preclude a
finding of good moral character. "The court is bound by the
regulations and cannot use events substantially outside the time
period set forth in the regulation as the basis for denying
Sergeant Tan's application for naturalization." P. 731--a previous
finding that a person's testimony lacked credibility does not alone
justify the conclusion that false testimony has been given under
the meaning of INA § 101(f)(6). To reach that conclusion, INS must
go beyond suspect credibility and come up with "hard evidence" that
the petitioner was in fact lying for the purpose of obtaining
immigration benefits. P. 732--court refuses to continue to punish
petitioner for his actions in 1981 and 1983, finding that would be
"tantamount to eternal damnation." P. 732--here the court clearly
states that it is "examining the facts and law anew, as the court
must do in a de novo review . . . ."

Rodriguez-Gutierrez v. Immigration and Naturalization Service,


59 F.3d 504 (5th Cir. 1995)--Simon Azar-Farr won this one. P. 506-
-BIA found a guy to lack good moral character because he gave false
testimony at his deportation hearing. P. 507--the IJ and BIA had
decided that the man lacked good moral character because his
testimony at his deportation hearing lacked credibility. P. 507--
"A finding that testimony lacked credibility does not alone justify
the conclusion that false testimony has been given. False
testimony means knowingly giving false information with an intent
to deceive.” P. 507-08--"As a California district court stated, to
assume that 'a witness whose testimony is not accepted by the trier
of fact is a perjurer and not a person of good moral character . .
. is not only legally invalid, but is contrary to the basic sense
of fairness upon which our legal system is founded.' Acosta v.
Landon, 125 F. Supp. 434, 441 (S.D. Cal. 1954)."

Kungys v. United States, 45 U.S. 759, 779-780 (1988)--the INA


§ 101(f)(6) business that a person shall be deemed to lack good
moral character if he "has given false testimony for the purpose of
obtaining" an immigration benefit does not have any materiality
requirement. However, "testimony" is limited to oral statements
made under oath, and that section applies only to "those
misrepresentations made with the subjective intent of obtaining
immigration benefits." P. 781--and the government must prove that
intent.

Nemetz v. Immigration and Naturalization Service, 647 F.2d 432

5
(4th Cir. 1981)--homosexuality does not negate good moral character
where conduct is private, consensual and without harm to the
public. P. 435--even though Virginia criminalized petitioner's
conduct by its sodomy statute, court holds that whether person is
of good moral character for natz purposes is a question of federal
law and it is not appropriate to look to state law to make that
decision. P. 436--"only those acts harmful to the public will be
appropriate bars to a finding of good moral character . . . ."

Castiglia v. Immigration and Naturalization Service, 108 F.3d


1101 (9th Cir. 1997)--applicant had 1997 murder conviction. Court
rules that conviction for murder, an aggravated felony, is a
perpetual bar to GMC. [Note, however, that most aggravated felonies
committed before November 29, 1990 do not constitute perpetual bars
to establishing GMC. Read Matter of Reyes, 20 I. & N. Dec. 789
(1994)].

Matter of Guadarrama, 24 I. & N. Dec. 625 (BIA 09/23/2008)--


Applicant for cancellation of removal had falsely claimed to be a
U.S. citizen on Form I-9. PP. 626-27--In a nice reading of §
101(f) of the INA, BIA decides that such a false claim does not
foreclose a finding of good moral character. PP. 627--Nice and
brief review of GMC cases the BIA now looks to.

III.

ENGLISH AND CIVICS

I will keep this brief, because it is fairly straight-forward.


Your client may be exempt from the English requirement, given a
particularly simple test, or exempt from the English and civics
requirements altogether, based on age, how long he has been a
permanent resident, and/or disability. All of these exemptions are
set out in § 312 of the Act. Also remember that a person who
passed the English/civics test at the final stage of legalization
under § 245A of the Act is not required to do so again at her
naturalization interview, but is required only to speak English
sufficiently so that the interview can be conducted in that
language.

If you client is not exempt, here are the standards:

INA § 312(a)(1) reads (in pertinent part):

Provided, That [sic] the requirements of this paragraph


relating to ability to read and write shall be met if the
applicant can read or write simple words and phrases to
the end that a reasonable test of his literacy shall be
made and that no extraordinary or unreasonable conditions
shall be imposed upon the applicant . . . .

8 C.F.R. § 312.2(c)(2) [re scope of civics examination] reads:

6
In choosing the subject matters, in phrasing questions
and in evaluating responses, due consideration should be
given to the applicant's education, background, age,
length of residence in the United States, opportunities
available and efforts made to acquire the requisite
knowledge . . . .

In re Petition of Blasko, 466 F.2d 1340, 1341 (3rd Cir. 1972)--


Hungarian national denied natz because not literate in English
entitled to appear before federal district court to demonstrate his
ability to write English. This case means exactly what it says -
if Immigration is not satisfied with your client’s English
abilities, and you exhaust your administrative remedy by doing the
administrative appeal on the N–336, you are entitled to de novo
review before a federal district judge. Attached as Appendix 2 is
a complaint seeking such relief. We won. See Appendix 3.
IV.
SOME MORE PRACTICE POINTERS

Selective Service Registration - Willful failure to register for


Selective Service does not negate GMC, but weighs heavily against
the applicant’s claim to be “well disposed to the good order and
happiness of the United States.” But Selective Service issues can
usually be dealt with. First, the obligation to register applies
only to males between their 18th and 26th birthdays. If your client
is a man and within that age range, register him. If he never
registered and he should have, but is over 31 years old, the last
moment of his failure to register was over five years ago, which
does not hurt him. If he is a man between 26 and 31 and failed to
register, find out why. It will almost never be a willful failure;
typically the guy either never knew about the Selective Service
registration requirement, or thought it did not apply to him
because he was not a U.S. citizen.

Unpaid Child Support - Willful failure to support one’s dependents,


just like willful failure to register for Selective Service, counts
against an applicant in the GMC calculation, but is not fatal in
and of itself. Usually, even if a person got behind in child
support, if they have worked out a payment plan and are paying on
schedule, the USCIS will be satisfied. Where there is no court-
ordered child support and your client has children with another
person who live with that other parent, and is supporting the
children with some sort of informal understanding with the other
parent, it is nice to bring in something signed by the other
parent, stating how your client is a good parent and pays all sorts
of money and buys things for the child(ren).

Unpaid Taxes - Immigration treats unpaid taxes very much like


unpaid child support. If your client got behind on her federal

7
income taxes, and now wants to naturalize, you need to have the
client work out a payment plan with the IRS, and bring to the
naturalization interview proof of that payment plan and prove that
your client is paying. That will usually solve the problem.
CITIZENSHIP FOR CHILDREN

I. The Child Citizenship Act

Effective as of February 27, 2001, the Child Citizenship Act


(“CCA”) amended Section 320 of the Immigration and Nationality Act
to grant derivative US citizenship to certain foreign-born
children, including adopted children of US citizens. Children who
benefit from Section 320 as modified by the CCA did not acquire US
citizenship at birth under INA Section 301 because their parents
did not spend enough time in the USA before the child was born to
satisfy transmission requirements. For children born abroad to one
US parent and one non-US citizen parent, it is no longer necessary,
as had been the case, for the non-US parent to become a naturalized
citizen. The following classes of children benefit from the CCA:

Orphans with a full and final foreign adoption or adoption


finalized after coming to USA.

Biological or legitimated children.

Certain children born out of wedlock to mother who


naturalizes.

Adopted children who satisfy the two-year physical and legal


custody requirement. A US parent must adopt the step-child
for that child to benefit from the CCA. Children who have
immigrated to the USA on an IR4 visa so that they might be
adopted do not become citizens until the adoption decree is
final. Also, at the time of the adoption they must be under
age 18.

The law is not retroactive so children 18 and above as of February


27, 2001 do not benefit. They must apply for naturalization per the
normal process that all adult permanent residents must satisfy. The
Fifth and Ninth Circuits have both held that the CCA does not apply
to children who were 18 or older on February 27, 2001. Nehme v.
INS, 252 F. 3d 415 (5th Cir. 2001); Hughes v. Ashcroft, 255 F. 3d
752 (9th Cir. 2001). The Board of Immigration Appeals has also
issued a precedent decision along these same lines. Matter of
Rodriguez-Tejedor, 23 I&N Dec. 153 (July 24, 2001).

Step-children DO NOT qualify as children under the CCA. Step-


children have never been considered as “children” for citizenship
purposes, though they are for visa purposes, and the CCA did not

8
alter or modify this traditional exclusion.
US embassies or consulates WILL NOT issue consular reports of birth
to children who acquire citizenship under the CCA; reports of birth
are issued only to children who acquire citizenship at birth and do
not have to immigrate to the USA as do CCA beneficiaries.

A child with permanent resident status who lives in another country


must come back to the USA with their green card in order to qualify
under CCA. The CCA only applies to children who can demonstrate
actual residence in the United States. It is not for children who
want to come here just to naturalize and then turn around and go
home again somewhere else. “Residence” in the USA is a term of art
for immigration purposes and is defined in INA Section 101(a)(33)
as “ the place of general abode . . . principal, actual dwelling
place in fact without regard to intent.” For this reason, in order
to satisfy the “residence” requirement of Section 320, the child
must prove to the Consular Officer who adjudicates the application
for the immigrant visa that the he/she really does have an actual,
current dwelling place in the USA. It is not enough for the citizen
parent to tell the Consul that they intend to reside there.

Children of US military or US Government civilian employees,


temporarily stationed abroad, will be considered to be “residing in
the USA” for purposes of Section 320 acquisition.
The CCA is pretty fast. Under the so-called “Buffalo Project”,
children who enter the USA on IR-3 (indicia of adoption abroad)
immigrant visas can expect to get their Certificates of Citizenship
within 45 days of entering the USA. This program is not currently
available to any other category of immigrants that may may have a
claim to citizenship under the CCA. This program does NOT apply to
natural children or IR-4s that may automatically derive upon
admission under Section 320.

The CCA authorizes automatic acquisition of citizenship and


protects adopted children against involuntary removal. The child
must be admitted to the USA as a lawful permanent resident. This
means that children who live abroad must enter as an immigrant to
take advantage of the law. The child does not have to apply for
such citizenship. There is no naturalization application that must
be approved. The day the child who benefits is admitted as an
immigrant, that child is a US citizen! As evidence of such
citizenship, the parent can file form N-600 (Application for
Certificate of Citizenship) and submit it to the local USCIS
office with jurisdiction over their place of residence. If you
want a Certificate of Citizenship for an adopted child, file Form
N-643. For children who have already immigrated to the USA, the
parents do not have to make second copies of any evidence, or
translate any documents, that should already be in the USCIS files.
The parent may also want to apply for a passport from the State
Department. Neither the passport nor the Certificate of Citizenship

9
create the citizenship but merely serve to document it. To apply
for a US passport, a child who derives citizenship under the CCA
must do the following: (1) present evidence of the qualifying
relationship to a US citizen parent such as a certified copy of the
foreign birth certificate if born abroad to an American, or, if
adopted, a certified copy of the final adoption decree; (2) child’s
foreign passport with the USCIS temporary green card I-551 stamp or
the child’s resident alien card (I-551); and (3) valid ID for the
parent.

If the child’s parents are divorced, evidence of legal custody must


be shown. If the child is an orphan, such evidence must be brought
forward. If the child was born out of wedlock, be prepared with
proof of legitimation. There are 3 established ways to prove up
legal custody: (1) biological child living with natural parents who
are presumed to have legal custody; (2) biological child residing
with one parent and other is deceased- living parent is presumed to
exercise legal custody; (3) biological child born out of wedlock
but legitimated and residing with natural parent endows that parent
with legal custody. Where there has been an award of joint custody
in a divorce, the USCIS will consider both parents to have legal
custody. If the issue of custody is not addressed in a divorce
decree or separation agreement, the determination of custody will
be based on the laws of the state or country of residence.

The CCA also amends Section 322 of the Immigration and Nationality
Act so that children, both biological and adopted, of US citizens
who are born and live abroad, so that they do not come to the USA
as permanent residents, and who are not US citizens at birth, can
still apply for a certificate of citizenship upon satisfaction of
the following criteria:

At least one parent, not both, must be a US citizen, whether


by birth or naturalization.

The US citizen parent has been physically present in the USA


for a total of at least 5 years, at least 2 after age 14. If
the citizen parent cannot meet this, the physical presence of
a citizen grandparent can be substituted. Include Supplement
A to N-643 in this event. It is not necessary for the citizen
grandparent to be alive so long as he/she met the physical
presence requirement of Section 322 (a)(2)(B) at the time of
death.

Unlike birthright citizenship under INA Section 301(g),


physical presence AFTER the birth of the child counts.

Child is under 18.

Child lives abroad in the legal and physical custody of the US


citizen parent and has been lawfully admitted to the USA as a
nonimmigrant. Normally, the child will come to the USA on a B-

10
2 tourist visa for the naturalization interview but the
Consular Officer will want to see the appointment notice
issued after the N-600K filing.

If the child does not reside in the USA, that child will not
automatically qualify under the CCA. However, the parent may still
apply for citizenship through submission of the N-600K (Application
for Citizenship and Issuance of a Certificate under INA Section
322) to any USCIS District office in the USA; complete forum
shopping. Upon approval of the application and the taking of an
oath of allegiance, assuming the child is old enough to understand
the significance of an oath, citizenship attaches.

Children who acquire citizenship under Section 322 do not


automatically become US citizens. That is why they have to submit
the N-600K and get it approved This is a form of naturalization.

If the US citizen parent has died, then a US citizen grandparent or


legal guardian may apply on behalf of the child within 5 years of
the parent’s death. If the physical presence of the deceased
parent is used to fulfill the physical presence requirement of INA
322, the citizen grandparent must have been alive at the time of
the citizen parent’s death. Once this requirement is met, the US
citizen grandparent or duly-appointed US citizen legal guardian can
file the N-600 (or N-600K) on behalf of the eligible child whose US
citizen parent had died during the preceding 5 years. The joint
interview of the citizen grandparent/legal guardian and child can
take place after the 5 year time period at any time while the child
is under age 18. While the child has to reside outside the USA, the
US citizen grandparent/legal guardian can reside anywhere.

The question arises as to the eligibility of children born out of


wedlock who have not been legitimated for derivative citizenship
whether under Section 320 or Section 322.
Such children were previously eligible for derivative citizenship
through former Section 321 that was repealed when the CCA took
effect. The CCA has no specific provision for out of wedlock
children. For this reason, the legacy INS asked for the DOJ Office
of Legal Counsel to tell them if a child born out of wedlock who
had not been legitimated could derive citizenship under the CCA.
The answer can back in the affirmative. Assuming satisfaction of
all other applicable requirements, a child born out of wedlock who
has not been legitimated is indeed eligible for derivative
citizenship when his/her mother becomes a naturalized citizen of
the USA.

If a child automatically will derive US citizenship under the CCA,


whether through adjustment of status or entry on an immigrant visa,
there is no requirement to include an affidavit of support on Form
I-864 that would otherwise be applicable.

The child of a member of the Armed Forces has special legal

11
challenges and a recent amendment to Section 322 (d) that took
effect on January 28, 2008 (“ National Defense Authorization Act
for FY 2008)(Public Law 110-181) made things a bit easier. Section
322 (d) allows the US citizen parent to count the time abroad as
physical presence in the USA and allows the child to naturalize
overseas. These changes apply only if the parent is in active
military service; the new changes do not benefit a child of a
federal contractor or civilian employee. The N-600K is filed with
the Nebraska Service Center of USCIS or with the USCIS office
abroad with jurisdiction, and fingerprinting of the child before
deployment of the parent will be expedited by any Application
Support Center; after deployment, fingerprinting, interview and
final swearing-in can take place abroad. A step-child of a soldier
is not covered while an adopted child is covered if all legal
criteria are met. The child of a service member is not required to
have the green card or any kind of lawful admission to the USA.
There is no longer any requirement for the child to return to the
USA to take the oath of allegiance before a USCIS officer to
acquire citizenship. For all other cases, the naturalization
process for a child under section 322 of the INA cannot take place
solely overseas. Section 322(d) of the INA exempts any child of an
Armed Forces parent who is residing abroad per official orders from
the temporary physical presence, lawful admission and maintenance
of lawful status requirements under section 322(a)(5). However, in
order to qualify under Section 322(d), the child must not qualify
under Section 320 and a Section 320 child, including the child of
a member of the Armed Forces, must be a green card holder.
II: Derivative Citizenship

Many people are US citizens but do not know it. Factors that
influence acquisition of citizenship at birth through parents are:
(1) date child was born; (2) citizenship of parents- e.g. one US
parent, two US parents; (3) whether the US citizen parent or
parents had to and did reside in the USA for a specified period of
time; and (4) whether the child was required to and did reside in
the USA for a specified time. On this last point, the retention
requirement was repealed on October 10, 1978; if your client was
under age 26 on that date, they no longer have to satisfy any
retention requirement. A child born abroad to two US parents
acquires US citizenship at birth under Section 301(c) of the INA.
One of the parents, but not both, must have resided in the USA
before the child was born, though not for any specific period of
time. Residence after the child is born does not count. The parent
need not have been a citizen at the time of such residence. A child
born abroad in wedlock to one US and one non-citizen parent derives
US citizenship under Section 301(g) if the US citizen parent was
physically present in the USA before the child was born for a
specified period of time. Since November 14, 1986, the physical
presence is 5 years, 2 after age 14; between Dec. 24, 1952 and Nov
13, 1986, the physical presence requirement was 10 years, 5 after
age 14.

12
If the child is born abroad out of wedlock to a US citizen mother,
that child becomes a US citizen at birth under section 309(c) if
the mother was a USC at the time of birth and had been physically
present in the USA for one continuous year. By contrast, the burden
of proof is MUCH higher if the child is born abroad out of wedlock
to a US citizen father.
Section 309(a) of the INA sets forth the applicable criteria:

A blood relationship between the child and father is


established by clear and convincing evidence;
The father was a US citizen at the time of birth of child;
The father(if alive) had agreed in writing to support the
child until age 18; and
While the child is under age 18, one of three things happen:
(1) legitimation under the law of their residence or domicile;
(2) father acknowledges paternity in writing under oath; or
(3) paternity of child is established by judicial decree.
Remember this rule: “The applicable law for transmitting
citizenship to a child born abroad when one parent is a US citizen
is the statute that was in effect at the time of the child’s
birth.” Chau v. Immigration and Naturalization Service, 247 F. 3d
1026, 1029 (9th Cir. 2000). We do not look at the current law.

Even though former Section 321(a) was repealed by the CCA, it is


still relevant for those who derived US citizenship under its
terms. It provided in pertinent part that a child born outside the
USA of alien parents became a US citizen upon fulfillment of the
following conditions:

Naturalization of both parents; or


Naturalization of surviving parent if one parent died; or
Naturalization of the parent who had legal custody of child in
event of legal separation of the parents or the naturalization
of the mother if the child was born out of wedlock and the
paternity of the child has not been established by
legitimation; and if
Such naturalization took place while such child is unmarried
and under age 18; and
Such child is residing in the US as a lawful permanent
resident.

The law applies which existed at the time the last requirement for
derivative citizenship was satisfied. Ashton v. Gonzales, 431 F. 3d
95, 97 (2d Cir 2005). However, the Third Circuit, in an
unpublished opinion, ruled that an inexplicable delay by the INS in
adjudicating a parent’s naturalization applicable cannot negate the
child’s claim for derivative citizenship. Calix-Chavarria v. AG of
the United States, 182 Fed. Appx. 72, 76 (3d Cir. 2006).
A child who satisfied all the conditions of former INA 321(a)
before age 18 years acquired citizenship even if the naturalized
parent acquired legal custody of the child after naturalization.

13
Matter of Baries-Larios, 24 I & N Dec. 467 (BIA March 10, 2008).

III: Dual Citizenship

One often hears that the US does not allow or tolerate dual
nationality. Not exactly. A routine oath of allegiance taken in the
context of naturalization in a foreign state will not cause loss of
US citizenship absent aggravating circumstances. A routine oath of
allegiance is one that does not contain language requiring
renunciation of loyalty to the USA. In fact, since 1990, the
State Department, when evaluating the consequences of a potentially
expatriating act, such as naturalization abroad as listed in INA
349, has adopted an administrative presumption, now codified in
regulation at 22 CFR 50.40(a), that such foreign citizenship was
acquired with the intent to retain US citizenship:

(a) Administrative presumption. In adjudicating potentially


expatriating acts pursuant to INA 349(a), the Department has
adopted an administrative presumption regarding certain acts
and the intent to commit them. U.S. citizens who naturalize in
a foreign country; take a routine oath of allegiance; or
accept non-policy level employment with a foreign government
need not submit evidence of intent to retain U.S. nationality.
In these three classes of cases, intent to retain U.S.
citizenship will be presumed.

It is true that someone who naturalizes and becomes an American


must renounce all former allegiance. Interestingly, the foreign
passport is not taken away at the final swearing in and, while
certainly inconsistent with the oath of allegiance to the USA, is
not listed as an expatriating act in Section 349 of the INA and
cannot consequently result in involuntary loss of US citizenship.
A child born in the USA to parents who are not US citizens may well
have more than one nationality. Likewise, a child born in a foreign
country to US citizen parents may be both a US citizen and a
citizen of the country of birth. Similarly, a US citizen may
acquire foreign citizenship by marriage. In order to lose US
citizenship through the acquisition of a foreign allegiance, US law
requires that the person apply voluntarily for this foreign
citizenship and do so with the intention to give us US citizenship.
Vance v. Terrazas, 444 US 252 (1980); Afroyim v. Rusk, 387 US 253
(1968). Congress subsequently adopted the Terrazas principle in the
Immigration and Nationality Act Amendments of 1986, Pub.L. No. 99-
653, Section 18, 100 Stat. 3655, by specifying that acts of
expatriation listed in INA Section 349 would result in loss of
citizenship only if performed “with the intention of relinquishing
United States nationality.”
The Immigration and Technical Corrections Act of 1988, Pub. L. No.
100-25, Section 8®, 102 Stat. 2609, 2618 took the next logical step

14
by mandating that the 1986 Amendment “ shall apply to actions taken
before, on, or after November 14, 1986.” So, it is perhaps more
accurate and truthful to say that US law recognizes, but does not
encourage, dual nationality because of the problems it can cause.
Dual nationals owe allegiance to the USA and the foreign country
whose laws and interests may not always coincide and can conflict.

Even if one is a dual national, US law requires that this dual


national, like all US citizens, depart and enter the USA only on a
US passport, although there is no penalty for failing to do so.
Dual nationals may also be required by the foreign country to use
the foreign passport to enter and leave that country. Foreign
naturalization by an American citizen, especially when coupled with
an explicit renunciation of US citizenship as part of the oath, can
give rise to an inference that the foreign citizenship was acquired
with the intent to no longer remain a US citizen. However, this is
a rebuttable presumption and can be overcome with proof that the
person did not intend to abandon US citizenship.

Short but instructive advice concerning dual nationality and


retention or loss of US citizenship can be found at
http://travel.state.gov/law/citizenship/citizenship_778.hmtl
Someone who has lost US citizenship and wants to have their case
considered in light of the premise that they became a foreign
citizen with the intent to keep their US citizenship may request
such review by submitting a request to the US Citizens Services
Section of the closest US Consulate or by writing directly to :

Express Mail:

Director
Office of Policy Review and Inter-Agency Liaison
Overseas Citizens Services
Bureau of Consular Affairs
US Department of State
4th floor
2100 Pennsylvania Ave, NW
Washington DC 20037
Phone: 202-736-9110
Fax 202-736-9111
Email: ASKPRI@state.gov

Regular Mail:

Director
Office of Policy Review and Inter-Agency Liasion
Overseas Citizens Services
Bureau of Consular Affairs
US Department of State
SA-29, 4th floor

15
Washington, DC 20520

IV.

LITIGATION ISSUES AND STRATEGIES

A. Challenging the Wrongful Denial

While § 310(a) of the INA gives exclusive naturalization


authority to the Attorney General, § 310(c) provides for judicial
review for a person whose application for naturalization is denied.
Note, however, that before a person can head to federal district
court under § 310(c), he or she must first have exhausted available
administrative remedies by requesting review, pursuant to INA §
336(a), within 30 days of the decision denying the naturalization
application. 8 C.F.R. § 336.9(d). That request for a hearing is
made on Form N–336 and requires a filing fee (at this time) of
$605.00. See 8 C.F.R. § 336.2. The USCIS allows itself up to 180
days to schedule a review hearing on the administrative appeal. 8
C.F.R. § 336.2(b). Only after that administrative process is
completed, or the 180 days have run, may a naturalization applicant
seek review in federal district court.

The beauty of judicial review under § 310(c) of the INA is


that it can be de novo, i.e., the USCIS's previous decision is
entitled to no weight, respect or deference, and the petitioner
gets full de novo review by way of a hearing in court on the
application itself. A sample complaint under § 310(c) is attached
to these materials as Appendix 2. The regulations state that such
an action must be brought within 120 days of the USCIS's final
determination, 8 C.F.R. § 336.9(b), and further instruct that it
shall be brought against the USCIS. I am not sure where the USCIS
gets off telling us how long we have to sue when Congress did not
do so. The Tenth Circuit certainly thinks that the USCIS can do no
such thing, see Nagahi v. Immigration and Naturalization Service,
219 F.3d 1156 (10th Cir. 2000) (120 day requirement unlawful;
plaintiff has six years to bring § 310(c) action). Nagahi is the
sole case on point, and in my limited experience the USCIS now
accepts it as the law.

Of course, the fact that you are finally able to drag the
government into federal district court on a level playing field to
determine, de novo, whether your client is entitled to
naturalization, does not mean that you are automatically going to
win. You have to prove your case, and you cannot expect the other
side to always lie down. However, a federal district court might
have a very different opinion as to, for example, your client's
good moral character or his knowledge of English and civics than
the opinion of the USCIS examiner that came earlier, especially
when you have time to prepare for your hearing and are able to
marshal your witnesses and evidence beforehand. Appendix 3 is the

16
court’s order after the de novo hearing requested in Appendix 2.

B. The Statutory Delay Case


The INA also provides another route to federal district court
to jump-start a naturalization case that is sitting in limbo. When
the USCIS fails to make a decision as to an applicant's eligibility
for naturalization within 120 days of the initial examination under
INA § 335, the applicant may bring an action in federal district
court, and the court may hear the matter or remand the matter with
instructions. INA § 336(b). While there is no exhaustion of
remedies requirement attached to this particular avenue for
judicial review, good sense might counsel against using it unless
something about the USCIS's underlying conduct is particularly
egregious, or the delay is just too long. Otherwise the federal
district court might reasonably conclude that the problem is simply
an overworked agency trying to deal with complicated legal matters
in an orderly fashion, and give no more relief than sending the
case back to the USCIS with vague instructions to continue
processing it.

Attached hereto as Appendix 4 is a complaint in a typical


statutory delay case. USCIS began to get bombarded with lawsuits
like this one starting in 2005, when the national security checks
generated by 9/11 began to cause outrageous delays in
naturalization cases all over the place. For quite a while
Immigration would simply not contest these lawsuits and complete
the naturalization case rather than fighting in court. However, in
early 2007 USCIS got tired of rolling over, and began to actively
defend these lawsuits with motions to dismiss based on all sorts of
jurisdictional and other arguments. Until September of 2007 the
district court decisions were about equally divided among
dismissing the lawsuits, remanding the cases to USCIS with no
instructions about how long they could take, and remanding the
cases to USCIS with time-limiting instructions about how long the
Government had to complete the processing of the N-400's.

Then Imran Mirza, our colleague in Houston, swept in and saved


the day with Walji v. Gonzales, 500 F.3d 432 (5th Cir. 2007). In
that case the Fifth Circuit rejected the procedural and
jurisdictional arguments the Government was using to fight the
statutory delay cases, leaving the field clear for us to litigate
them on the merits. Thanks, Imran.

The key to these statutory delay cases (often called “1447(b)


cases” based on the codified version of § 336(b) in Title 8 of the
United States Code) is to get the federal district court to either
hear the case (which they almost never want to do), or to remand
the case to USCIS with specific instructions about how long the
Government has to complete its work on the N–400. You can find
through your computerized legal research literally dozens of recent
cases in which the federal district courts have done exactly the

17
latter, and use them in your argument that your court should do
likewise. Since Walji, the federal district courts have become
increasingly unreceptive to USCIS’s argument that naturalization
cases can properly be delayed because of “security checks” or “name
checks,” and seem almost anxious to punish the Government for even
daring to advance these arguments. See Mocanu v. Mueller, 07-0445
(E. D. Pa. 02/08/2008) (questioning whether USCIS can even use the
FBI name check program), Ghanim v. Gonzales, C07-0594 (W. D. Wash.
09/14/2007) (court gives USCIS four days to naturalize plaintiff or
the court will do so itself).

A nice, new development in § 1447(b) cases is that the courts


are showing themselves increasingly willing to award attorneys fees
against the government under the Equal Acts to Justice Act, even if
the only relief the plaintiff gets is an order remanding the case
to Immigration with instructions that it be completed within a
defined period of time. See, e.g., Aronov v. Chertoff, 536 F.3d 30
(1st Cir. 2008), Ghanim v. Mukasey, 545 F. Supp.2d 1146, 1150 (W.D.
Wash. 2008), Aboushaban v. Mueller, 475 F. Supp.2d 943, 946 (N.D.
Cal. 2007). There are many other unreported decisions to the same
effect that you can find on the Net.

C. The Plain Old (Pre-Interview) Delay Case

Prior to the 1990 amendments to the INA, immigration lawyers


had a lovely weapon at our disposal to deal with the situation in
which the INS would simply sit on an N–400 without doing anything.
We could file the infamous Motion to Calendar and shortly get a
federal judge to rule on whether our client was qualified to become
a U.S. citizen. While most of the judges would bark when we used
this device to simply jump ahead of the line, it was tremendously
effective when a particular N–400 would fall into a bureaucratic
black hole. In fact, a number of federal district judges in
Houston got so tired of entertaining these motions that after a
group of aggressive immigration lawyers brought an action to compel
INS to act on N-400s in a timely fashion, the Southern District of
Texas issued an order requiring the INS to adhere to a schedule
(issued by the Court) in bringing naturalization cases before the
Court.

After the changes to the naturalization procedures created by


IMMACT 90, those remedies are no longer available to us. However,
Congress has not yet repealed 5 U.S.C. § 702, which allows a person
suffering legal wrong because of agency action to seek judicial
review thereof, nor 5 U.S.C. § 706, which states that the reviewing
court should "compel agency action unlawfully withheld or
unreasonably delayed." In other words, there remains a statutory
basis for bringing a claim against the USCIS for unreasonably
delaying action on a naturalization application.

Once again, I would counsel against bringing such a claim just


to try to jump your man to the front of a long line of

18
naturalization applicants trying to work themselves through an
agency that has often been slow even when it is not swamped.
Specifically, for the APA delay lawsuit to be successful you will
probably need to show that the interview on your N–400 has been
delayed much longer than others, or something that makes your
client special--very advanced age, debilitating disease or some
other compelling reason your client deserves her naturalization
application to be acted on right away. (For example, Texas needs
teachers, but state law will not allow an LPR to teach in the
public schools for more than five years without becoming a
citizen.) If you can set that kind of special factor against a
backdrop of the USCIS operating an admittedly self-funding
mechanism so pathetically that it takes way too long for a person
to become a citizen, you are going to look good; in the absence of
such factors, you are more likely to get tossed out of court by the
body of law to the effect that to determine whether an action has
been "unreasonably delayed" within the meaning of 5 U.S.C. §
706(1)(c), the court should look at 1) the length of delay; 2) the
reasonableness of delay in the context of the statute authorizing
the agency's action; 3) the consequences of the agency's delay; and
4) "any plea of administrative error, administrative inconvenience,
practical difficulty in carrying out a legislative mandate, or need
to prioritize in the face of limited resources." See Raymond
Profit Foundation v. United States Environmental Protection Agency,
930 F. Supp. 1088, 1102 (E.D. Penn. 1986), quoted in In Re
International Chemical Workers Union, 958 F.2d 1144 (D.C. Cir.
1992).

D. DISPUTED CITIZENSHIP

The disputed citizenship case arises when your client claims


to have been born in the U.S. and the Government does not believe
it. Due largely to the Western Hemisphere Travel Initiative and
the increasing requirements that U.S. citizens have U.S. passports
to travel, more and more of these cases are popping up. The bad
ones are when your client’s family members are at a visa
appointment, and the fraud prevention unit of the consular post
decides that it does not believe the birth certificate, and
everything stops until they are convinced. The less bad ones are
when your client files a petition for a family member, or applies
for a U.S. passport, and the Government asks for additional proof
of your client’s birth in the U.S.

The facts underlying 95% of these cases (at least in Texas) go


roughly as follows: your client claims to have been born in the
U.S. while her mother was here on a brief visit or in undocumented
status. Your client has a birth certificate showing that she was
born at home or with a midwife. Your client explains that she was
taken back to Mexico while a baby, and did not return to the U.S.
until later on. Often, but not always, your client will also have
a Mexican birth registration, hopefully post-dating the U.S. birth

19
certificate.

The first thing you do when such a client comes in the door is
interrogate the client and the parent or parents about where the
client really was born. If the answer is that the client was born
elsewhere and the birth certificate is a fake, say goodbye.
Otherwise, you are probably going to really have to earn your fee.
What you usually have in your hands is similar to a derivative
citizenship case (see above); you are trying to prove the fact of
your client’s birth here in the absence of much hard evidence,
beyond the questioned birth certificate, to show that.

I believe the best approach to these cases is for the client


to apply for a U.S. passport, which is the second-best (more on
that later) proof of U.S. citizenship one can have. You do that
only after marshaling all your evidence, and deciding whether you
are going to be able to prove by a preponderance of the evidence
that your client was in fact born here. When the Department of
State denies, or unreasonably delays, the passport application, you
file suit for declaratory relief in federal district court under §
360 of the INA. Appendix 5 hereto is a complaint in such a case,
and Appendix 6 is the plaintiff’s motion for summary judgment in
the same case.

A portion of the oral remarks will be dedicated to tactical


considerations in these lawsuits.

20
Write your USCIS ''A''- number here:
Part 5. Information for criminal records search.
A
NOTE: The categories below are those required by the FBI. See Instructions for more information.
A. Gender B. Height C. Weight

Male Female Feet Inches Pounds

D. Are you Hispanic or Latino? Yes No


E. Race (Select one or more.)

White Asian Black or African American Indian or Alaskan Native Native Hawaiian or
American Other Pacific Islander
F. Hair color
Black Brown Blonde Gray White Red Sandy Bald (No Hair)

G. Eye color
Brown Blue Green Hazel Gray Black Pink Maroon Other

Part 6. Information about your residence and employment.


A. Where have you lived during the last five years? Begin with where you live now and then list every place you lived for the last five
years. If you need more space, use a separate sheet(s) of paper.

Dates (mm/dd/yyyy)
Street Number and Name, Apartment Number, City, State, Zip Code and Country
From To
Current Home Address - Same as Part 4.A Present

B. Where have you worked (or, if you were a student, what schools did you attend) during the last five years? Include military service.
Begin with your current or latest employer and then list every place you have worked or studied for the last five years. If you need
more space, use a separate sheet of paper.

Employer or Employer or School Address Dates (mm/dd/yyyy) Your


School Name (Street, City and State) From To Occupation

Form N-400 (Rev. 10/15/07) Y Page 3


Write your USCIS ''A"- number here:
Part 7. Time outside the United States.
A
(Including Trips to Canada, Mexico and the Caribbean Islands)

A. How many total days did you spend outside of the United States during the past five years? days

B. How many trips of 24 hours or more have you taken outside of the United States during the past five years? trips
C. List below all the trips of 24 hours or more that you have taken outside of the United States since becoming a Lawful
Permanent Resident. Begin with your most recent trip. If you need more space, use a separate sheet(s) of paper.

Date You Left the Date You Returned to Did Trip Last Total Days
United States the United States Six Months or Out of the
(mm/dd/yyyy) (mm/dd/yyyy) More? Countries to Which You Traveled United States

Yes No

Yes No

Yes No

Yes No

Yes No

Yes No

Yes No

Yes No

Yes No

Yes No

Part 8. Information about your marital history.

A. How many times have you been married (including annulled marriages)? If you have never been married, go to Part 9.

B. If you are now married, give the following information about your spouse:

1. Spouse's Family Name (Last Name) Given Name (First Name) Full Middle Name (If applicable)

2. Date of Birth (mm/dd/yyyy) 3. Date of Marriage (mm/dd/yyyy) 4. Spouse's U.S. Social Security #

5. Home Address - Street Number and Name Apartment Number

City State Zip Code

Form N-400 (Rev. 10/15/07) Y Page 4


Write your USCIS ''A"- number here:
Part 8. Information about your marital history. (Continued.)
A
C. Is your spouse a U.S. citizen? Yes No

D. If your spouse is a U.S. citizen, give the following information:

1. When did your spouse become a U.S. citizen? At Birth Other

If ''Other,'' give the following information:

2. Date your spouse became a U.S. citizen 3. Place your spouse became a U.S. citizen (Please see Instructions.)

City and State

E. If your spouse is not a U.S. citizen, give the following information :

1. Spouse's Country of Citizenship 2. Spouse's USCIS ''A''- Number (If applicable)


A

3. Spouse's Immigration Status


Lawful Permanent Resident Other

F. If you were married before, provide the following information about your prior spouse. If you have more than one previous
marriage, use a separate sheet(s) of paper to provide the information requested in Questions 1-5 below.

1. Prior Spouse's Family Name (Last Name) Given Name (First Name) Full Middle Name (If applicable)

2. Prior Spouse's Immigration Status 3. Date of Marriage (mm/dd/yyyy) 4. Date Marriage Ended (mm/dd/yyyy)

U.S. Citizen
Lawful Permanent Resident 5. How Marriage Ended
Other Divorce Spouse Died Other

G. How many times has your current spouse been married (including annulled marriages)?
If your spouse has ever been married before, give the following information about your spouse's prior marriage.
If your spouse has more than one previous marriage, use a separate sheet(s) of paper to provide the information requested in
Questions 1 - 5 below.

1. Prior Spouse's Family Name (Last Name) Given Name (First Name) Full Middle Name (If applicable)

2. Prior Spouse's Immigration Status 3. Date of Marriage (mm/dd/yyyy) 4. Date Marriage Ended (mm/dd/yyyy)

U.S. Citizen
Lawful Permanent Resident 5. How Marriage Ended
Other
Divorce Spouse Died Other

Form N-400 (Rev. 10/15/07) Y Page 5


Part 9. Information about your children. Write your USCIS ''A"- number here:
A

A. How many sons and daughters have you had? For more information on which sons and
daughters you should include and how to complete this section, see the Instructions.
B. Provide the following information about all of your sons and daughters. If you need more space, use a separate sheet(s) of paper.

Full Name of Date of Birth USCIS ''A''- number Current Address


Country of Birth
Son or Daughter (mm/dd/yyyy) (if child has one) (Street, City, State and Country)

Add Children Go to continuation page

Part 10. Additional questions.

Please answer Questions 1 through 14. If you answer ''Yes'' to any of these questions, include a written explanation with this form. Your
written explanation should (1) explain why your answer was ''Yes'' and (2) provide any additional information that helps to explain your
answer.

A. General Questions.
1. Have you ever claimed to be a U.S. citizen (in writing or any other way)? Yes No
2. Have you ever registered to vote in any Federal, state or local election in the United States? Yes No
3. Have you ever voted in any Federal, state or local election in the United States? Yes No
4. Since becoming a Lawful Permanent Resident, have you ever failed to file a required Federal
state or local tax return? Yes No

5. Do you owe any Federal, state or local taxes that are overdue? Yes No
6. Do you have any title of nobility in any foreign country? Yes No

7. Have you ever been declared legally incompetent or been confined to a mental institution
within the last five years? Yes No

Form N-400 (Rev. 10/15/07) Y Page 6


Part 10. Additional questions. (Continued.) Write your USCIS ''A"- number here:
A

B. Affiliations.
8. a Have you ever been a member of or associated with any organization, association, fund Yes No
foundation, party, club, society or similar group in the United States or in any other place?

b. If you answered ''Yes,'' list the name of each group below. If you need more space, attach the names of the other group(s) on a
separate sheet(s) of paper.

Name of Group Name of Group

1. 6.

2. 7.

3. 8.

4. 9.

5. 10.

9. Have you ever been a member of or in any way associated (either directly or indirectly) with:

a. The Communist Party? Yes No


b. Any other totalitarian party? Yes No
c. A terrorist organization? Yes No

10. Have you ever advocated (either directly or indirectly) the overthrow of any government
by force or violence? Yes No

11. Have you ever persecuted (either directly or indirectly) any person because of race,
religion, national origin, membership in a particular social group or political opinion? Yes No

12. Between March 23, 1933 and May 8, 1945, did you work for or associate in any way (either
directly or indirectly) with:

a. The Nazi government of Germany? Yes No


b. Any government in any area (1) occupied by, (2) allied with, or (3) established with the
help of the Nazi government of Germany? Yes No

c. Any German, Nazi, or S.S. military unit, paramilitary unit, self-defense unit, vigilante unit,
citizen unit, police unit, government agency or office, extermination camp, concentration
camp, prisoner of war camp, prison, labor camp or transit camp? Yes No
C. Continuous Residence.
Since becoming a Lawful Permanent Resident of the United States:

13. Have you ever called yourself a ''nonresident'' on a Federal, state or local tax return? Yes No
14. Have you ever failed to file a Federal, state or local tax return because you considered
yourself to be a "nonresident"? Yes No

Form N-400 (Rev. 10/15/07) Y Page 7


Write your USCIS ''A"- number here:
Part 10. Additional questions. (Continued.)
A

D. Good Moral Character.

For the purposes of this application, you must answer ''Yes'' to the following questions, if applicable, even if your records were
sealed or otherwise cleared or if anyone, including a judge, law enforcement officer or attorney, told you that you no longer have a
record.

15. Have you ever committed a crime or offense for which you were not arrested? Yes No

16. Have you ever been arrested, cited or detained by any law enforcement officer
(including USCIS or former INS and military officers) for any reason? Yes No

17. Have you ever been charged with committing any crime or offense? Yes No

18. Have you ever been convicted of a crime or offense? Yes No

19. Have you ever been placed in an alternative sentencing or a rehabilitative program
(for example: diversion, deferred prosecution, withheld adjudication, deferred adjudication)? Yes No

20. Have you ever received a suspended sentence, been placed on probation or been paroled? Yes No
21. Have you ever been in jail or prison? Yes No

If you answered "Yes" to any of Questions 15 through 21, complete the following table. If you need more space, use a separate sheet
(s) of paper to give the same information.

Why were you arrested, cited, Date arrested, cited, Where were you arrested, Outcome or disposition of the
detained or charged? detained or charged? cited, detained or charged? arrest, citation, detention or charge
(mm/dd/yyyy) (City, State, Country) (No charges filed, charges
dismissed, jail, probation, etc.)

Answer Questions 22 through 33. If you answer "Yes" to any of these questions, attach (1) your written explanation why your answer
was ''Yes'' and (2) any additional information or documentation that helps explain your answer.

22. Have you ever:


a. Been a habitual drunkard? Yes No
b. Been a prostitute, or procured anyone for prostitution? Yes No
c. Sold or smuggled controlled substances, illegal drugs or narcotics? Yes No
d. Been married to more than one person at the same time? Yes No
e. Helped anyone enter or try to enter the United States illegally? Yes No
f. Gambled illegally or received income from illegal gambling? Yes No
g. Failed to support your dependents or to pay alimony? Yes No

23. Have you ever given false or misleading information to any U.S. government official
while applying for any immigration benefit or to prevent deportation, exclusion or removal? Yes No
24. Have you ever lied to any U.S. government official to gain entry or admission into the
United States? Yes No

Form N-400 (Rev. 10/15/07) Y Page 8


Write your USCIS ''A"- number here:
Part 10. Additional questions. (Continued.)
A

E. Removal, Exclusion and Deportation Proceedings.

25. Are removal, exclusion, rescission or deportation proceedings pending against you? Yes No

26. Have you ever been removed, excluded or deported from the United States? Yes No

27. Have you ever been ordered to be removed, excluded or deported from the United States? Yes No

28. Have you ever applied for any kind of relief from removal, exclusion or deportation? Yes No

F. Military Service.

29. Have you ever served in the U.S. Armed Forces? Yes No

30. Have you ever left the United States to avoid being drafted into the U.S. Armed Forces? Yes No

31. Have you ever applied for any kind of exemption from military service in the U.S. Armed Forces? Yes No

32. Have you ever deserted from the U.S. Armed Forces? Yes No

G. Selective Service Registration.

33. Are you a male who lived in the United States at any time between your 18th and 26th birthdays Yes No
in any status except as a lawful nonimmigrant?
If you answered "NO," go on to question 34.

If you answered "YES," provide the information below.

If you answered "YES," but you did not register with the Selective Service System and are still under 26 years of age, you
must register before you apply for naturalization, so that you can complete the information below:

Date Registered (mm/dd/yyyy) Selective Service Number

If you answered "YES," but you did not register with the Selective Service and you are now 26 years old or older, attach a
statement explaining why you did not register.

H. Oath Requirements. (See Part 14 for the Text of the Oath.)


Answer Questions 34 through 39. If you answer ''No'' to any of these questions, attach (1) your written explanation why the
answer was ''No'' and (2) any additional information or documentation that helps to explain your answer.

34. Do you support the Constitution and form of government of the United States? Yes No

35. Do you understand the full Oath of Allegiance to the United States? Yes No

36. Are you willing to take the full Oath of Allegiance to the United States? Yes No

37. If the law requires it, are you willing to bear arms on behalf of the United States? Yes No

38. If the law requires it, are you willing to perform noncombatant services in the U.S. Armed Forces? Yes No

39. If the law requires it, are you willing to perform work of national importance under civilian Yes No
direction?
Form N-400 (Rev. 10/15/07) Y Page 9
Case 6:07-cv-00304-MHS Document 1 Filed 07/02/2007 Page 1 of 8
Case 6:07-cv-00304-MHS Document 1 Filed 07/02/2007 Page 2 of 8
Case 6:07-cv-00304-MHS Document 1 Filed 07/02/2007 Page 3 of 8
Case 6:07-cv-00304-MHS Document 1 Filed 07/02/2007 Page 4 of 8
Case 6:07-cv-00304-MHS Document 1 Filed 07/02/2007 Page 5 of 8
Case 6:07-cv-00304-MHS Document 1 Filed 07/02/2007 Page 6 of 8
Case 6:07-cv-00304-MHS Document 1 Filed 07/02/2007 Page 7 of 8
Case 6:07-cv-00304-MHS Document 1 Filed 07/02/2007 Page 8 of 8
Case 6:07-cv-00304-MHS Document 10 Filed 06/04/2008 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT


FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION

FLORENTINO BORUNDA §
§
v. §
§
ANGELA K. BARROWS, in her official § CASE NO. 6:07-CV-304
capacity as District Director of the Dallas §
District Office of the USCIS, and the U.S. §
CITIZENSHIP AND IMMIGRATION §
SERVICES §

FINAL JUDGMENT

On June 2, 2008, the Court held a hearing on the above entitled action. At that time, the

Court found that the Plaintiff, Florentino Borunda, demonstrated an understanding of the English

language, including an ability to read, write, and speak words in ordinary usage in the English

language as defined by 8 U.S.C.A. § 1423(a)(1). The Court remanded this matter to the Immigration

and Naturalization Service for the completion of any other requirements necessary for a certificate

of naturalization in accordance with the Court’s finding. The Court also ordered that all other

requirements be completed within 90 days. As no further action by the Court is required in this

case, it is hereby ORDERED, ADJUDGED, and DECREED that final judgment be entered in this

case.

All relief not previously granted is hereby DENIED.

It is SO ORDERED.
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION

HILARIO MEDINA, §
§
Plaintiff §
§
V. § CIVIL ACTION NO. ____________
§
MICHAEL CHERTOFF, in his §
official capacity as Secretary §
of the Department of Homeland § JUDGE: _______________________
Security, §
§
Defendant §

COMPLAINT

Preliminary Statement

1. In January of 2007 the Plaintiff, Hilario Medina

(hereinafter “Mr. Medina” or “Plaintiff,”) a lawful permanent

resident of the United States, applied to become a naturalized U.S.

citizen. The U.S. Citizenship and Immigration Services

(hereinafter “USCIS”) interviewed him on that application on July

11, 2007. The law provides that if the USCIS has not made a

decision on a naturalization application within 120 days of the

interview, the applicant can petition the federal district court

where he lives for a hearing on his application. The USCIS has not

made a decision of Plaintiff’s application within much more than

120 days.

2. Plaintiff therefore brings this action requesting that

this Court hear his application for naturalization, and after such

hearing make a declaration that he is entitled to be naturalized,

issue an order admitting him to citizenship, and grant him his

attorney's fees and costs as provided by law.

Jurisdiction and Venue


3. This Court has jurisdiction of this action under 8 U.S.C.

§ 1447(b) as an application for a hearing on an unduly delayed

application for naturalization.

4. Venue is proper in the Eastern District of Texas under 28

U.S.C. § 1391(e) and under 8 U.S.C. § 1447(b), as the plaintiff

resides in this District.

5. An actual controversy has arisen and now exists between

Plaintiff and Defendant.

PARTIES

6. Plaintiff is an adult citizen of Mexico and a resident of

Tyler, Smith County, Texas.

7. Defendant Michael Chertoff is the Secretary of the U.S.

Department of Homeland Security, and as such is charged by statute

with the administration and enforcement of the Immigration and

Nationality Act and all other laws relating to the immigration and

naturalization of aliens. He is sued in his official capacity

only.

Facts

8. Plaintiff Hilario Medina was born in 1956 in Mexico, and

immigrated to the United States as a lawful permanent resident on

August 10, 1981, based on his marriage to his wife, Pam Medina, a

U.S. citizen.

9. Plaintiff is able to demonstrate an understanding of the

English language, including an ability to read, write and speak

words in ordinary English usage in the English language.

10. Plaintiff is able to demonstrate a knowledge and

understanding of the fundamentals of the history, and of the

2
principles and form of government, of the United States.

11. Plaintiff is not and has never been opposed to government

or law, nor has he favored totalitarian forms of government, nor

has he been connected in any meaningful manner with any

organization, including but not limited to any communist

organization, that does so.

12. Plaintiff is not a deserter from the armed forces of the

United States and has never been relieved from training and service

in the U.S. armed forces because of alienage.

13. On or about January 24, 2007, Plaintiff applied to become

a naturalized citizen of the United States.

14. Immediately preceding the date of filing his application

for naturalization as set forth above, Plaintiff had resided

continuously within the United States for at least three years, and

during the three years immediately preceding that date, he had been

physically present in the United States for a period totaling at

least half of that three-year time.

15. Plaintiff has resided within the State of Texas for at

least three months as of the time of filing of this lawsuit.

16. Plaintiff has resided continuously within the United

States from the date he submitted his application for

naturalization, and continues to do so.

17. During all the periods of time referred to in ¶¶ 14

through 16 above and continuing to the present, Plaintiff has been

a person of good moral character, attached to the principles of the

Constitution of the United States, and well disposed to the good

order and happiness of the United States.

3
18. With his Application for Naturalization, Plaintiff

submitted to the USCIS Texas Service Center in Dallas, Texas a

$330.00 filing fee plus a $70.00 fingerprinting fee.

19. Some time after submitting his Application for

Naturalization on or about January 24, 2007, Plaintiff received

from the USCIS a notice that he was scheduled to be fingerprinted

in Dallas, Texas for the purposes of his Application for

Naturalization. He went to that appointment and was fingerprinted.

20. On or about June 25, 2007 Plaintiff received a notice

from the USCIS advising him to appear for an interview on his

Application for Naturalization on July 11, 2007, at the USCIS

Dallas District Office.

21. Plaintiff went to the interview of July 11, 2007 and at

such interview demonstrated that he was qualified for citizenship,

and passed the tests of his knowledge of the government and history

of the United States and of his ability to read, write and speak

English.

22. From July 11, 2007 to the time of filing of this lawsuit,

Plaintiff’s application has remained pending with the USCIS.

23 Defendant has failed to make a determination under 8

U.S.C. § 1446 as to Plaintiff’s eligibility for naturalization for

more than 120 days after the date the USCIS conducted its

examination under that section, and Plaintiff is therefore entitled

under 8 U.S.C. § 1447(b) to ask this Court to hear his application.

24 Therefore, Plaintiff requests that this Court grant

Plaintiff a hearing on his application in accordance with 8 U.S.C.

§ 1447(b). While under the cited statute this Court has the option

4
to remand this matter to the USCIS, Plaintiff respectfully requests

that the Court hear the matter itself, instead of sending

Plaintiff’s application for naturalization back to the USCIS and an

unknown future.

25 At the time of filing of this action, Plaintiff is an

individual with net worth not exceeding Two Million and No/100

Dollars ($2,000,000.00).

26 Defendant's treatment of Plaintiff and Plaintiff's

application for naturalization in the manner described above has no

reasonable basis in fact or law, and is not substantially

justified.

CAUSE OF ACTION

27 By failing to timely process and complete Plaintiff’s

Application for Naturalization, Defendant has adversely affected

and aggrieved Plaintiff, for which relief is provided under 8

U.S.C. § 1447(b).

PRAYER FOR RELIEF

Wherefore Plaintiff prays this Honorable Court do the

following:

a) schedule a hearing on Plaintiff's application for

naturalization;

b) following said hearing, enter findings of facts and

conclusions of law that Plaintiff is qualified for

naturalization and enter an order admitting Plaintiff to

citizenship;

c) order Defendant to issue Plaintiff a Certificate of

Naturalization at the next available opportunity, but in

5
no event later than 30 days after this Court's final

order disposing of this matter;

d) grant Plaintiff a reasonable attorney's fee and his costs

and expenses herein pursuant to 28 U.S.C. § 2412; and

e) grant Plaintiff any and all additional relief to which he

may appear to be entitled.

Respectfully submitted,

RICHARD S. FISCHER
State Bar No. 07043100

THE LAW OFFICES OF RICHARD S. FISCHER


114 South Pecan Street
Nacogdoches, Texas 75961
Phone: (936)564-2222
FAX: (936) 564-1346
E-mail: fischerlaw@sbcglobal.net

Attorney for Plaintiff

6
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

JAVIER ESCALANTE, §
§
Plaintiff §
§
V. § CIVIL ACTION NO. _____________
§
CONDOLEEZZA RICE, in her §
official capacity as Secretary §
of State of the United States, § JUDGE: _______________________
§
§
Defendant §
COMPLAINT

COMES NOW Javier Escalante, hereinafter “Plaintiff,”

complaining of Condoleezza Rice, in her official capacity as

Secretary of State of the United States, hereinafter “Defendant,”

and for his complaint states as follows:

I.

PRELIMINARY STATEMENT

1. Plaintiff, a native-born citizen of the United States,

applied to Defendant for a United States passport. Defendant

denied that application on the ground that she was not satisfied

with Plaintiff’s proof that Plaintiff was a citizen of the United

States. Plaintiff brings this action seeking a declaratory

judgment that he is a citizen of the United States. Plaintiff

also seeks to recover his attorney’s fees and costs.

II.

JURISDICTION AND VENUE


2. This Court has jurisdiction over this case under 8

U.S.C. § 1503(a) and 28 U.S.C. §§ 2201 and 2202, as Plaintiff

brings this action seeking a declaratory judgment that he is a


citizen of the United States. Venue is proper in this District

under 8 U.S.C. § 1503(a) and 28 U.S.C. § 1391(e).

3. An actual controversy has arisen and now exists between

Plaintiff and Defendant.

PARTIES

4. Plaintiff Javier Escalante, is a 41-year-old citizen of

the United States and resident of Lufkin, Angelina County, Texas.

5. Defendant Condoleezza Rice is the Secretary of State of

the United States, and as such is charged by statute with

adjudicating applications for United States passports. She is

sued in her official capacity only.

FACTS
6. Plaintiff Javier Escalante was born on August 16, 1966

in Eagle Pass, Maverick County, Texas.

7. By virtue of being born in the United States, Plaintiff

was born a U.S. citizen.

8. Plaintiff has done nothing to renounce or otherwise lose

his U.S. citizenship from the time of his birth until now.

9. In December of 2005 Plaintiff applied for a U.S.

passport by submission of an “Application for a US Passport” to

the United States Department of State, the agency Defendant

heads.

10. On January 29, 2007, the United States Department of

State denied Plaintiff’s application for a U.S. passport on the

ground that he had not proved that he was a citizen of the United

States.

2
11. The denial of Plaintiff’s application for a U.S.

passport has harmed Plaintiff and continues to harm Plaintiff in

that he cannot safely travel abroad and return to the U.S.

12. Plaintiff has exhausted his administrative remedies.

13. Denial of Plaintiff’s application for a U.S. passport

was arbitrary, unreasonable, and unsupported by fact or law.

14. Plaintiff is an individual whose net worth does not

exceed the sum of $2,000,000.00 at the time of filing of this

lawsuit.

15. No special circumstances exist in this case such as to

make an award of attorney’s fees against Defendant unjust.

CAUSE OF ACTION
16. Plaintiff seeks a declaratory judgment from this Court,

pursuant to 8 U.S.C. § 1503(a), that he is a United States

citizen by birth.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays that this Honorable Court:

A. Set this case for a de novo hearing on Plaintiff’s

claim to U.S. citizenship;

B. Following said hearing, enter a declaratory judgment

declaring that Plaintiff is a citizen of the United States by

virtue of having been born in this country; and

C. Grant Plaintiff a reasonable attorney's fee under 28

U.S.C. § 2412 and his costs and expenses herein, together with

any and all additional relief to which Plaintiff may appear to be

entitled.

3
Respectfully submitted,

/s/
RICHARD S. FISCHER
State Bar No. 07043100

THE LAW OFFICES OF RICHARD S. FISCHER


114 South Pecan Street
Nacogdoches, Texas 75961
(936)564-2222
FAX: (936)564-1346
E-Mail: fischerlaw@sbcglobal.net

Attorney for Plaintiff

4
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

JAVIER ESCALANTE, §
§
Plaintiff §
§
V. § CIVIL ACTION NO. 9:08-CV-96
§
CONDOLEEZZA RICE, in her §
official capacity as Secretary §
of State of the United States, § JUDGE HEARTFIELD
§
§
Defendant §
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

COMES NOW Javier Escalante, hereinafter “Plaintiff,” by

counsel, and makes and submits this his Plaintiff’s Motion for

Summary Judgment, and would show as follows:

I.

Statement of the Issues to be Decided by the Court

1. Plaintiff alleges that he was born on August 16, 1966 in

Eagle Pass, Maverick County, Texas, and that by virtue of being

born in the United States he was born a U.S. citizen. Complaint,

¶¶ 6, 7. Defendant denies those allegations. Answer, ¶¶ 6, 7.

2. Plaintiff alleges that he has done nothing to renounce or

lose his U.S. citizenship. Complaint, ¶ 8. Defendant denies

that allegation for lack of sufficient information. Answer, ¶ 8.

II.

Statement of Undisputed Material Facts


3. Plaintiff applied for a U.S. passport in December of 2005,

and Defendant denied that application by letter dated January 29,

2007 on the ground that Plaintiff had not proved that he was a
citizen of the United States. Complaint, ¶¶ 9, 10; Answer, ¶¶ 9,

10.

III.

Summary Judgment Evidence

In support of this Motion, Plaintiff submits the following

numbered exhibits:

1. Plaintiff’s Certificate of Birth, showing that he was

born in Eagle Pass, Maverick County, Texas, on August

15, 1966.

2. Affidavit of Facts of Lucia Valenzuela, Plaintiff’s

mother in which she testifies that Plaintiff was born

in Eagle Pass, Texas on August 16, 1966, and how it

came to happen that he was born there at that time.

3. Affidavit of Facts of Ernesto Escalante, Plaintiff’s

father in which she testifies that Plaintiff was born

in Eagle Pass, Texas on August 16, 1966, and how it

came to happen that he was born there at that time.

4. Affidavit of Facts of Javier Escalante, Plaintiff, in

which he testifies that he has not committed any act

that could cause him to renounce or otherwise lose his

U.S. citizenship under § 349(a) of the Immigration and

Nationality Act, 8 U.S.C. § 1481(a).

IV.

Applicable Law, Argument and Authorities


“All persons born [] in the United States, and subject to

the jurisdiction thereof, are citizens of the United States . . .

2
.” U.S. Const. amend. XIV, § 1. For a person born in the

United States to lose his U.S. citizenship, he must commit one of

the acts set forth in § 349(a) of the Immigration and Nationality

Act, 8 U.S.C. § 1481(a). Plaintiff’s attached affidavit shows

that he has never committed any of those acts.

Summary judgment is proper if the moving party shows with

proper summary judgment evidence that there is no genuine issue

as to any material fact and that he is entitled to judgment as a

matter of law. United States of America v. Medical Doctor J.


Scott Smith, 513 F.3d 228, 230 (5th Cir. 2008). Once the moving

party has made such a showing, the non-moving party must present

proper summary judgment evidence showing that there is a genuine

issue of material fact for trial. Id. Plaintiff has presented

proper summary judgment evidence, all of which is attached

hereto, as to all disputed material facts in this case.

V.

Conclusion and Prayer

WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully

requests that this Motion be granted.

Respectfully submitted,

/S/ RICHARD S. FISCHER


RICHARD S. FISCHER
State Bar No. 07043100

THE LAW OFFICES OF RICHARD S. FISCHER


114 South Pecan Street
Nacogdoches, Texas 75961
Phone: (936)564-2222
FAX: (936)564-1346
E-mail: fischerlaw@sbcglobal.net

Attorney for Plaintiff

3
CERTIFICATE OF SERVICE

I hereby certify that this document was served

electronically, per this Court’s local rules, on this 4th day of

September, 2008.

/s/Richard S. Fischer
RICHARD S. FISCHER

4
TAB 05
Grounds of Removal
The University of Texas School of Law

Presented:
2008 Immigration Law Conference

October 23-24, 2008


San Antonio, Texas

Grounds of Deportability and Inadmissibility

Barbara Hines

Author contact information :


Barbara Hines
University of Texas School of Law
Immigration Clinic

bhines@law.utexas.edu
512-232-1310

Continuing Legal Education • 512-475-6700 • www.utcle.org


Grounds of Deportability and Inadmissibility
Barbara Hines
University of Texas School of Law
Immigration Clinic
October, 2008

I. Introduction

The purpose of this article is to provide a basic introduction to the grounds of


inadmissibility and deportability. These provisions are complex, numerous and require a much
more in-depth analysis than can be provided in this article. When determining if a client is
inadmissible or deportable, the practitioner must analyze the exact wording of the statute and
regulations and review the administrative and federal court decisions and the Department of
Homeland Security (DHS) written policies and memoranda. Do not presume that your client is
inadmissible or deportable just because the Immigration and Customs Enforcement (ICE) branch
of DHS1 alleges that he or she is. Review carefully the allegations of a Notice to Appear, the
document which initiates removal proceedings. Do not automatically concede inadmissibility or
deportability. Require ICE to meet its burden of proof in removal proceedings.

II. Basic Differences between Deportability and Inadmissibility

Non-citizens in the United States, including lawful permanent residents (green card
holders) are subject to the grounds of inadmissibility2 and deportability.3 Grounds of
inadmissibility apply to those seeking admission in any category to the U.S. at a Consulate
abroad, at the port of entry or when seeking permanent residence either at the Consulate or
through adjustment of status in the U.S. This means that they may be denied admission into the
United States or denied a visa or permanent residence based on the grounds of inadmissibility or
deported from the U.S. based on the grounds of deportability.

Whether the grounds of inadmissibility or deportability apply to the non-citizen depends


on his or her immigration status and other factors. The grounds of inadmissibility are generally
broader than the grounds of deportability. The non-citizen, classified as an arriving alien, must
establish admissibility by evidence that is “clear and beyond a doubt.”4 Others charged with
grounds of inadmissibility must show a lawful admission by clear and convincing evidence.5 On
the other hand, ICE must establish deportability by clear and convincing evidence.6 Thus the
determination of which statutory provisions apply is a crucial inquiry.

1
The Department of Homeland Security includes the Bureau of Immigration and Customs Enforcement, which
initiates and prosecutes removal cases.
2
8 U.S.C. §1182, INA §212.
3
8 U.S.C. §1227, INA §237.
4
8 U.S.C. §1229a(c)(2)(A), INA §240(c)(2)(A).
5
8 U.S.C. §1229a(c)(2)(B), INA §240(c)(2)(B).
6
8 U.S.C. §1229a(c)(3), INA §240(c)(3). Woodby v. INS, 385 U.S. 276 (1966).

1
Depending on the non-citizen’s status in the U.S., he or she will be charged under the
inadmissibility grounds or deportation grounds of the statute in a removal hearing.

Waivers exist for certain grounds of inadmissibility and deportability. This article does
not address these waivers in depth nor list all of them. Nevertheless, a practitioner should always
check to determine if a waiver applies in his or her client’s case.

III. Grounds of Inadmissibility

A. Applicability of Grounds of Inadmissibility

The grounds of inadmissibility apply to persons who are seeking to enter the U.S. at a
port of entry, i.e. at the border or at an international airport, or those seeking any type of visa to
enter the U.S. Inadmissibility also applies to persons who apply for permanent residence, either
at a U.S. Consulate abroad or at the DHS offices in the U.S.

In addition, the grounds of inadmissibility apply to a lawful permanent resident who


departs the country and seeks to reenter under certain circumstances.7 The general rule is that a
lawful permanent resident who re-enters the U.S. is not seeking “admission” and thus the rules of
inadmissibility do not apply. However, in certain circumstances, a lawful permanent resident is
considered to be seeking admission (arriving alien) and must establish admissibility. A
permanent resident who has abandoned his or her residence, has been out of the country for more
than 180 days, has engaged in illegal activity after departure, has departed while under removal
or extradition proceedings, has committed a criminal offense under the inadmissibility statute, or
attempts to enter without being inspected by an immigration officer, is classified as “seeking
admission.”8 Arriving aliens are not eligible for bond if detained at the border or port of entry but
instead must seek release on parole. When counseling a lawful permanent resident who falls
within any of the exceptions listed above, the attorney should determine whether the client
should leave the U.S. at all.

B. Health Related Grounds of Inadmissibility—8 U.S.C. §1182(a)(1) and


§1182(a)(10)(B)

All non-citizens who have communicable diseases as determined by the Secretary of


Health of Human Services9 and those who seek admission as a permanent resident who do not
have certain required vaccinations are inadmissible.10 Until recently, HIV was listed in the
statute as a medical ground of inadmissibility. In July, 2008, Congress passed H.R. 5501, the
United States Global Leadership Against HIV/AIDS, Tuberculosis and Malaria Reauthorization
Act which was also approved by the Senate and signed by the President. The new law restores

7
8 U.S.C. §1101(a)(13)(C), INA §1101(a)(13)(C).
8
8 U.S.C. §1101(a)(13)(C)(i)-(vi), INA §101(a)(13)(C)(i)-(vi).
9
8 U.S.C. §1182(a)(1)(A)(i), INA §212 (a)(1)(A)(i). In addition to HIV, infectious leprosy, lymphogruloma
vereum, syphilis and active TB are designated as communicable diseases.
10
8 U.S.C. §1182(a)(1)(A)(ii), INA §212 (a)(1)(A)(ii). See HIV/AIDS and Immigrants: A Manual for HIV/AIDS
Service Providers, http://www.nationalimmigrationproject.org/HIV/2004HIVManual/2004hivmanual/page7.html.

2
the authority of HHS to determine whether individuals with HIV should be allowed to enter the
U.S.

An applicant for permanent residence must present a medical examination, including an


HIV test, from one of the DHS or U.S. Consulate approved doctors. In addition, the applicant
must present proof of required vaccinations to the examining physician or be immunized at the
time of the exam.

A non-citizen who is determined by the Secretary of Health and Human Services (HHS)
to have a physical or mental disorder and behavior associated which the disorder that may pose
or has posed a threat to the property, safety or welfare of the non-citizen or others is
inadmissible.11 Note that this provision addresses current disorders. However a person who has
had such a disorder and prior conduct in the past is also inadmissible if the behavior is likely to
reoccur or will lead to other harmful behavior.12 The presence of a physical or mental illness
alone does not determine whether a person poses a significant risk.13 However, factors such as a
history of institutionalization, criminal history and violence where alcohol or psychoactive
substances were contributing factors, DUI and other factors may cause DHS to require a mental
status examination.14 Alcohol dependency including alcohol impaired driving may result in a
determination that the non-citizen has a mental disorder associated with harmful behavior.15

A non-citizen, who is determined by HHS to be a drug abuser or drug addict, is


inadmissible.16 Sometimes criminal defense attorneys reach plea agreements for drug offenses in
which the accused enters a drug rehabilitation program in lieu of a formal conviction.
Immigration practitioners should be aware that participation in such a program may lead to a
finding of drug abuse or addiction. On the other hand, a drug conviction carries even more
serious immigration consequences and can be construed as an aggravated felony.17

Drug abuse is defined as the non-medical use of a substance listed under the Controlled
Substances Act, which has not necessarily resulted in physical or psychological addiction, while
drug addiction is the same non-medical use which has resulted in dependence.18 However, it does
not include experimental use of drugs.19 A drug addict who has been in remission for three years
is no longer considered an addict.20 There is no waiver for drug addiction or abuse.

A person who accompanies another non-citizen who is found to be inadmissible under


the health provisions and whose protection or guardianship is needed is also inadmissible.

11
8 U.S.C. §1182(a)(1)(A)(iii)(I), INA §212(a)(1)(A)(iii)(I).
12
8 U.S.C. §1182(a)(1)(A)(iii)(II), INA §212(a)(1)(A)(iii)(II).
13
42 C.F.R. §34.4(b).
14
Yates memo, Assoc.Dir. Operations (Jan. 16, 2004), posted at AILA Infonet at 04022362 (Feb. 23, 2004).
15
Id.
16
8 U.S.C. §1182(a)(1)(A)(iv), INA §212(a)(1)(A)(iv).
17
See discussion, infra.
18
42 C.F.R. §34.2(g) and (h).
19
Cable DOS 91-State-416180 (Dec. 24, 1991), reprinted in 69 Interpreter Releases 6 (Jan. 6, 1992).
20
State Dep't cable (Dec. 24, 1991), describing HHS modification of previous restrictive interpretation, reproduced
in 69 Interpreter Releases 6 (1992). See also U.S. Dep't of State, 9 Foreign Affairs Manual (FAM) §40.11, n. 7.1.

3
Ostensibly, this provision is designed to ensure that a non-citizen who has mental or physical
disabilities will have a competent adult to assist him or her in departing from the U.S.21

The communicable disease ground of inadmissibility may be waived for certain non-
citizens.22 The waiver is available to a non-citizen who is the spouse, unmarried son or daughter
(regardless of his or her age), or minor unmarried adopted child of a U.S. citizen, a lawful
permanent resident or a person who has been issued an immigrant visa. A waiver is also
available to a non-citizen who has a son or daughter who is a U.S. citizen, a permanent resident
or person who has been issued an immigrant visa. VAWA immigrants are eligible for the waiver,
too.23 The terms of the waiver are determined by the DHS in consultation with HHS.

DHS has several policies regarding HIV waivers, although this may change based on the
recent legislation which returns authority to HHS. A non-immigrant may be admitted to the U.S.
for 30 days or less if he or she has no symptoms of AIDS, has sufficient insurance or resources
for medical care, and is not a danger to public health. DHS has recently issued a final rule which
liberalizes and streamlines the process of admission of non-immigrants with HIV.24 In addition,
non-immigrants may be admitted for academic or educational conferences or international
sporting events under a blanket designation by the Attorney General.25 A person seeking
permanent residence must be the spouse, unmarried son or daughter, unmarried adopted child or
parent of a U.S. citizen or permanent resident, not be a danger to public health, and establish that
he or she has sufficient insurance or resources for medical care.26 Note that the need for a waiver
may be reduced if HHS liberalizes its policies regarding the entry of persons with HIV.

A waiver is available for the vaccination requirement if the immunizations are not
medically appropriate or would be contrary to the non-citizen's religious beliefs.27 A waiver is
available for mental or physical disorders after consultation with the HHS under such terms and
conditions as the Attorney General may prescribe.28

C. Criminal and Other Misconduct—8 U.S.C. §1182(a)(2)

1. General principles

IIRAIRA provides a statutory definition of the term “conviction” which includes


deferred adjudication under the Texas statute.29 Note, however, that while a deferred

21
8 U.S.C. §1182(a)(10)(B), INA §212(a)(10)(B).
22
8 U.S.C. §1182(g), INA §212(g).
23
8 U.S.C. §1182(g)(1), INA §212(g)(1).
24
See, §212.4(f); http://bibdaily.com/pdfs/hiv_waiver_finalrule.pdf.
25
July 10, 1998 INS Fact Sheet on “HIV Infection: Inadmissibility and Waiver Policies.”
26
Memorandum from T. Alexander Aleinikoff, ICE Executive Associate Comm'r, to all INS offices, Immigrant
Waivers for Aliens Found Excludable Under Section 212(a)(10)(A)(i) of the Immigration and Nationality Act Due
to HIV Infection, File No. HQ 212.3-P (Sept. 6, 1995), reproduced in 72 Interpreter Releases 1347 (Oct. 2, 1995).
27
8 U.S.C. §1182(g)(2), INA §212(g)(2).
28
8 U.S.C. §1182(g)(3), INA §212(g)(3).
29
8 U.S.C. §1101(a)(48)(A), INA §101(a)(48)(A). See also, Matter of Rivera-Valencia, 24 I&N Dec. 484 (BIA
2008) (court-martial is a conviction).

4
adjudication is a conviction, it carries no term of imprisonment. The law defines "term of
imprisonment" and "sentence" to include a sentence that is suspended to a term of probation or
community supervision.30 Thus, an order of probation or community supervision under the Texas
statute constitutes a term of imprisonment. Because many of the grounds of inadmissibility and
deportability (but not all) are tied to a conviction or a term of imprisonment, these distinctions
are crucial.

In determining whether a crime meets the definition under the immigration statute, only
the minimum elements of the crime, based solely on record of conviction, may be considered.31
The actual conduct is irrelevant. This analysis, called the categorical approach and the modified
categorical approach, applies to both criminal grounds of inadmissibility and deportability.32 In
addition the doctrine of divisibility applies to the analysis of criminal convictions. If a criminal
statute involves multiple sections, some of which, for example, involve moral turpitude and
others which do not, and the record is not clear under which subsection a person has been
convicted, inadmissibility or deportability cannot be established, since the minimum conduct is
presumed.33

2. Convictions and admissions of crimes of moral turpitude

A person who has been convicted of, commits, admits the commission of or admits the
elements of a crime of moral turpitude is inadmissible. Note that no conviction is required for
this ground. However, in order to admit the elements of an offense, the non-citizen must admit to
all the facts and elements constituting the crime. DHS officials, however, do not always follow
these rules and attempt to obtain admissions of crimes without advising the non-citizen of the
elements of the offense.34

Moral turpitude is not defined under the statute. The Board of Immigration Appeals
(BIA) decisions are often less than illuminating.35 However, some general principles have
developed through judicial and administrative decisions. Moral turpitude offenses are crimes that
shock the public conscience, demonstrate baseness or vileness or contravene accepted standards
of morality. Offenses involving fraud or deceit are generally crimes of moral turpitude. Murder,
rape, voluntary manslaughter and robbery are also examples of crimes of moral turpitude.
Regulatory offenses are generally not crimes of moral turpitude.36 However, the BIA has

30
8 U.S.C. §1101(a)(48)(B), INA §101(a)(48)(B).
31
“Record of conviction” includes the judgment, sentence, plea agreement, plea transcript, indictment and
information, but not, for example, a police report. Matter of Teixeira, 21 I&N Dec. 316, 319 (BIA 1996).
32
The modified categorical approach allows the court to consider the entire conviction record as defined in Footnote
31.
33
Matter of Sweetser, 22 I&N Dec. 709 (BIA 1999).
34
Matter of E.N., 7 I&N Dec. 153 (BIA 1956).
35
See Matter of D, 1 I&N Dec. 190 (BIA 1942) (Crime of moral turpitude involves conduct “which is so far
contrary to the moral law, as interpreted by the general moral sense of the community, that the offender is brought to
public disgrace, is no longer generally respected, or is deprived of social recognition by good living persons.”)
36
For a more in depth discussion of crimes of moral turpitude and other criminal immigration issues, consult
Kesselbrenner and Rosenberg, Immigration Law and Crimes.

5
increasingly adopted an expansive interpretation of crimes of moral turpitude and of other
criminal provisions of the statute.

As discussed previously, whether a criminal offense is a crime of moral turpitude (or any
crime under the immigration laws) depends on the minimum elements of the offense, not the
actual facts of the case. In addition, some statutes are divisible, which means that they include
multiple sections which encompass conduct which is both turpitudinous and non-turpitudinous.
Under the categorical analysis, if the statute includes offenses not involving moral turpitude and
the record of conviction fails to specify under which section the non-citizen was convicted,
he/she is not inadmissible as the court must presume the minimum conduct.

3. Drug crimes and known traffickers

A person who is convicted of or who admits committing the elements of a crime relating
to a controlled substance as defined under federal law is inadmissible.37 This provision includes
attempts and conspiracy to commit such offenses. The drug must be one encompassed by federal
law. Some drug offenses are also aggravated felonies.38

A waiver is available for a non-citizen who possesses 30 grams or less of marijuana for
his or her personal use and who is the spouse, parent, son or daughter of a U.S. citizen or
permanent resident who would suffer extreme hardship if the non-citizen were not granted the
waiver. VAWA applicants are also eligible for the waiver.39 The Texas misdemeanor possession
statute criminalizes less than 2 ounces of marijuana which includes quantities that could be more
or less than 30 grams. It is important to obtain the police report or other proof that the actual
amount in question was 30 grams or less.

A non-citizen whom a consular officer or the Attorney General knows or has reason to
believe is or has been an illicit trafficker in a controlled substance is inadmissible. No conviction
is needed under this provision,40 although the “reason to believe” must have existed at the time
of entry.41 In addition, a person who has aided and abetted drug trafficking is also inadmissible.
Finally, the spouse, son or daughter of a trafficker, who within the last five years, has obtained
any financial or other benefit from the drug activity and who knew or reasonably should have
known of the activity is inadmissible.42

4. Two crimes with an aggregate sentence of five years

A non-citizen who has been convicted of two crimes, regardless of whether either is a
crime of moral turpitude and regardless of whether they arose out of a single scheme of criminal

37
8 U.S.C. §1182(a)(2)(A)(i)(II), §212(a)(2)(A)(i)(II). Controlled substances are defined under 21 U.S.C. §802.
38
See, 8 U.S.C. §1101(a)(43)(C), INA §101(a)(43)(C).
39
8 U.S.C. §1182(h), INA §212(h).
40
Matter of Rico, 16 I&N Dec. 181 (BIA 1977).
41
Matter of Rocha, 20 I&N Dec. 944 (BIA 1995).
42
8 U.S.C. 1182(a)(2)(C), INA §212(a)(2)(C).

6
misconduct, is inadmissible if the aggregate sentences to confinement are at least five years.43
Unlike the moral turpitude inadmissibility ground, this subsection requires a conviction, not an
admission. Although deferred adjudication under the Texas statute is considered a conviction for
immigration purposes, it does not include a “sentence to confinement” that is subsequently
suspended.44 On the other hand, a suspended sentence with community supervision is considered
a term of confinement. Thus, for example, a person who committed two non-turpitudinous
crimes and received five years community supervision (probation) would be inadmissible, but
would not be if he received two sentences of deferred adjudication.

5. Prostitution

A non-citizen coming to the U.S. to engage in prostitution or who has engaged in


prostitution in the last ten years before filing for adjustment of status, admission or a visa is
inadmissible. This subsection also bars persons who have procured or attempted to procure
prostitutes and persons who are coming to the U.S. to engage in “any other unlawful
commercialized vice.”45 The prohibition against “procurers” does not extend to a person who is
arrested for soliciting or having sex with a prostitute.46 A waiver is also available for
prostitution.47

6. Serious crimes and immunity

A non-citizen who has committed a “serious criminal offense” in the U.S. and has been
given immunity from prosecution, who departs from the U.S. because of such immunity and
offense, and who has not subsequently submitted to the jurisdiction of a U.S. court is
inadmissible.48 A serious criminal offense includes a felony, crime of violence, and crime of
reckless driving or driving while under the influence of drugs or alcohol if the offense resulted in
injury to another. This provision is directed, inter alia, to foreigners who assert diplomatic
immunity.49

7. Religious freedom persecutors

A foreign government official and his or her spouse and children who within the
preceding 24 months (before applying for admission, adjustment of status or a visa) were
responsible for or carried out severe violations of religious freedom as defined under provisions
of federal law are inadmissible.50

43
8 U.S.C. §1182(a)(2)(B), INA §212(a)(2)(B). Compare with the multiple criminal grounds of deportation which
are limited to crimes of moral turpitude not arising out of a single scheme of criminal misconduct, although there is
no minimum sentence required. See discussion, infra.
44
8 U.S.C. §1101(a)(48)(A), INA §101(a)(48)(A).
45
8 U.S.C. §1182(a)(2)(D), INA §212(a)(2)(D).
46
Matter of Gonzalez-Zoquiapan, 24 I&N Dec 549 (BIA 2008); Matter of R-, 6 I&N Dec. 444 (BIA 1954);
47
8 U.S.C. §1182(h), INA §212(a)(h).
48
8 U.S.C. §1182(a)(2)(E), INA §212(a)(2)(E).
49
8 U.S.C. §1101(h), INA §101(h).
50
8 U.S.C. §1182(a)(2)(G), INA §212(a)(2)(G).

7
8. Traffickers in persons

A non-citizen who has been designated under federal law to be a trafficker in persons or
whom the consular officer or the Attorney General has reason to believe is or has been an aider
and abetter of a trafficker is inadmissible.51 Additionally, the spouse, son or daughter of such
trafficker, who, within the last five years, has received a financial or other benefit from such
activity and who knew or should have known of the illicit activity, is inadmissible as well.52 The
latter provision does not apply to a son or daughter (defined under the INA as over the age of 21)
who was a child (defined under the INA as under the age of 21) at the time he or she received the
benefit of the illicit trafficking.

9. Money laundering

As added by the USA Patriot Act, a non-citizen who the consular official or Attorney
General knows or has reason to believe has engaged in or who is coming to the U.S. to engage in
certain money laundering offenses is inadmissible.53 Likewise, a person who has aided or abetted
in such offenses is also inadmissible.54

D. Security, Terrorism, Foreign Policy and Persecutors—8 U.S.C. §1182(a)(3)

While the terrorism and security inadmissibility provisions were previously part of the
INA, they were expanded under the USA Patriot Act. The definitions of “terrorist activity” and
“engaging in terrorist activity” were broadened and new grounds of inadmissibility for
representatives of terrorist organizations and their families were added.

A non-citizen who a consular officer or the Attorney General knows or has reason to
believe seeks to enter the U.S. to engage solely, principally or incidentally in espionage,
sabotage, the violation of export laws of U.S. goods, technology or sensitive information, the
overthrow of the U.S. government by force or other unlawful activity, is inadmissible.55

A non-citizen who has engaged in terrorist activity or who the consular officer or the
Attorney General knows or has reason to believe is likely to engage in such activity is
inadmissible. “Terrorist activity” is defined as hijacking or sabotage; seizing, detaining,
threatening to kill or injure a person to compel a government to do or refrain from doing any act;
a violent act upon an internationally protected person as defined under other provisions of federal
law; assassination; the use of biological, chemical, nuclear and explosive weapons and firearms
to endanger the safety or property of others or a threat, attempt or conspiracy to do any of these
acts.56 The term “engage in terrorist activity” includes a broad range of activities including the

51
8 U.S.C. §1182(a)(2)(H)(i), INA §212(a)(2)(H)(i).
52
8 U.S.C. §1182(a)(2)(H)(ii), INA §212(a)(2)(H)(ii).
53
8 U.S.C. §1182(a)(2)(I)(i), INA §212(a)(2)(I)(i).
54
8 U.S.C. §1182(a)(2)(I)(ii), INA §212(a)(2)(I)(ii).
55
8 U.S.C. §1182(a)(3)(A), INA §212(a)(3)(A).
56
8 U.S.C. §1182(a)(3)(B)(iii), INA §212(a)(3)(B)(iii).

8
preparation and gathering of information for a terrorist activity, the solicitation of funds, material
support and individuals for a terrorist activity or organization.57

A non-citizen who is a representative of a foreign terrorist organization or of a political,


social, or other group whose public endorsement of terrorist activity is deemed to undermine
U.S. efforts to fight terrorism is also inadmissible.58 Moreover, a member of a foreign terrorist
organization or an organization which the non-citizen knows or should have known is a terrorist
organization is inadmissible.59 The Secretary of State designates foreign organizations as terrorist
organizations through publication in the federal register.60 Finally, a person who associates with
a terrorist organization and who intends to engage in activities that could endanger U.S. security
or welfare is inadmissible. Note that under this provision membership in the organization is not
required.61

A non-citizen whose entry into the U.S. would have serious adverse foreign policy
consequences is inadmissible. However, an official or candidate for office of a foreign
government may not be denied admission based solely on the person’s beliefs or associations, if
such would be lawful within the U.S.62 A person who is or has been a member of the Communist
or other totalitarian party is inadmissible as well. However, with the end of the Cold War, there
are several exceptions. First, the provision does not apply if the membership in such party was
involuntary, occurred while under the age of 18 or was for the purposes of obtaining employment
or basic living needs. Second, it does not apply if membership in such party ended 2 years before
the date of application for admission, adjustment of status or a visa, or 5 years before such date if
the party is still in control of the government. Third, a waiver is available, based on
humanitarian, public interest or family unity concerns, for a person who seeks permanent
residence who is the parent, spouse, son, daughter, brother or sister of a U.S. citizen, or who is
the spouse, son or daughter of a permanent resident.63

A non-citizen who, during the Nazi period, participated or assisted in the persecution of
others on the basis of race, religion, national origin or political opinion is inadmissible. A person
who has engaged in genocide at any time is also barred from admission.64

E. Public Charge—8 U.S.C. § 1182(a)(4)

A non-citizen who is likely to become a public charge is inadmissible.65 This ground of


inadmissibility arises most frequently when a person applies for permanent residence. The statute
specifically states that age, health, family status, assets, resources and financial status, education

57
8 U.S.C. §1182(a)(3)(B)(iv), INA §212(a)(3)(B)(iv); Matter of S-K, 23 I&N Dec. 936 (BIA 2006).
58
8 U.S.C. §1182(a)(3)(B)(i)(IV), INA §212(a)(3)(B)(i)(IV).
59
8 U.S.C. §1182(a)(3)(B)(i)(V), INA §212(a)(3)(B)(i)(V).
60
Id.; 8 U.S.C. §1189, INA § 219.
61
8 U.S.C. §1182(a)(3)(F), INA §212(a)(3)(F).
62
8 U.S.C. §1182(a)(3)(C), INA §212(a)(3)(C).
63
8 U.S.C. §1182(a)(3)(D), INA §212(a)(3)(D).
64
8 U.S.C. §1182(a)(3)(E), INA §212(a)(3)(E).
65
8 U.S.C. §1182(a)(4), INA §212(a)(4).

9
and skills and any affidavit of support must be considered.66 In addition to these criteria, persons
who seek permanent residence based on one of the family based immigrant categories must
submit a binding, contractual affidavit of support.67 Certain employment based immigrants must
also submit the affidavit.68

The U.S. citizen or permanent resident who has filed the petition for the family member
must execute the affidavit and demonstrate that, based on the size of his/her family (the affiant’s
family) and the sponsored non-citizen and his/her family, he or she can demonstrate income and
assets that are at least 125% over the federal poverty guidelines.69 If the sponsored immigrant has
lived in the household of the sponsor affiant for six months, his or her income may be included
to reach the required 125% level.

The income of other family members who reside in the household of the sponsor may be
considered if the family member pledges his income to the immigrant. One-fifth of the value of
the assets of both the sponsor and the immigrant may also be added in to meet the income
requirements.70 Certain documents, such as the last year’s income tax returns, are generally
required. A joint sponsor may submit an affidavit of support to fulfill the requirement but he or
she must meet the 125% income level based on his/her family size; he or she may not simply add
his/her income to the principal sponsor’s income and affidavit of support to meet the poverty
guidelines. No affidavit of support is required if the non-citizen seeking permanent residence or
her spouse or parent (if the non-citizen is a minor) has 40 qualify quarters of Social Security
contributions.71 Likewise, no affidavit of support is required for a non-immigrant who benefits
from the Child Citizenship Act. Thus, a child under age eighteen who obtains permanent
residency through a U.S. citizen parent does not need an affidavit of support because he or she
will automatically become a citizen upon obtaining permanent residency. 72

By signing the affidavit of support, the sponsor agrees to repay the federal or state
government for any means-tested public benefits received by the sponsored immigrant.73 The
regulations and procedures for affidavits of support are very complex and should be studied
carefully.74

F. Labor Certification and Qualifications for Certain Immigrants—8 U.S.C.


§1182(a)(5)

66
8 U.S.C. §1182(a)(4)(B)(i)(I)-(IV) and (ii), INA §212(a)(4)(B)(i)(I)-(IV) and (ii).
67
8 U.S.C. §1182(a)(4)(C), INA §212(a)(4)(C).
68
Employment based immigrants where the petition is filed by a relative who has a significant (5%) ownership
interest. 8 U.S.C. §1182(a)(4)(D), INA §212(a)(4).
69
8 U.S.C. §1183(a), INA §213(a). The poverty guidelines are published each spring by the Department of Health
and Human Services.
70
See generally, 8 C.F.R. §213a.1 et.seq.
71
8 C.F.R. §213(a)(2)(ii)(C).
72
8 C.F.R. §213(a)(2)(ii)(E).
73
8 U.S.C. §1183(a) and (b), INA §213(a)and(b).
74
See, e.g., 8 C.F.R. §213(a), 62 Fed. Reg. 54346 (Oct.20, 1997) and additional DHS and State Department
memoranda regarding the affidavit of support.

10
A non-citizen who enters the U.S. as a permanent resident must immigrate through one of
the family-based immigrant or employment categories, the diversity visa program or other
specific permanent residence provisions. In order to obtain an employment based visa, the non-
citizen must generally have an approved labor certification, issued by the Department of Labor.75
In addition, there are special rules of inadmissibility for professional athletes, physicians and
other health care workers who seek to work in the U.S.76

G. Illegal Entrants and Immigration Violators—8 U.S.C. §1182(a)(6)

1. Present without proper admission

A non-citizen who is present in the U.S. without permission or parole or who arrives in
the U.S. at a time or place not designated by the Attorney General is inadmissible.77 “Parole” is
DHS’s permission to enter the U.S for a designated period but it is not considered an
“admission” for other immigration purposes. This provision is one of the most common grounds
of inadmissibility and used to remove (deport) persons from the U.S. who enter the U.S.
illegally.

Battered immigrants and children who qualify for relief under the Violence Against
Women Act (VAWA) provisions of the INA are not subject to this inadmissibility provision if
they can show a substantial connection between the battery or extreme cruelty (requirements for
VAWA eligibility) and the unlawful presence in the U.S.78 If they arrived in the U.S. before
April 1, 1997, they do not need to show the domestic violence connection.79

2. Failure to attend a removal hearing

A non-citizen who fails to appear for a removal hearing without reasonable cause is
inadmissible for five years after his or her subsequent departure or removal.80 This provision is
very harsh because the case law on “reasonable cause” for failure to appear is very restrictive and
because the non-citizen is barred from any relief until he or she leaves and waits outside the
country for five years. Note however that the language “reasonable cause” is arguably a lesser
standard than “exceptional circumstances,” the statutory language required to obtain a motion to
reopen an in absentia order of removal.81 The bar applies only to removal proceedings, initiated
under IIRAIRA, not to earlier proceedings under the previous law and only if the person departs
or is removed.82 There are no waivers for this provision.

3. Fraud or misrepresentation

75
8 U.S.C. §1182(a)(5)(A)(i), INA §212(a)(5) (A)(i).
76
8 U.S.C. §1182(a)(5)(A)(iii) and (B); INA §212(a)(5)(A)(iii) and (B); 8 U.S.C. §1182(a)(5)(B) and (C); INA
§212(a)(5)(B) and (C).
77
8 U.S.C. §1182(a)(6)(A)(i), INA §212(a)(6)(A)(i).
78
8 U.S.C. §1182(a)(6)(A)(ii), INA §212(a)(6)(A)(ii).
79
IIRAIRA, §301(c)(2).
80
8 U.S.C. §1182(a)(6)(B), INA §212(a)(6)(B).
81
Compare 8 U.S.C. §1229(a)(5)(C) and INA §240(a)(5)(C) with 8 U.S.C. §1229(e)(1), INA §240(e)(1).
82
June 17, 1997, INS Memorandum of Acting Executive Associate Commissioner Paul Virtue.

11
A non-citizen who has obtained or seeks to obtain a visa, other documentation,
admission or other benefit under the INA by fraud or by a material misrepresentation is
inadmissible.83 It does not matter that the misrepresentation would not have resulted in
ineligibility for the visa, admission or benefit. Rather, a misrepresentation is material if it is
willful and cuts off a legitimate line of inquiry.84

A limited waiver of this provision is available. A person seeking admission, who is the
spouse or the son or daughter of a U.S. citizen or permanent resident or who is a VAWA
applicant and who can establish extreme hardship to such qualifying relative, is eligible for the
waiver.85 “Extreme hardship” is an immigration term of art and a high standard to meet.86 Note
that the waiver is no longer available, as it was before IIRAIRA, to persons who are parents of a
U.S. citizen or permanent resident child.

4. False claim to U.S. citizenship

A non-citizen, who after Sept. 30, 1996, makes a false claim to U.S. citizenship for any
purpose or benefit under the INA or any other federal or state law is inadmissible.87 This
provision is very broad and adversely affects many undocumented immigrants who have been
raised for many years in the U.S. and may very well consider or think that they are U.S. citizens.
There is only a limited exception to this provision for a person who has resided in the U.S. as a
permanent resident prior to the age of 16, whose natural or adoptive parents were U.S. citizens,
and who reasonably believed that he or she was a citizen.88 For all other persons, the ground of
inadmissibility is permanent.

There is little reported case law on this section. An argument can be made that checking
the box marked “citizen or national” on an I-9 form is not a false claim to citizenship as
“national” is not synonymous with “citizen.”89

5. Stowaways

A person who is a stowaway is inadmissible.90

6. Smugglers

A non-citizen who has knowingly encouraged, assisted, aided or abetted another alien to
enter or try to enter the U.S. is inadmissible.91 This inadmissibility ground does not require a

83
8 U.S.C. §1182(a)(6)(C)(i), INA §212(a)(6)(C)(i).
84
Kungys v. U.S., 108 S.Ct. 1537 (1988).
85
8 U.S.C. §1182(i), INA §212(i).
86
See, e.g., Matter of Cervantes, 22 I&N Dec. 560(BIA 1999).
87
8 U.S.C. §1182(a)(6)(C)(ii), INA §212(a)(6)(C)(ii).
88
8 U.S.C. §1182(a)(6)(C)(ii)(II), INA §212(a)(6)(C)(ii)(II).
89
U.S. v. Karaouni, 370 F.3d 1139 (9th Cir. 2004), In Re Oduor, 2005 WL 1104203 (BIA). But see, Ateka v.
Ashcroft, 384 F.3d 954 (8th Cir. 2004); In re Ankomah, 2006 WL 448200 (BIA).
90
8 U.S.C. §1182(a)(6)(D), INA §212(a)(6)(D).

12
conviction nor does the smuggling have to be for profit or gain. This provision does not apply to
a person who is a “family unity” immigrant and who has smuggled only his/her spouse, parent,
son or daughter.92 A waiver is available to assure family unity or for humanitarian or public
interest reasons for other immigrants seeking permanent residence if such immigrant has only
smuggled his/her spouse, parent, son or daughter and no other individual.93

7. Document fraud

A non-citizen who has a final order of document fraud, a civil penalty imposed by an
administrative law judge, is inadmissible.94 Note that the use of false documents, although it may
raise issues of the admission of a crime of moral turpitude, is not an independent ground of
inadmissibility, absent an order of document fraud.95 A waiver is available if the non-citizen can
establish that use of false documents was only to support or assist his or her spouse or child and
no other individual.96

8. Student visa abusers 97

A non-citizen who enters on an F-1 student visa to attend private school and who
transfers to a public school or who enters on a F-1 visa to attend public school for more than 12
months without reimbursing the school district for tuition is inadmissible until he or she remains
outside the U.S. for five years.98 This provision only applies to students who enter on a student
visa, not to undocumented students or others who attend public school without such visa. The
latter are entitled to attend public school under the Supreme Court’s decision in Plyer v. Doe.

H. Documentation requirements—8 U.S.C. §1182(a)(7)

A non-citizen who is not in possession of a valid immigrant visa, or other document to


enter the U.S. is inadmissible.99 This provision is used for a person whose visa is irregular or
invalid or a person who attempts to enter as non-immigrant, but whom DHS suspects is coming
to work or live in the U.S. There is a very limited waiver for persons whose status changed
between the time of the issuance of the immigrant visa (permanent residence) and their actual
entry into the U.S.100 Non-immigrants are inadmissible if they do not have a passport that is valid
for six months beyond the date of authorized stay in the U.S. or do not have a valid non-
91
8 U.S.C. §1182(a)(6)(E), INA §212(a)(6)(E).
92
8 U.S.C. §1182(a)(6)(E)(ii), INA §212 (a)(6)(E)(ii), §301(b)(1) of IMMACT 90. Family unity applies to family
members whose qualifying relatives immigrated under the legalization (amnesty) or special agricultural worker
(SAW) programs of the late eighties.
93
8 U.S.C. §1182(d)(11), INA §212(d)(11).
94
8 U.S.C. §1182(a)(6)(F), INA §212(a)(6)(F).
95
ICE has argued with mixed success that the use of false documents is a crime of moral turpitude. Practitioners
should not concede this issue. Beltran-Tirado v. INS, 213 F.3d 1179 (9th Cir., 2000)(holding that false use of a social
security card is not a crime of moral turpitude.
96
8 U.S.C. §1227(a)(3)(C)(ii), INA §237(a)(3)(C)(ii).
97
The wording in IIRAIRA is indicative of its restrictive nature, i.e., student “abusers.”
98
8 U.S.C. §1182(a)(6)(G), INA §212(a)(6)(G); 8 U.S.C. §1184(l), INA §214(l).
99
8 U.S.C. §1182(a)(7)(A)(i), INA §212(a)(7)(A)(i).
100
8 U.S.C. §1182(k), INA §212(k).

13
immigrant visa at all.101 There are also special provisions in this section of the statute for persons
eligible to enter the U.S. without a visa (the visa waiver program and persons from Guam).

I. Ineligibility for Citizenship—8 U.S.C. §1182(a)(8)

A non-citizen who is permanently ineligible for citizenship is inadmissible. This


provision applies to a person who has requested an exemption or discharge from military service
based on alienage. It does not extend to a non-citizen that is barred from citizenship for other
reasons, such a conviction of an aggravated felony. 102

A person who has left the U.S to avoid military service during a time or war or national
emergency, is also inadmissible unless the person is a non-immigrant and seeks to re-enter as a
non-immigrant. Persons who left the U.S. during the Vietnam War are exempt from this
provision.103

J. Aliens Previously Removed and Unlawfully Present—8 U.S.C. §1182(a)(9)

1. Persons previously removed

A non-citizen who has been ordered removed is barred from reentry into the U.S. unless
he or she remains outside the U.S. for a requisite number of years, depending on the type of and
reasons for the removal. A person who is ordered removed under expedited removal at the border
or who is removed as an arriving alien at the border or port of entry is barred for five years. If
such person is subjected to a second removal order, he or she is barred for 20 years. If he or she
has been convicted of an aggravated felony, the bar is permanent.104

A non-citizen who is ordered removed under current law or deported under previous law
or who departs the U.S. while such order is outstanding is inadmissible for 10 years after such
departure or 20 years in the case of a second removal. A non-citizen who has been convicted of
an aggravated felony and removed is permanently inadmissible.105

Persons who have been previously removed or deported are also subject to reinstatement
of removal under INA §241(a)(5), which authorizes ICE, subject to very limited exceptions, to
simply reinstate the previous order and remove the person again from the U.S. Such person is not
eligible for a removal hearing and cannot apply for relief, despite, for example, his or her
eligibility for adjustment of status based on a family member.

However, a person who has been previously removed and who has not remained outside
the U.S. for the requisite period of time may apply for permission to reenter after deportation.

101
8 U.S.C. §1182(a)(7)(B), INA §212(a)(7)(B).
102
8 U.S.C. §1182(a)(8)(A), INA §212(a)(8)(A); Matter of Kanga, 22 I&N Dec. 1206 (BIA 2000).
103
8 U.S.C. §1182(a)(8)(B), INA §212(a)(8)(B). President Carter issued a pardon and executive order for Vietnam
War era departures.
104
8 U.S.C. §1182(a)(9)(A)(i), INA §212(a)(9)(A)(i).
105
8 U.S.C. §1182(a)(9)(A)(ii), INA §212(a)(9)(A)(ii).

14
This discretionary permission is even available to persons who are permanently barred as
aggravated felons. However, it is very difficult to obtain permission to reapply for aggravated
felons. Additionally, aggravated felons generally are subject to other grounds of inadmissibility
as well.106

2. Unlawful presence

A non-citizen who is unlawfully present and who departs and seeks to re-enter the U.S. is
inadmissible. Note that this provision includes persons who have been unlawfully in the U.S. and
leave voluntarily as well as those removed.107 The rules regarding what constitutes unlawful
presence are very complicated and beyond the scope of this introductory article. There are still
no regulations regarding unlawful presence, although this provision was added by the 1996
IIRAIRA legislation. Instead, DHS has issued a series of memoranda and written guidance on
the interpretation of unlawful presence. The practitioner should carefully review these guidelines
before advising a client who has been unlawfully present to depart the U.S., as the bars will then
apply.

This ground of inadmissibility is popularly known as the “3 and 10 year bars.” A non-
citizen who is unlawfully present in the U.S. for more than 180 days but less than one year, and
who voluntarily departs from the U.S. before proceedings are initiated against him or her, is
inadmissible for 3 years. Note that the person must depart the U.S. voluntarily in order for the
bar to apply. Thus a person who has been in the U.S. for more than 180 days, but has not left
since the enactment of IIRAIRA is not subject to this bar.108

A non-citizen who is unlawfully present for more than one year and who departs either
voluntarily or who is removed is inadmissible for 10 years. Again, this subsection also requires
an actual departure or removal from the country.109 The departure need not be pursuant to a
removal order or a voluntary departure order in lieu of removal. Any departure triggers the 10
year bar.110

Both provisions apply only to unlawful presence after April 1, 1997 and to consecutive
days of unlawful presence.111 The unlawful presence must precede the departure.112

The 3 and 10 year bars do not apply to any period of time during which the non-citizen
was under the age of 18 or during which he or she was a family unity beneficiary (certain non-
citizens whose relatives obtained permanent residence under the legalization or special
agricultural workers program in the eighties, commonly known as amnesty). Similarly, the bars
do not apply to an asylum applicant, so long as he or she has never worked without

106
8 U.S.C. §1182(a)(9)(A)(iii), INA §212(a)(9)(A)(ii).
107
8 U.S.C. §1182(a)(9)(B), INA §212(a)(9)(B).
108
8 U.S.C. §1182(a)(9)(B)(i)(I), INA §212(a)(9)(B)(i)(I).
109
8 U.S.C. §1182(a)(9)(B)(i)(II), INA §212(a)(9)(B)(i)(II).
110
Matter of Lemus, 24 I&N Dec. 373 (BIA 2007).
111
Compare with the provisions regarding unlawful reentry after prior unlawful presence, discussed infra, which
includes aggregate, rather than consecutive, periods of time.
112
Matter of Rodarte, 23 I&N Dec. 905 (BIA 2006).

15
authorization, and to VAWA applicants who can show a substantial connection between
unlawful presence and the abuse.113 Unlawful presence does not accrue during the period of
voluntary departure, although it does accrue while court proceedings are pending, unless another
exception applies. There is no accrual during the pendency of a timely filed, non-frivolous
application for a change or extension or stay, so long as the applicant has not engaged in
unauthorized employment.114

3. Unlawful presence after previous immigration violations

A non-citizen who has been unlawfully present in the U.S. in the aggregate of one year
or more or who has been removed or deported and enters or attempts to enter the U.S. without
being admitted is inadmissible.115 The illegal reentry and unlawful presence must have occurred
after April 1, 1997. There is no waiver of this provision until the non-citizen has remained
outside the U.S. for ten years. After that period, he or she may apply for permission to reapply
for admission after removal, a discretionary determination of DHS.116 Nevertheless, a person
who has been removed and reenters without admission is subject to this provision, even if she
has received permission to reapply.117 A VAWA applicant may apply for a waiver without
waiting the ten year period, if she can establish a substantial connection between the abuse and
the unlawful presence, removal or illegal reentry.118

Section 245(i), which allows for adjustment of status for persons who enter illegally and
are in the U.S. without permission or parole, does not trump the unlawful presence grounds of
inadmissibility under §212(a)(9).119

K. Miscellaneous Grounds Including Unlawful Voters—8 U.S.C. §1182(a) (10)

1. Polygamists

A non-citizen who is coming to the U.S. to practice polygamy is inadmissible.120

2. Guardians required to accompany helpless alien

See, discussion, supra, regarding health grounds of inadmissibility.

113
8 U.S.C. §1182(a)(9)(B)(iii), INA §212(a)(9)(B)(iii).
114
8 U.S.C. §1182(a)(9)(B)(iv), INA §212(a)(9)(B)(iv). The ICE extended the period beyond the statutory period of
120 days in recognition of its inability to adjudicate applications within this time frame. Memorandum from Michael
A. Pearson, Executive Associate Commissioner, "Section 222(g) of the Immigration and Nationality Act,"
HQ70/12-P IN 00-14 (March 3, 2000).
115
8 U.S.C. §1182(a)(9)(C), INA §212(a)(9)(C).
116
8 U.S.C. §1182(a)(9)(C)(ii), INA §212(a)(9)(C)(ii).
117
Matter of T-G, 23 I&N Dec. 866 (BIA 2006).
118
8 U.S.C. §1182(a)(9)(C)(ii), INA §212(a)(9)(C)(ii).
119
Matter of Briones, 24 I. & N. Dec. 355 (BIA 2007); Matter of Lemus, 24 I&N Dec. 373 (BIA 2007). But see,
e.g., Padilla-Caldera v. Gonzales, 453 F.3d 1237 (10th Cir. 2005).
120
8 U.S.C. §1182(a)(10)(A), INA §212(a)(10)(A).

16
3. International child abduction

A non-citizen who retains or colludes in retaining a child outside the U.S. in violation of
a U.S. court custody order is inadmissible.121

4. Unlawful voters

A non-citizen who votes in any federal, state or local election is inadmissible. Analogous
to the exception for false claims to U.S. citizenship, a person who entered the U.S. as a
permanent resident before age 16, whose parents or adoptive parents were U.S. citizens and who
reasonably believed at the time of the violation that he or she was a U.S. citizen is not barred
under this ground.122 Practitioners should caution permanent resident clients about this provision
because voter registration cards are often sent out based on driver license information.

5. Renunciation of citizenship

A former U.S. citizen who renounces U.S. citizenship to avoid taxes is inadmissible.123

IV. Deportation Grounds

Persons who have been admitted to the U.S. in any category may only be removed from
the U.S. under the grounds of deportability.124 Generally, although not always, the deportation
grounds are narrower than the inadmissibility grounds. For example, while criminal conduct and
admissions may form the basis for inadmissibility, most criminal deportation grounds require an
actual conviction.125

Cancellation of removal is available to certain permanent residents facing deportation,


unless they have been convicted of an aggravated felony.126 Eligibility for cancellation is beyond
the scope of this article. Others waivers may apply as well.

A. Inadmissibility at the Time of Entry or Violation of Status—8 U.S.C.


§1227(a)(1)

1. Inadmissibility at the time of entry

A non-citizen who is admitted, but who should not have been so admitted because he or
she was inadmissible at the time of entry127 or adjustment of status, is deportable.128 For

121
8 U.S.C. §1182(a)(10)(C), INA §212(a)(10)(C).
122
8 U.S.C. §1182(a)(10)(D), INA §212(a)(10)(D).
123
8 U.S.C. §1182(a)(10)(E), INA §212(a)(10)(E).
124
8 U.S.C. §1227, INA §237.
125
Compare, e.g. 8 U.S.C. §1182(a)(2)(A)(i), INA §212(a)(2)(A)(i) with 8 U.S.C. §1227(a)(2)(A)(i), INA
§237(a)(2)(A)(i).
126
8 U.S.C. §1229(a), INA §240(a). Non-citizens with pre-IIRAIRA convictions are eligible for old §212(c) relief.
INS v. St. Cyr, 121 S. Ct. 2271 (2001).

17
example, a person who is admitted as a permanent resident to the U.S. as the unmarried son of a
U.S. citizen, but who was actually married at the time of admission is “inadmissible at the time
of entry.” Since the non-citizen has already been admitted to the country, the grounds of
deportation, not inadmissibility, apply.

A waiver is available for misrepresentations that lead to this deportation charge if the
non-citizen is the spouse, parent, son or daughter of a U.S. citizen or permanent resident or is a
VAWA applicant.129

1. Violation of the terms of a non-immigrant visa

A non-immigrant who fails to maintain such status or who violates the conditions of such
status is deportable.130 Thus, a student admitted on an F-1 non-immigrant student visa who either
drops out of school or who works without permission is deportable under this subsection.
Persons who are admitted under a §212(g) waiver for health related reasons who fail to comply
with the conditions set by HHS for such waiver are also deportable.131

2. Marriage fraud

A non-citizen is considered to be deportable for having procured a visa by fraud if he or


she obtains permanent residence on the basis of a marriage entered into less than two years
before obtaining such status and which, within two years thereafter, is legally terminated.
Likewise, a non-citizen is deportable if, in the opinion of the Attorney General, he or she fails or
refuses to comply with the marital agreement.132

3. Termination of conditional residence

Certain permanent residents are initially granted conditional permanent residence, if they
immigrate based on a marriage to a U.S. citizen or permanent resident that is of less than two
years duration at time of the approval of the residence application. An “alien entrepreneur,” who
immigrates based on a sizeable investment also receives conditional residence. After two years in
such status, the conditional resident must take certain steps to remove the conditions of
permanent residence. Those who fail to do so are deportable because their conditional residence
has been terminated.133

4. Smuggling

127
Generally, IIRAIRA changed the terminology of “entry” to “admission”. However, the term “entry” is still found
in very limited sections of the statute, e.g. the smuggling deportation ground. Whether the variance in terminology is
significant depends on the particular situation and whether under rules of statutory construction, the two terms mean
something different.
128
8 U.S.C. §1227(a)(1)(A), INA §237(a)(1)(A).
129
8 U.S.C. §1227(a)(1)(H), INA §237(a)(1)(H).
130
8 U.S.C. §1227(a)(1)(C), INA §237(a)(1)(C).
131
8 U.S.C. §1227(a)(1)(C)(ii), INA §237(a)(1)(c)(ii).
132
8 U.S.C. §1227(a)(1)(G), INA §237(a)(1)(G).
133
8 U.S.C. §1227(a)(1)(D), INA §237(a)(1)(D).

18
A non-citizen, who prior to the date of entry,134 at the time of any entry or within five
years of entry, has knowingly encouraged, assisted, aided or abetted another alien to enter or try
to enter the U.S. in violation of law in deportable.135 This ground of deportation does not require
a conviction nor does the smuggling have to be for profit or gain. Note that the smuggling must
have occurred prior to or at the time of entry, or within five years of entry. Thus, for example, a
non-citizen, whose only departures in the last five years have been to visit family members,
would not have made an "admission" or "entry" during this period of time. If he committed the
smuggling offense without ever leaving the U.S., he would not have made an "entry" within the
last five years.136 On the other hand, if he departed to make arrangements for the smuggling
offense, upon return, he would make an admission/entry upon return and would be subject to this
ground of deportation, as having committed the offense within five years of his last entry.

A conviction for alien smuggling section of 8 U.S.C. §1324 is not only a ground of
deportation under this subsection but also under the aggravated felony deportation provision. 137

This provision does not apply to a “family unity” immigrant who has smuggled only
his/her spouse, parent, son or daughter.138 A waiver is available to assure family unity or for
humanitarian or public interest reasons for other immigrants seeking permanent residence if such
immigrant has only smuggled his/her spouse, parent, son or daughter and no other individual.139

B. Criminal Grounds—8 U.S.C. §1229(a)(2)

Deportability for offenses which require a conviction are determined by the record of
conviction and the minimum elements of the crime as previously discussed. The doctrine of
divisibility applies and the actual facts of the offense are irrelevant.

1. Crimes of moral turpitude

A non-citizen who is convicted of a crime of moral turpitude committed within five years
of admission for which a sentence of one year or more may be imposed is deportable.140 Unlike
the crime of moral turpitude inadmissibility ground, the provision requires an actual conviction.
This deportation ground is tied to the non-citizen's last “admission.”141 If the non-citizen has not

134
Here the statutory language was not modified to “admission.” Government attorneys have argued with mixed
success that “entry” can be defined more broadly than “admission.” There is no precedent decision on this issue.
135
8 U.S.C. §1227(a)(1)(E), INA §237(a)(1)(E).
136
See footnote 134.
137
See discussion, infra. However, a conviction for aiding and abetting the violation of 8 U.S.C. §1325 (illegal
entry) is not an aggravated felony.
138
8 U.S.C. §1227 (a)(6)(E)(ii), INA §237(a)(6)(E)(ii), §301(b)(1) of IMMACT 90. Family unity applies to family
members whose qualifying relatives immigrated under the legalization (amnesty) or special agricultural worker
(SAW) programs of the late eighties.
139
8 U.S.C. §1182(d)(11), INA §212(d)(11).
140
8 U.S.C. §1227(a)(2)(A)(i), INA §237(a)(2)(A)(i).
141
See discussion, supra, regarding the definition of "admission."

19
made an admission, as defined under the statute, in the last five years, he/she is not deportable,
even though convicted of a crime of moral turpitude. Note that this deportation ground applies
even if a non-citizen receives a sentence of less than one year, if he or she could have received a
sentence of one year or more.

A non-citizen who has been convicted at any time of two crimes of moral turpitude, not
arising out of a single scheme of criminal misconduct, is deportable.142 This provision does not
require a minimum potential or actual sentence. In addition, it is not linked to the last admission
to the U.S. “Single scheme” has been defined narrowly by the Board of Immigration Appeals,
although federal court decisions are slightly more favorable in finding that multiple crimes are
not part of a single scheme.143

2. Aggravated felonies

A non-citizen convicted of an aggravated felony after admission is deportable.144


Because the statute requires that the offense be committed after admission, there is no
comparable aggravated felony ground of inadmissibility. A person who has never been admitted
cannot be charged with deportability as an aggravated felon, although conviction for an
aggravated felony has other severe consequences in relation to, for example, reentry after
deportation. Many criminal offenses encompass other deportation grounds, in addition to the
aggravated felony charge.

IIRAIRA greatly expanded the crimes that are classified as aggravated felonies. The term
“aggravated felony” is a misnomer because the definition includes some misdemeanors and
many offenses that are not considered “aggravated” under state law. State felony simple
possession drug convictions are no longer classified as aggravated felonies because they are
misdemeanors under federal law.145 In the 5th Circuit, a second offense for drug possession is
considered an aggravated felony regardless of whether the non-citizen was convicted under a
state recidivist statute.146 All aggravated felonies require a conviction, although deferred
adjudication under Texas law is considered a conviction for immigration purposes.147 Some
offenses are included in the definition of aggravated felony regardless of the sentence imposed
such as delivery of a controlled substance and sexual abuse of a minor. Other aggravated
felonies, such as theft and crimes of violence, require a one-year sentence to incarceration,
regardless of the length of suspension of the sentence. Crimes such as fraud and money
laundering are based on the amount of money involved. It is very important to review the
aggravated felony definitions carefully to respond to this charge of deportation.

3. High speed flight

142
8 U.S.C. §1227(a)(2)(A)(ii), INA §237(a)(2)(A)(ii).
143
Compare Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992) with Okoro v. INS, 125 F.3d 920, 926 (5th Cir. 1997).
144
8 U.S.C. §1227(a)(2)(iii), INA § 237(a)(2)(iii); 8 U.S.C. §1101(a)(43), INA §101(a)(43).
145
Lopez v. Gonzales, 549 U.S. 47 (2006).
146
Matter of Carachurri-Rosendo, 24 I&N Dec. 382 (BIA 2007); U.S. v. Cepeda-Rios, 530 F.3d 333 (5th Cir. 2008)
147
8 U.S.C. §1101(a)(43) and (48), INA §101(a)(43) and (48).

20
A non-citizen who is convicted under federal law of high speed flight from an
immigration checkpoint is deportable.148

4. Drug convictions

A non-citizen who is convicted of a crime relating to a controlled substance as defined


under federal law, other than 30 grams or less of marijuana, is deportable.149 The drug must be
one encompassed by federal law. This provision includes state drug offenses and attempts and
conspiracy to commit such offenses. Unlike the inadmissibility ground, a conviction is required.

5. Drug abusers and addicts

See, discussion of drug abuse and addiction previously discussed as grounds of


inadmissibility. This provision requires the abuse or addiction to have occurred after
admission.150

6. Firearms offenses

A non-citizen is deportable for a violation of any law relating to purchasing, selling, or


possessing a firearm as defined under the federal statute, committed after admission.151 The
Texas unlawfully carrying a weapon statute is broader than the federal statute and includes
weapons not included under the federal statute. If it is not clear from the record of conviction that
the weapon was encompassed under the federal definition, deportability cannot be established. A
conviction for trafficking in firearms and other weapons offenses related to federal crimes is an
aggravated felony as well.

7. Miscellaneous crimes

A non-citizen convicted of offenses under federal statutes relating to espionage, sabotage,


and other listed crimes is deportable.152

8. Domestic violence crimes, stalking, violation of a protective order and


crimes against children

A non-citizen who after admission is convicted, after September 30, 1996, of a crime of
domestic violence is deportable.153 “Crime of violence” is defined under 18 U.S.C. §16. A
“crime of violence” with a one year sentence is also an aggravated felony. Notably, the Fifth
Circuit held that family violence assault under Tex. Pen. Code §22.01 is not a crime of violence,
thus limiting deportation charges under this provision.154
148
8 U.S.C. §1227(a)(2)(A)(iv), INA §1227(a)(2)(A)(iv).
149
8 U.S.C. §1227(a)(2)(B), INA §237(a)(2)(B). Controlled substances are defined under 21 U.S.C. §802.
150
8 U.S.C. §1227(a)(2)(B)(ii), INA §237(a)(2)(B)(ii).
151
8 U.S.C. §1227(a)(2)(C), INA §237(a)(2)(C).
152
8 U.S.C. §1229(a)(2)(D), INA §237(a)(2)(D).
153
8 U.S.C. §1229(a)(2)(E)(i), INA §237(a)(2)(E)(i).
154
U.S. v. Villegas-Hernandez, 468 F.3d 874 (5th Cir. 2006).

21
The definition of a domestic crime of violence includes offenses against a current or
former spouse, an individual with whom the person shares a child, an individual with whom the
person cohabits or has cohabitated as a spouse, an individual similarly situated as a spouse under
state family violence laws or any other individual protected under the domestic or family
violence laws of the jurisdiction.155

Crimes of child abuse, child neglect, child abandonment and stalking are also deportable
offenses under this provision. The term “crime of child abuse” means any offense involving an
intentional, knowing, reckless, or criminally negligent act or omission that constitutes
maltreatment of a person under 18 years old or that impairs such a person’s physical or mental
well-being, including sexual abuse or exploitation.156

A non-citizen who violates a protective order issued is deportable if the court determines
that he or she has engaged in conduct that violates that portion of the protective order designed to
protect against credible threats of violence, repeated harassment or bodily injury.157 Based on the
plain language of the statute, it is the domestic or state court, not the immigration court, that must
make the finding that the violation of the protective order involved the portions related to
protection against credible threats of violence, repeated harassment or bodily injury.

There is a limited waiver of this ground of deportation for victims of domestic


violence.158

C. Failure to register and false documents

1. Change of address

A non-citizen who fails to report his or her change of address to the DHS within ten days
of such change is deportable. This provision had not been enforced for many years. 159 However,
in the aftermath of September 11, the Attorney General has used this deportation ground
selectively.

2. False documents

Non-citizens who have been convicted under 18 U.S.C. §1546, relating to fraud and
misuse of visas, and other miscellaneous crimes, are deportable.160

3. Document fraud

155
Id.
156
Matter of Velazquez-Herrera, 24 I&N Dec. 503 (BIA 2008).
157
8 U.S.C. §1229(a)(2)(E)(ii), INA §237(a)(2)(E)(ii).
158
8 U.S.C. §1229(a)(7), INA §237(a)(7).
159
8 U.S.C. §1227(a)(3), INA §237(a)(3).
160
8 U.S.C. §1227(a)(3)(B), INA §212 (a)(3)(B).

22
This provision is identical to the inadmissibility ground based on a final order of
document fraud.161 The same waiver also exists.

4. False claim to U.S. citizenship

This provision is identical to the ground of inadmissibility previously discussed.162 It


applies only to false claims to U.S. citizenship made after September 30, 1996, the date of
enactment of IIRAIRA. The same limited exception is available for persons who obtained
permanent residence before age 16, whose parents were citizens, and who reasonably believed he
or she was a citizen.

C. Security Grounds—8 U.S.C. §1227(a)(4)

The security, foreign policy and Nazi persecution deportation grounds are similar to the
inadmissibility provisions.

D. Public Charge—8 U.S.C. §1227(a)(5)

A non-citizen who within five years of the date of entry becomes a public charge for
reasons not affirmatively shown to have arisen since entry is deportable.163 Under IIRAIRA,
most non-citizens who entered after the passage of the new law are barred from receipt of means-
tested benefits for five years after immigrating.

E. Unlawful Voters—8 U.S.C. §1227(a)(6)

This ground of deportability is identical to the ground of inadmissibility for unlawful


voting.

161
8 U.S.C. §1227(a)(3)(C), INA §237(a)(3)(C).
162
8 U.S.C. §1227(a)(3)(D)(i), INA §237(a)(3)(D)(i).
163
Note that this is another section of the Act in which the term "entry" was not changed to "admission."

23
Grounds of Inadmissibility &
Deportability and Challenges in
Removal Proceedings
Lee Teran

Inadmissibility vs. Deportability


„ INA §212(a) „ INA §237(a)
‰ Applicants for admission at
port of entry ‰ Non citizens admitted,
Non-citizens
‰ Applicants for visa, including permanent
adjustment of status residents, non-
‰ Legal residents returning immigrants
from abroad under INA ‰ Grounds of
§101(a)(13)(C)
inadmissibility included
‰ Burden or proof, INA
§240(c)(2) ‰ Burden of proof, INA
„ Applicant has burden to §240(c)(3)
§ ( )( )
prove “clearly and beyond „ DHS has burden to
doubt entitled to be
admitted” prove deportability by
“clear and convincing
evidence”

1
Returning Legal Resident:
Exceptions Under INA §101(a)(13)(C)
„ (i) abandoned status „ (v) has committed an
„ (ii) absent from U
U.S.S offense listed in INA
continuously for 180 §212(a)(2) (crimes of
days moral turpitude,
„ (iii) engaged in illegal multiple crimes, drug
activity after departure offenses, prostitution,
„ (iv) departed U.S. while trafficking in persons)
under legal process „ (vi) has never been
(removal, extradition)
admitted or is
attempting illegal entry

Convictions

„ Defined at INA §101(a)(48)(A)


‰ Plea of g
guilt, nolo, or admission of facts; and p
punishment,
penalty or restraint on liberty
‰ Texas deferred adjudication
„ Juvenile delinquency
„ Pre-trial diversion
„ Vacated convictions
‰ Matter of Chavez, 24 I&N Dec. 272 (BIA 2007)
„ Pardons
‰ INA §237(a)(2)(A)(5)
„ Pardons for crimes of moral turpitude, aggravated felonies,
high speed flight

2
Sentences

„ Defined at INA §101(a)(48)(B)


‰ Regardless
R dl off suspension
i off imposition
i iti or
execution
„ Sentence to term of imprisonment
‰ Texas deferred adjudication
„ Sentence which may be imposed

Rules of Statutory Construction

„ Language of the statute, not the conduct of


the respondent
‰ Categorical and modified categorical approach
‰ Application to elements considered outside the
qualifying conviction
„ Generic and model crimes
„ “Described in”, “defined in”, and “related to”

3
Categories of Inadmissibility
INA §212(a)
„ (1) Health „ (7) Documentation
„ (2) Crimes „ (8) Ineligible for
„ (3) Security citizenship
„ (4) Public charge „ (9) Non-citizens
„ (5) Labor certification previously removed
„ (6) Illegal entrants and „ (10) Miscellaneous
immigration violators grounds

Summary of Common Crime-Related


Grounds of Inadmissibility
„ Crimes of moral turpitude
„ Two or more convictions for any offenses
with aggregated 5 year sentences to
confinement
„ Controlled substances offenses
„ Prostitution and commercialized vice
„ Federal immigration enforcement crimes

4
Crimes of Moral Turpitude

„ INA §212(a)(2)(A)(i)(I)
‰ Conviction
C i ti off or admission
d i i tto ““a crime
i off morall
turpitude…or any attempt to conspiracy to commit
such a crime”
„ INA §212(a)(2)(A)(ii)
‰ Exceptions
„ Petty
P tt offense
ff
„ Crime committed by alien under 18

Controlled Substances Offenses

„ INA §212(a)(2)(A)(i)(II)
‰ Conviction of or admission to “aa violation of (or a
conspiracy or attempt to violate) any law or
regulation…relating to a controlled substance (as
defined in section 802 of Title 21)”
„ INA §212(a)(2)(C)(i)
‰ Non-citizen who the government “knows or has
reason to
t b
believe
li iis or h
has b
been an illi
illicit
it ttrafficker
ffi k
in any controlled substance or any listed chemical
(as defined in section 802 of title 21)”

5
Multiple Convictions

„ INA §212(a)(2)(B)
‰ Two or more convictions
T i ti ““regardless
dl whether
h th ththe
offenses involved moral turpitude, for which the
aggregate sentences to confinement were 5 years
or more”

Non-Citizens Previously Removed

„ INA §212(a)(9)(A)
‰ Non citizen previously removed
Non-citizen
„ INA §212(a)(9)(B)
‰ Unlawfully present
„ More than 180 days
„ One year or more
„ INA §212(a)(9)(C)
‰ Unlawfully present aggregate of more than 1 year, or
ordered removed, and
‰ Enters or attempts to reenter the U.S. without being
admitted

6
Categories of Deportability-
INA §237(a)
„ (1) Inadmissibility at time of admission and
violation of status
„ (2) Criminal offenses
„ (3) Failure to register and falsification of
documents
„ (4) Security
„ (5) Public
P bli charge
h
„ (6) Unlawful voters

Summary of Crime-Related Grounds of


Deportability
„ Crimes of moral „ Federal immigration
turpitude enforcement
‰ 1 offence within 5 years „ Domestic violence,
‰ 2 or more, not of a single stalking, and child
scheme, at any time abuse, neglect &
„ Controlled substances abandonment
„ Weapons „ Aggravated
gg felonies
‰ Firearms, destructive ‰ Defined at INA
devices §101(a)(43)(A)-(U)

7
Crimes of Moral Turpitude

„ INA §237(a)(2)(A)(i)
‰ Conviction
C i ti off crime
i off morall tturpitude,
it d ffor which
hi h 1
year of sentence may be imposed and which was
committed within 5 years of admission
„ INA §237(a)(2)(A)(ii)
‰ Convictions at any time of 2 or more crimes of
moral turpitude
turpitude, not arising out of a single scheme
of criminal misconduct

Aggravated Felonies
„ INA §237(a)(2)(iii)
‰ Conviction at any time after admission of an aggravated felony,
as defined at INA §101(a)(43)
„ INA §101(a)(43)(A)-(U) includes:
‰ Murder, rape, sexual abuse of minor

‰ Drug trafficking

‰ Weapons trafficking

‰ Theft or burglary with one year sentence

‰ Crimes of violence with one year sentence

‰ Fraud or deceit with loss in excess of $10,000


,
‰ Commercial bribery, forgery with a one year sentence

‰ Obstruction of justice, perjury, bribery of witness with one year


sentence

8
Controlled Substances

„ INA §237(a)(2)(B)(i)
‰ Convictions
C i ti off a violation
i l ti off llaw relating
l ti tto
controlled substances, other than a single offense
involving possession of 30 grams or less of
marijuana
„ INA §237(a)(2)(B)(ii)
‰ A non-citizen
non citizen who at any time after admission has
been a drug addict or abuser

Firearms Offenses

„ INA §237(a)(2)(C)
‰ Conviction
C i ti off any llaw off “purchasing,
“ h i selling,
lli
offering for sale, exchanging, using, owning,
possessing, or carrying…any weapon…which is a
firearm or destructive device”

9
Domestic Violence, Stalking, Child Abuse

„ INA §237(a)(2)(E)(i)
‰ Conviction of crime of violence against person
protected under family violence laws
‰ Conviction of stalking
‰ Conviction of child abuse, neglect or
abandonment
„ INA §237(a)(2)(E)(ii)
§ ( )( )( )( )
‰ Violation of protective order that involves
“protection against credible threats of violence,
repeated harassment, or bodily injury”

Aiding and Abetting Illegal Entry

„ INA §237(a)(1)(E)
‰ Any alien
A li whoh ((prior
i tto the
th date
d t off entry,
t att the
th
time of any entry, or within 5 years of the date of
any entry) knowingly has encouraged, induced,
assisted, abetted, or aided any other alien to enter
or to try to enter the United States in violation of
law

10
Department of Homeland Security Notice to Appear

In removal proceedings under section 240 of the Immigration and Nationality Act
File A 00 000 000
In the Matter of:
Respondent: Juan Garcia currently residing at:

c/o ICE, 8940 Fourwinds, San Antonio TX 78239


(Number, street, state and ZIP code) (Area code and phone number)

□ 1. You are an arriving alien.


□ 2. You are an alien present in the United States who has not been admitted or paroled.
x 3. You have been admitted to the United States, but are deportable for the following reasons stated below.

The Service alleges that:


1. You are not a citizen or national of the United States;
2. You are a native of Mexico and a citizen of Mexico;
3. You were admitted to the United States at San Ysidro, CA as a lawful permanent resident on or about 12/1/1990;
4. On August 31, 2005, you were convicted of the offense of Texas Penal Code §46.02 Unlawful Carrying of a Weapon in the 33rd County
Court of Law in Kingsille, Texas.

On the basis of the forgoing, it is charged that you are subject to removal from the United States pursuant to the following provision(s) of law:

Section 237(a)(2)(C) of the Immigration and Nationality Act (Act), as amended, in that, after admission you were convicted of an offense under
any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing or carrying any weapon, part or accessory,
which is a firearm or destructive device (as defined in section 921(a)of Title 18) in violation of law.

YOU ARE ORDERED to appear before an immigration judge of the United States Department of Justice at
800 Dolorosa St., San Antonio, Texas 78207
(Complete Address of Immigration Court Scheduling Room Number, if any)
on To Be Set at To Be Set to show why you should not be removed from the United States based on the charge(s) set forth above.
(Date) (Time)

___signed________________________________________
Roger W. San Martin, Agent in Charge
San Antonio, TX

Date: 9 /10/05
See reverse for important information Form I-862 (Rev. 4-1-97)

Texas Penal Code, §46.02


Unlawful Carrying of a Weapon
„ (a) A person commits an offense if the person
intentionally knowingly,
intentionally, knowingly or recklessly carries
on or about his or her person a handgun,
illegal knife, or club

11
Texas Penal Code, §22.01- Assault

„ (a) A person commits an offense if the


person:
‰ (1) Intentionally, knowingly, or recklessly causes
bodily injury to another, including the person’s
spouse
‰ (2) Intentionally or knowingly threatens another
with imminent bodily injury, including the person’s
spouse
‰ (3) Intentionally or knowingly causes physical
contact with another [with knowledge or belief
that] that contact [is] offensive or provocative.

Cases of Assault

„ Crime of Moral Turpitude


‰ Matter of Sejas,
Sejas 24 I&N Dec.
Dec 236 (BIA 2007
‰ Matter of Solon, 24 I&N Dec. 239 (BIA 2007)
„ Crime of Violence
‰ U.S. v. Villegas-Hernandez, 468 F.3d 874 (5th Cir. 2006)
‰ Gonzalez-Garcia v. Gonzales, 166 Fed. Appx. 740 (5th Cir.
2006)
„ Child Abuse
‰ Matter of Velasquez-Herrera, 24 I&N Dec. 503 (BIA 2008)

12
Texas Penal Code, §32.45-
Misapplication of Fiduciary Funds
„ (b) A person commits an offense if he
intentionally knowingly,
intentionally, knowingly or recklessly
misapplies property he holds as a
fiduciary…in a manner that involves
substantial risk of loss to the owner of the
property…

INA §101(a)(43)(M)

„ An offense that
‰ (i) iinvolves
l ffraud
d or deceit
d it iin which
hi h th
the lloss tto th
the
victim or victims exceeds $10,000
„ Omari v. Gonzales, 419 F.3d 303 (5th Cir.
2005)
„ Martinez v. Mukasey, 508 F.3d 255 (5th Cir.
2007)
„ Matter of Babaisakov, 24 I&N Dec. 306 (BIA
2007)

13
TAB 06
Strategic Planning for Family Cases
Family Immigration Cases
Strategic
g Planning:
g
Putting the Puzzle Together For Your Clients

Liz Cedillo-Pereira Nancy T. Shivers


mecp@cedillolaw.com ntshivers@shiverslaw.com
www.cpcimmigrationlaw.com
(214)981-9442

Objectives

„ Overview of Family Immigration Process

„ Formulating Strategies, Options and Goals

„ Ethical Considerations Brief

1
Immigration Process

„ Case Assessment - Consultation


‰ Obtain Case Relevant Information
„ Who is the Petitioner/Client?
‰ Immigration Status
„ Beneficiaries?
‰ Immigration Status
„ Relationship Between Parties
„ Parties Place of Residence
„ Immigration History
‰ Entries and Departures
„ Criminal History
„ Petitioner Income

Immigration Process

„ Case Assessment – Consultation

‰ Require Personal Consultations


‰ Teleconference With Out of Country Clients
‰ Review Intake and Confirm Accuracy
‰ Prescription
„ Apply the law to the fact of the case
‰ Provide Case Recommendation and Explain
Timelines

2
Immigration Process

„ Case Assessment – Clients Goals

‰ “Bring my mom and dad to the US.”

‰ “Help a nephew come to school.”

‰ “Unite with my fiancé as soon as possible.”

‰ “Help my wife legalize.”

‰ “Keep my husband from being deported.”

Immigration Process

„ Case Assessment – Analysis

‰ Petitioner and Beneficiary

‰ Clients Eligibility To Proceed


„ Grounds of Inadmissibility
‰ Facts of Each Element
„ Exception Availability
„ Waiver Availability

3
Immigration Process
„ Petition Process – Terminology

‰ Immediate Relatives of U.S.C. - spouse, parent, minor children


‰ Family Preferences- those in the preference system bound by the
Visa Bulletin under an annual quota
‰ Priority Date – The date the preference petition is filed
‰ Petitioner – U.S.C. or LPR
‰ Beneficiary – applicant seeking to immigrate
‰ Parent – INA §101(b)(2); may be stepparent, adoptive parent and
child out of wedlock
‰ Sibling – one parent in common
‰ Spouse
p – valid marriage
g under law
‰ Child – INA §101(b)(1) and must be unmarried and under 21 (see
CSPA), daughter or son – child of any age.
‰ Stepchild – under 18 when parents married
‰ Adopted Child – adopted before 16 and legal custody and reside for
2 years
‰ Orphans – under 16 with other steps

Immigration Process

„ Petition Process To Seek Residency

‰ United States Citizens and Legal Permanent


Residents May Petition Family Members to
Immigrate to the United States.
‰ 8 INA § 201, 203(a) 2008
„ Petition Difference For Immediate Family and
Non-Immediate family members can be ten
years or more in processing times.

4
Immigration Process
„ U.S.C. May Petition Spouse,
Parents, Children As Spouse

“Immediate Relati
Relatives.”
es ”

„ 8 INA 201(b)(2)(A)(i)2008
USC

Parent Child

Immigration Process
„ U.S.C. May Petition Spouse
adult sons and
daughters (married and
unmarried), and Brother Child

siblings. USC

„ 8 INA § 203(a)(1),
(a)(3), (a)(4), 2008
Sister Parent

5
Immigration Process

„ Petition Process for Legal


Spouse
Permanent Resident
(LPR)
„ LPR may petition spouse,
unmarried children, adult LPR

sons and daughters who


Adult
are unmarried. Child
Child

„ 8 INA 203(a)(2)(A) and


(B), 2008.

Immigration Process
„ Petition Process – Example
‰ USC Petitions 20 Years Of Age Daughter
„ May complete the process in 1.5 years;
‰ USC Petitions 21 Years of Age Daughter
„ May wait 10 years or more depending on numerical limitations.

Family All China India Mexico Phillipp.

1st

2nd

3rd

4th

6
Immigration Process

„ Case Assessment – Analysis

‰ Petitioner and Beneficiary☺

‰ Clients Eligibility To Proceed


„ Grounds of Inadmissibility
‰ Facts of Each Element
„ Exception Availability
„ Waiver

Immigration Process

„ Case Assessment – Analysis – Eligibility to Proceed


‰ Grounds of Inadmissibility
‰ Health-related
‰ Criminal
‰ National Security
‰ Public Charge
‰ Labor protection
‰ Fraud or misrepresentation
‰ False claim of citizenship
‰ D
Documentationi requirements
i
‰ Military service in the U.S.
‰ Prior removals or unlawful entries or unlawful presence in the U.S.
‰ Other
ƒ See 8 INA § 212

7
Immigration Process
„ Case Assessment – Analysis – Eligibility to Proceed
‰ Grounds of Inadmissibility
‰ Exception Availability
ƒ Criminal – Petty Offense, Juvenile Exception
ƒ False claim of citizenship – youth/ignorance exception
ƒ Smugglers – Special Rule for Family Reunification
ƒ Unlawful Presence – Minors, Asylees, Family Unity, Battered Women
and Children and Tolling for Good Cause – 212(a)(9)(B)(iv)
If no Exception, Waiver Availability – Form I-601
ƒ Health-related – 212(g)
ƒ Misrepresentation – 212(i)
ƒ Criminal – 212(h)
( )
ƒ Smugglers – 212(d)
ƒ Final 274C Order – 212(d)
ƒ Unlawful Presence – 212(a)(9)B)(v)
‰ If no Waiver, other
ƒ Prior Removal - Application for Permission to Reapply for Admission
after Deportation or Removal – 212(a)(9)(A)(i) – Form I-212

Immigration Process

„ Assessing Grounds of Inadmissibility


„ Example: False Claim to U
U.S.
S Citizenship
‰ Claiming to be born in the U.S.
‰ Citizen or national on I-9
‰ Social Security Number application
„ §212(a)(6)(C)(ii)
‰ Any alien who falsely represents, or has falsely
represented, himself or herself to a be a citizen of the
United States for any purpose or benefit under this Act
(including 274A) or any other Federal or State law is
inadmissible.
‰ Applicable for acts on or after Sept. 30, 1996

8
Immigration Process

„ Exception Availability
‰ If natural parent of the alien is/was a citizen,
citizen the alien
resided in the U.S. prior to attaining the age of 16 and the
alien reasonably believed that he of she was a citizen

„ Waiver Availability
„ None after September 30, 1996
„ S Th
See Theodros
d v. G
Gonzales,
l (5th Cir.
Ci JJune 25
25, 2007)(h
2007)(holding
ldi a
person who makes a false claim to U.S. citizenship in order to
gain private sector employment is inadmissible under INA
§212(a)(6)(c)(ii)(I) and removable under INA §237(a)(3)(D(i).

Immigration Process
„ Case Assessment – Analysis
‰ Adjustment of Status v. Consular Processing
„ Visa Processing At Consular Post
‰ Outside the U.S.
‰ Ineligible to Adjust Status
‰ Preferred Route
‰ Adjustment of Status At US CIS
„ Under Section 245 of the INA
‰ In the U.S.
‰ Judicial Review
„ Newly Added Vaccination Requirements – Effective
August 1, 2008

9
Immigration Process
„ Case Assessment – Analysis
‰ Consular Processing -Authority of the Secretary of State

„ Approved I-130 petition ->

„ N ti
National
l Vi
Visa C
Center
t ->Fee
F Bills/Choice
Bill /Ch i off Add
Address and
dAAgentt -> sends
d outt
DS 230 Part I and Part II (Instruction Package for Immigrant Visa Applicants)
=>Pre-screening ->

„ Consular Appointment at Consular post designated on petition

„ Consular Interview Preparation


‰ Appear in person

‰ Medical Exam

‰ Original Documents Requested

‰ Take waiver if necessary to be submitted to Dept. of Homeland Security

„ No judicial review
‰ Visa Office Advisory Opinions Division to Review Legal Issues

Immigration Process

„ Adjustment of Status -Authority under


Immigration and Nationality Act
„ 245(a), (c) or
„ 245(i)

10
Immigration Process

„ Case Assessment – Analysis


‰ S ti 245(a)
Section 245( ) P
Process R
Requirements:
i t
„ Inspected and Admitted or Paroled
„ Admissible
„ Lawfully in the U.S.,
‰ except for immediate relatives, battered spouses, battered
children, and special immigrants
„ Visa number must be immediately available at time of
filing.
ƒ 8 CFR Section 245.2(a)(5)(ii)

Immigration Process
„ Case Assessment – Analysis
‰ Section 245(c) – Ineligible for Adjustment
„ Worked without authorization (except IR)
„ Not in lawful immigration status (except IR)
„ Not admitted or paroled following inspection
„ Failed to maintain continuously legal status except if it was
through no fault of his own or for technical reasons
„ Crewman, Transit without Visa
„ A, G, E (but can waive privileges and immunities)
„ Js not meeting foreign residence requirement
„ Deportable under security and related grounds at 237(a)(4)(B)
„ Admitted as a K1 but did not marry the K1 Petitioner
„ Admitted under Visa Waiver Program (except IR)
„ Already a conditional permanent resident

11
Immigration Process
„ Case Assessment – Analysis
‰ Section 245(i) – Ineligible But Eligible for Adjustment
„ W i
Waives section
ti 245(a)
245( ) and
d ((c))
‰ Allows applicant to adjust even if:
„ Entry Without Inspection
„ Overstayed
„ Worked without Authorization
‰ Must be beneficiary of a labor cert or petition (including I-
360) under section 204 filed on or before April 3030, 2001
‰ If Filed Between 1/14/98 And 4/30/01 Must Show Physical
Presence on 12/21/00 For Principal
‰ Fee of $1000.00 (unless child under 17 or Family Unity)

Immigration Process

„ Hypothetical Case – Status Adjustment


‰ Oscar is
O i from
f England
E l d and
d came tto th
the US on th
the
visa waiver program.

‰ He meets and falls in love with Mary who was


born in the USC.

‰ Does he have to consular process?

12
Immigration Process
„ Case Assessment – Analysis - Removal Proceedings
‰ Cases denied by US CIS referred to Immigration Court reviewed
by Immigration Judge (IJ)
‰ Applicant may seek to adjust in Section
S 240
2 0 proceedings

„ IJ has no jurisdiction over I-130 or I-140 – US CIS must


adjudicate (must seek continuance)

‰ Benslimane v. Gonzales, 430 F.3rd 828 (7th Cir. 2005)(IJ made


legal error in denying continuance where respondent filed I-130
and I-485 but had not filed I-485 with court).
‰ Matter of Villarreal-Zuniga, 23 I&N Dec. 886 (BIA 2006)
(A/S cannot be based on an approved petition that has
already been used by the beneficiary to obtain status.
Here, son tried to re-use visa petition filed by mom after
being placed in removal proceedings).

Immigration Process

„ Case Assessment – Analysis - Removal


Proceedings

„ Must be eligible to adjust under 245(a)/(c) 245(i)


‰ “arriving aliens” may adjust status before US CIS and may
seek to adjust status before IJ if they are returning on an
advance parole, US CIS denied their A/S, and they are
placed
l d iin removall proceedings.
di
„ 8 C.F.R. §§245.2(a)(1), 245.2(a)(5)(ii), 1240.11(a)(1),
1245.2(a)(5)(ii).

13
Strategies, Options and Goals
„ Case Strategies
‰ Family Relationships Derive Benefits in Preference System

„ Spouse/children get same priority date as Beneficiary

ƒ 22 C.F.R. §42.53(a)(2008).
„ Preference Family Member Only

„ Separate I-130 Is Not Required

„ Can immigrate with spouse or parent

„ “Accompanying” or “following to join” principal beneficiary

„ Derivatives
‰ Children of 1st preference beneficiaries

‰ Children of spouse of LPR(2nd)

‰ Children of sons and daughters of LPR (2nd)

‰ Spouses and children of sons and daughters of U.S.C (3rd


preference)
‰ Spouse and children of USC siblings (4th preference)

Strategies, Options and Goals


„ Case Strategies – Cross Chargeability
‰ Rule: Immigrant visas are charged based on the quota for the
beneficiary’s country of birth
‰ 22 C
C.F.R.
F R §42.12
§42 12 (2008)
(2008).
‰ Evaluate if an accompanying family member can speed up the
process

„ Exceptions:

1) Child may be charged to foreign state of either parent;


2) Spouse may be charged to foreign state of accompanying spouse;
3) USC who lost citizenship may be charged to foreign state of current
citizenship or country of last residence;
4) Alien born in location whether neither parent was born or had their
residence – charge to foreign state of either parent

14
Strategies, Options and Goals

„ Hypothetical Case
‰ JJuan, a citizen
iti off M
Mexico,
i was petitioned
titi dbby hi
his
brother, Eric, a U.S.C. Juan is married to Lisa
who is from Italy.

‰ Juan’s application for permanent visa be charged


to quota for Italy
Italy.

Strategies, Options and Goals


„ Grandfathering
‰ Those who have filed petitions on or before April 30, 2001
may use that petition to adjust status based on a petition
submitted after that date as along as the ere was an
application/petition filed on or before 4/30/01 and was
“Approvable when filed”

„ Approvable When Filed


‰ As of the date of the filing, the petition or Labor Certification:
„ properly filed;
„ meritorious in fact;
„ nonfrivoulous.

‰ 8 CFR section 245.10(a)(3).

15
Strategies, Options and Goals

„ Hypothetical Case - Grandfathering

‰ Recent high School graduate was arrested by ICE during a


workplace raid. His dad’s brother, a USC, filed an I-130 for
HS graduate in 1997.

‰ What can be done?

„ A. Nothing
„ B. Take a deport order.
„ C. Marry his USC girlfriend and adjust via grandfathering;
„ D. Ask Member of Congress to file a private bill.

Strategies, Options and Goals


„ Child Status Protection Act (CSPA) – 2002
‰ Allows Children 21 Years of Age to Retain “Child Status”

„ Immediate Relatives:
‰ Child of a USC remained IR if I-130 was filed while child was under 21
„ Matter of Avila-Perez, 24 I&N Dec. 78 (BIA 2007). BIA found that CSPA
protects an age-out where the visa petition was approved before CSPA’s
enactment because he was under age 21 when the visa petition was
filed.
‰ Child whose LPR parent naturalizes becomes IR if under 21 when parent
becomes USNC
‰ Child of USC remains IR if under 21 when child divorces

„ 2B Beneficiaries and Derivatives


‰ Use special calculation to determine whether child remains a child
‰ Biological age – time I-130 was processing
‰ Must apply within 1 year of visa availability

16
Strategies, Options and Goals

„ Hypothetical Case
‰ Cami s Aunt a USC Petitioned Father in 1993
Cami’s
‰ Cami age 10, was a 4th preference derivative
‰ On March 1, 2005, at the time the 1993 I-130 priority date
visa became available, Cami was 21 years plus 254 days.
‰ At the immigrant visa interview in Brazil, her parents were
granted permanent residency.
‰ Cami’s
Cami s I-130
I 130 was pending only 15 days prior to approval
approval.
‰ Cami was denied because she was deemed to have "aged-
out“.

Strategies, Options and Goals

„ Notwithstanding the initial denial in 2005,


‰ Cami is accorded the original priority date of February 23
23,
1993 in that she remains dad’s unmarried daughter and
she was a derivative beneficiary on the original I-130 filed
by her aunt.
‰ Entitled to retain the February 23, 1993 priority date that
applied to the original 4th preference petition and therefore
a visa number under the second preference category is
immediately available to her.
See Matter of Garcia, Maria T, A79-001-587, June 16, 2006.

17
Strategies, Options and Goals
„ Violence Against Women Act (VAWA)
‰ Battered Spouses or Children – I-360
„ 8 INA §§204(a)(1)(S)(iii)-(iv)

Other Options
‰ Widow(er)s – I-360

„ 8 C.F.R. §204.2(a)(4)(2008).
‰ Spouse, Parent,
ae ,o or C
Child
doof Member
e be oof Armed
ed Forces
o ces
Killed in Combat
„ 8 INA §201(b)(2)(A)(i)(2008).
‰ Fiancée/Fiancé – I-129(f)

Strategies, Options and Goals

„ VAWA
„ File I-360

„ All VAWA self-petitioners should be able to adjust status under


INA §245(a)
„ Requirements:
‰ Applicant applies for adjustment
‰ Visa immediately available
‰ Applicant eligible and no inadmissible under INA Section 212
‰ Self petitioner not required to show a “substantial
Self-petitioner substantial connection”
connection
between the qualifying battery or extreme cruelty and VAWA self-
petitioner’s unlawful entry. Previously denied on this grounds may
file a motion to reopen/reconsider.
ƒ Aytes Memo, Adjustment of status for VAWA self-petitioner
who is present without inspection, April 11, 2008

18
Strategies, Options and Goals

„ Conversion and PD Retention


‰ Life circumstances
Lif i t off th
the P
Petitioner
titi or th
the
beneficiary may impact the immigration case
„ Beneficiary marries
„ Beneficiary divorces
„ Beneficiary turns 21
„ Petitioner becomes a U.S.C
„ Petitioner dies

Strategies, Options and Goals

„ Beneficiaries Marries
‰ Immediate Relative child Æ 3rd preference
„ PD is retained
‰ 1 Preference Æ 3rd preference
st

„ PD is retained
‰ 2nd preference = automatic revocation
„ 8 C.F.R. §205.1(a)
„ Beneficiar Divorces
Beneficiary Di orces
‰ Child/3rd Æ to Immediate Relative
‰ Son/daughter/21 & over Æ 1st
„ PD retained

19
Strategies, Options and Goals
„ Beneficiary Turns 21
‰ IRÆ 1st

‰ 2A Æ 2B
„ File new I-130 but accorded original PD
‰ But see Child Status Protection Act

„ Petitioner Becomes USC


‰ 2A child -> IR

‰ 2A spouse Æ IR

‰ 2B soson/daughter
/daug te Æ 1st p
preference
e e e ce
„ But may elect to remain in 2B

‰ Derivatives lose that status and need new I-130


„ PD retained

Strategies, Options and Goals


„ Life Change Hypothetical Case
‰ Monica
M i iis th
the d
daughter
ht off JJose an LPR who
h fil
filed
d
an I-130 for her.
„ Monica gets married? What happens?
„ Jose naturalizes?
„ Monica divorces?
„ Jose dies?

20
Ethical Considerations
„ Professional
‰ Stay Current With Law
„ 8 INA – Immigration
I i ti and dNNationality
ti lit Law
L Act
A t
„ 8 CFR – Code of Federal Regulations – Aliens and Nationality
„ 22 CFR – Code of Federal Regulations – Department of State
„ 2 CFR – Code of Federal Regulations – Department of Labor
„ Kurzban’s Immigration Law Sourcebook, 10th Edition
„ Case Law
„ AILA Infonet
‰ Stay abreast of changes, prospective

Ethical Considerations
„ Business
‰ Volume-Based
‰ Case Management
‰ Case Life Cycles
‰ Diverse client base
‰ High stress

21
Ethical Considerations

„ Client Relationship
‰ Dual Clients
‰ Explain Fees (US CIS and Attorney)
‰ Communicate when an Attorney/Client Relationship
Exists/Parameters of Relationship
‰ Do not hesitate to pass on a case for ethical reasons
‰ Review Circumstance/story
‰ Explain Law in Purposeful Terms
‰ Be clear about Firm’s Policies and Procedures
‰ Maintain contact with Client
‰ Celebrate with your Client

Conclusion

"There are no extra pieces in the universe.


Everyone is here because he or she has a place to fill, and
every piece must fit itself into the big jigsaw puzzle."
- Deepak Chopra

22
TAB 07
Immigration Rights
(NO MATERIALS FOR THIS SECTION)
TAB 08
A Primer on Foreign Adoption
The University of Texas School of Law

Presented:
32nd Annual Conference on Immigration and nationality Law

October 22-24, 2008


San Antonio, TX

Primer on Foreign Adoptions

Jodi Goodwin

Author contact information:


Jodi Goodwin
Law Office of Jodi Goodwin
1322 East Tyler Avenue
Harlingen, Texas 78550
jodigoodwin@sbcglobal.net
956-428-7212

Continuing Legal Education • 512-475-6700 • www.utcle.org


Primer on Foreign Adoptions

I. Introduction

Adopting a child can be the most exciting time in a new adoptive parent’s life. Throw in
the twists and turns of the complex United States immigration system and the adoption of
a foreign child can also become the most frustrating time in a new adoptive parent’s life.
The immigration laws of the United States contemplate two basic types of adoptions:
those for orphans and those for nonorphans. In addition to this distinction, the procedures
and requirements can vary depending on where the child is located, i.e. in the United
States or abroad, and whether or not the child being adopted is from a country party to the
Hague Convention.

This paper seeks to set forth in a primer fashion the various requirements and distinctions
for adopting children of foreign birth. Each adoption and the circumstances of each child
and each adoptive parent or parents can vary widely. As such this paper intends to be a
starting point in your journey navigating the labyrinth of the immigration laws as they
relate to adoptions.

II. The Types of Foreign Adoptions (or Adoption of Foreign Children)

In general, the immigration laws contemplate three types or categories of foreign


adoptions (or adoptions of foreign children): nonorphans, orphans, and Hague
Convention adoptions. The Immigration and Nationality Act (INA) sets for the
requirements for each of these categories at §§101(b)(1)(E), (F) and (G), respectively.

A. Adoptions (Nonorphans)

INA §101(b)(1)(E) sets for the requirements for an adopted child to be considered a
“child” for purposes of the immigration laws and reads:

(i) a child adopted while under the age of sixteen years if the child has been in
the legal custody of, and has resided with, the adopting parent or parents for at
least two years: Provided, That no natural parent of any such adopted child shall
thereafter, by virtue of such parentage, be accorded any right, privilege, or
status under this chapter; or (ii) subject to the same proviso as in clause (i), a
child who: (I) is a natural sibling of a child described in clause (i) or
subparagraph (F)(i); (II) was adopted by the adoptive parent or parents of the
sibling described in such clause or subparagraph; and (III) is otherwise
described in clause (i), except that the child was adopted while under the age of
18 years.

1
In practical terms, classification as a child under §101(b)(1)(E) is the provision
commonly used for private adoptions where the foreign born child is in the United States.
Such situations would include familial adoptions or adoptions of “older” children by
close friends or caretakers. In addition, the requirements of §101(b)(1)(E) can be used in
situations where the status as an orphan can not be proven.

1. Legal Custody and Residence

To qualify for classification as a child for immigration purposes, the adoptive parent must
have legal custody and have resided with the adoptive child for a period of two years
prior to the filing of a petition to classify the child as an immediate relative. The
regulations at 8 C.F.R. §204.2(d)(2)(vii)(c) specifically allow that the residency
requirement can be fulfilled before or after the adoption. However the legal custody
requirement is not as fluid. In order to show legal custody one must have either a final
adoption or some other form of custody award from the court. See 8 C.F.R.
§204.2(d)(2)(vii)(A).

2. Adoption Before 16 years of Age

A full and final adoption must take place prior to the child’s 16th birthday. It is not
sufficient to have filed a petition for adoption prior to the child’s birthday, but rather the
adoption process must be completed and final. As a practice note, where there is a time-
crunch, adoptions in many jurisdictions can be expedited including all state statutory
requirements prior to the final adjudication of a petition for adoption. However, if there
is thought of future immigration, practitioners must be mindful of the child’s 16th
birthday.

3. Special Rule for Siblings

An exception to the rule that an adoption must be final prior to the 16th birthday exists for
the natural siblings of individuals who are adopted while under the age of 16.
Specifically, a natural sibling of a child adopted while under the age of 16 may also be
considered a child for immigration purposes provided their adoption takes place prior to
their 18th birthday. Although the order in which the adoptions took place was an issue of
dispute, the Board of Immigration Appeals ruled in 2008 that it makes difference not
whether the under 18 or the under 16 year old child is adopted first. Matter of
Anifowoshe, 24 I. & N. Dec. 442 (BIA 2008).

4. No Benefits to Natural Parents or Siblings

A common set of facts in the immigration adoption arena is for a friend or relative or
caretaker to agree to adopt a child for the purpose of being able to provide an
immigration benefit to that child. However, in many circumstances the child maintains
his or her relationship with their natural parents and only the “parents” in legal terms is
changed for the immigration benefit. Just as in marriage petitions, the government will

2
seek to determine the bona fides of the adoptive relationship. In fact, the regulations at 8
C.F.R. §204.2(d)(2)(vii)(B) require that it is the adoptive parents burden to show they
maintain primary parental control of the adoptive child. In the same vein as combating
against adoption fraud, the statute specifically prohibits an adoptive child from seeking
immigration benefits for their natural parents or siblings where said adoptive child
received the immigration benefit of classification under §101(b)(1)(E).

5. Petition (I-130)

Unlike the other types of adoption processing, there is no pre-processing approval


required before one can petition for their adoptive child as an immigrant under
§101(b)(1)(E). In order to classify an adoptive child as a child for immigration purposes,
one must fill out and provide supporting documentation on Form I-130. The types of
documents generally required would include birth certificates, marriage certificates,
divorce decrees and full and final adoption decree. In addition to the documents listed
above, the adoptive parent must be prepared to show the adoptive child is residing with
the adoptive parent. Some documents helpful in making this showing of residency with
the adoptive parent include school records, medical records, affidavits from people who
know the child lives with the adoptive parent.

6. Special Entry Issues

In situations where an adopted child is petitioned for and is residing in the United States,
the child can be eligible for adjustment of status provided they otherwise meet the
requirements for adjustment under section 245 of the INA. It is very common for
children to have been brought to the United States as extremely young infants. For
example, a United States couple may identify a child for adoption along the border region
of the US and after the child is born bring the child to the United States from Mexico by
crossing through one of the land port of entries. The circumstances at entry can certainly
vary, but often the adults are questioned as to their citizenship d then perhaps asked if the
child is theirs. Based on the BIA’s precedent decision in Matter of Areguillin, 17 I. & N.
Dec. 308 (BIA 1980)1, the inspection and admission of the child where there was no
knowing false claim to United States citizenship is a lawful entry for purposes of §245
adjustment.2

Some practical considerations that practitioners should be aware of in filing adjustment


applications on behalf of adopted children brought into the United States at a very young
age are the ability to prove the entry and the possibility of prosecution of the individual or

1
The validity of Matter of Areguillin has recently been the subject of litigation and discussion. The Ninth
Circuit’s decision in Orozco v. Mukasey, 521 F. 3d 1068 (9th Cir. 2008) called into question the
precedential value of Areguillin given that it was a decision predating the current statutory definition of
“admission.” However, the Ninth Circuit vacated its decision in Orozco on October 20, 2008.
2
In the event the adjustment of status application is not approved, practitioners should be mindful that
children can immigrate via consular process without the need for a waiver of unlawful presence under
212(a)(9)(B) while they are under the age of 18. No unlawful presence accrues for purposes of
212(a)(9)(B) until after the 18th birthday. However, 212(a)(9)C), the permanent bar, DOES apply to minors
and as such cases should be analyzed carefully prior to sending the child abroad for consular processing.

3
individuals who brought in the child under the smuggling provisions. In the more recent
technological age, the government has the ability to photograph vehicles at entry as well
as record the license plate numbers at the time of entry. In preparing affidavits to support
a Matter of Areguillin entry, be mindful that details will be required such as the exact
date of entry, the exact port of entry, and perhaps even the license plate number of the
vehicle in which the child was brought to the United States.

B. Orphans

INA §101(b)(1)(F) sets for the requirements for an orphaned child to be considered a
“child” for purposes of the immigration laws and reads:

(i) a child, under the age of sixteen at the time a petition is filed in his behalf to
accord a classification as an immediate relative under section 201(b) of this
title, who is an orphan because of the death or disappearance of, abandonment
or desertion by, or separation or loss from, both parents, or for whom the sole or
surviving parent is incapable of providing the proper care and has in writing
irrevocably released the child for emigration and adoption; who has been
adopted abroad by a United States citizen and spouse jointly, or by an
unmarried United States citizen at least twenty-five years of age, who
personally saw and observed the child prior to or during the adoption
proceedings; or who is coming to the United States for adoption by a United
States citizen and spouse jointly, or by an unmarried United States citizen at
least twenty-five years of age, who have or has complied with the preadoption
requirements, if any, of the child's proposed residence; Provided, That the
Attorney General is satisfied that proper care will be furnished the child if
admitted to the United States: Provided further, That no natural parent or prior
adoptive parent of any such child shall thereafter, by virtue of such parentage,
be accorded any right, privilege, or status under this chapter; or (ii) subject to
the same provisos as in clause (i), a child who: (I) is a natural sibling of a child
described in clause (i) or subparagraph (E)(i); (II) has been adopted abroad, or
is coming to the United States for adoption, by the adoptive parent (or
prospective adoptive parent) or parents of the sibling described in such clause or
subparagraph; and (III) is otherwise described in clause (i), except that the child
is under the age of 18 at the time a petition is filed in his or her behalf to
accord a classification as an immediate relative under section 201(b) of this
title.

In practical terms, the provisions of §101(b)(1)(F) are the provisions used to qualify most
typical foreign adoptions, that being children adopted through an agency that places
orphaned children in foreign countries with willing adoptive parents in the United States.
Prior to the passage and acceptance of the Hague Convention adoption procedures
discussed below, the provisions in §101(b)(1)(F) were used for all foreign adoptions of
orphans, but since the effective date of the Hague Convention rules, April 1, 2008, the
procedures at §101(b)(1)(F) only apply to non-Hague Convention parties.

4
1. Adoption Abroad

The statute makes clear that in order to qualify as a child for immigration purposes under
§101(b)(1)(F) the adoption must take place in the foreign country. See also 8 C.F.R.
§204.3(k)(2). There is an additional requirement that the adoptive parent or parents have
met the child prior to adoption and filing of a petition to classify the adoptive child as a
child for immigration purposes. In some circumstances, the statute and the regulations do
provide for a child to come to the United States to be adopted, however all preprocessing
for the adoption must be complete as well as a finding made by the Attorney General that
the children will be well cared for if admitted to the US.

2. Adoption Before 16 Years of Age

As with adoptions under §101(b)(1)(E), the final adoption of an orphan under


§101(b)(1)(F) must take place prior to the child’s 16th birthday.

3. Classes of Orphans

The statute and the regulations provide for the varying situations in which a child can be
classified as an orphan. Specifically, orphan status can result from the death or
disappearance of both parents, abandonment or desertion by both parents or separation, or
loss of both parents.

In determining whether or not abandonment has occurred, the regulations require that the
parents have willfully forsaken all parental rights, obligations, and claims to the child, as
well as control over and possession of the child. In other words, the parents must have
given up their parental rights completely and irrevocably as well as given up the control
and care of the child. 8 C.F.R. §204.3(b). The rule for a child who has only one parent is
slightly different in that all that is required is that the one parent be incapable of
providing care and that irrevocably release the child in writing. 8 C.F.R.
§204.3(d)(1)(iii)(C).

Additionally the Immigration Service takes care to make a determination of the status of
the father in situations where the child was born out of wedlock. Where there is a
relationship with the child by the father, the classification as an orphan will not be
approved. If there is no relationship, or the father has abandoned or deserted the child,
then the matter will be treated the same as if there is only one parent.

4. Special Rule for Siblings

Just as with adoptions under §101(b)(1)(E), the adoption of natural siblings over the age
of 16 but younger than 18 are allowed for orphan children. See discussion above.

5. Married Couples Only (or Single and Over 25)

5
The prospective adoptive parents must be married and both the husband and the wife
must adopt the orphan. 8 C.F.R. §204.3(b). There is no mention of the immigration
status of the prospective parents, unlike the Hague Convention adoptions discussed
below. In addition, a single person who is over the age of 25 may also adopt an orphan.

6. Home Study

Generally, as part of the advance processing a home study is conducted in order to


determine the ability to care well for the prospective adoptive child. The home study is
conducted here in the United States and must include information about criminal history,
history of abuse of alcohol or drugs, as well as family violence issues. This is a home
study that must be turned in to Immigration during the pre-processing phase, however if a
home study is required for the actual adoption proceedings, the same study may be used
for immigration purposes. Note, in adoption cases under §101(b)(1)(E), no home study is
required for immigration purposes, but one was probably required in order to obtain the
final adoption decree in the state court.

7. No Benefits to Biological Parents or Siblings

The rule with respect to the natural parents or siblings not obtaining immigration benefits
from an orphaned child is the same as with an adopted child: it is not allowed.

8. Pre Processing and Classification as Orphan (I-600A & I-


600)

With the filing of an I-600A a prospective adoptive parent can obtain approval to adopt
from the Immigration Service. Once it is determined they are approvable, a notice will
issue and their status as approved for adoption will be valid for a period of 18 months. 8
C.F.R. 204.3. Ostensibly, the time period is long enough so that a child can be identified
and petitioned for using an I-600. Once a child is identified, then the parents can file the
I-600. If child has already been identified, the I-600A and the I-600 can be filed at he
same, or the I-600 can be filed while the I-600A is pending. 8 C.F.R. 204.3(d). In other
words, prospective parents do not have to wait for the approval of I-600A (determining
the parents fit to adopt) to file the actual petition for the child. This is unlike the Hague
Convention adoption procedures discussed below.

C. Hague Convention Rules

As of April 1, 2008, the United States adopted and placed into effect the Hague
Convention with respect to inter-country adoptions and the procedures and policies as set
forth in the Hague Convention now apply to all cases where the adoption will take place
in a country state party to the Hague Convention. There are currently approximately 75
countries state party to the Hague Convention. As such, practitioners should be aware to
check convention status prior to proceeding with an adoption as the requirements and
procedures are quite distinct under the Hague Convention. For a complete listing of

6
Hague Convention Countries see
http://travel.state.gov/family/adoption/convention/convention_4197.html.

1. United States Citizen and Spouse Only

An adoption under the Hague Convention can only be accomplished by a married United
States citizen and their spouse who also adopts the child. As with non-convention
adoptions, a single person over the age of 25 may also adopt, but they must be a United
States citizen.

2. Visa Petition Filed Prior to 16 Years of Age

In the scenarios discussed above, only the adoption had to be finalized prior to the child’s
16th birthday. However, the Hague Convention adoptions must have the petition to
classify the child as an immigrant filed prior to the 16th birthday. In other words, the I-
800 must be filed before the child turns 16.

3. Adoption Abroad

The Hague Convention requires that the adoption take place abroad. However it is not a
requirement that the child be an orphan to proceed with a Convention adoption.

4. Residence of Adoptive Parents and Child

The adoptive parents must be residing in the United States and the adoptive child must be
residing in the Convention country. INA §204(d). There are certain exceptions to this
residency requirement for United States citizens living abroad who intent to return and
establish domicile in the United States prior to the issuance of an immigrant visa for the
adoptive child.

5. Suitability and Best Interest

In Hague Convention adoptions, the Immigration Service must make a determination of


suitability to adopt prior to the placement of the child with the adoptive parents by the
authorities in the Convention country. In addition, the Convention country Central
Authority must make a finding that the adoption is in the best interest of the child. In
other words, both State parties must agree the adoption should go forward and the child
will be admitted to the United States before the adoption is finalized. 8 C.F.R.
§204.3(a)(2)

6. Pre Processing and Petition (I-800A & I-800)

Adoptive parents considering a Hague Convention adoption must first be approved as


suitable parents by the Immigration Service. The filing and approval of the form I-800A
is required prior to the filing of a petition to classify a child as an immigrant on form I-

7
800. Given that the Convention took effect on April 1, 2008, if the processing of a
Convention adoption began with the filing of either an I-600 or I-600A prior to April 1,
2008, the adoption may go forward without adherence to the Convention procedures.

7. Payment of Fees

The Hague Convention specifically provides that on payment be made to the birth parents
in exchange for the adoption. Limited exceptions exist for payment of the actual birth
and expenses related to the care of the birth mother while pregnant. 8 C.F.R. 204.304(a)-
(b).

III. Automatic Citizenship

A. Child Citizenship Act

The Child Citizenship Act took effect on February 27, 2001 and applies prospectively
only. The Child Citizenship Act was passed by Congress with the intention that children
who benefit from immigrating through one of their United States citizen parents be
granted United States citizenship at the same they immigrate as lawful permanent
residents. There is no requirement that a child DO anything to be able to obtain the status
as a United States citizens, however if the child wants tangible proof of the status either
an N-600 or a United States Passport application should be filed.

B. Requirements

INA §320 sets forth the requirements under the Child Citizenship Act and provide that at
least one of the parents is a United States citizen, either adoptive or natural. The United
States citizen parent can be a citizen by birth or by naturalization. The child, including
adopted children, must have been admitted to the United States as a lawful permanent
resident prior to their 18th birthday and be residing in the legal and physical custody of
the citizen parent. Citizenship is automatically acquired on the date that all conditions
are fulfilled and is not retroactive. In other words, only those children who were under
the age of 18 on February 27, 2001 are eligible for the automatic acquisition of
citizenship.

C. Exemption from Affidavit of Support

The requirement that an immigrant provide an Affidavit of Support to the United States
government in order to immigrate to the United States is exempted for adopted children
who immigrate while under the age of 18. Generally, the affidavit of support would
require that a sponsor agree in contract form to be liable for any amount of monies
expended by the government for need-based benefits received by the immigrant.
However, in the case of a person who will become a United States citizen automatically
upon admission to the United States as a lawful permanent resident. Instead of filing an
I-864, Affidavit of Support, such a person would instead file an I-864W stating the

8
exemption of the filing requirement due to the automatic classification as a United States
citizen.

IV. Conclusion

The circumstances of individual families seeking to adopt or coming to you after already
in the adoption process are varied. After reviewing those individual circumstances, and
reviewing the statute and regulations relating to adoption in the immigration context,
developing a plan to not only bring the child to the United States or getting residency for
a child already here in the United States then getting United States citizenship for the
same child is what this author considers “happy” law. As lawyers, a good understanding
of the process and procedures to immigrate adopted children to the United States will not
only provide your clients with a fulfillment of their dream to have a family, but also will
provide you with a professional fulfillment of having obtained the ultimate prize for a
deserving child – United States citizenship.

9
TAB 09
Practice Issues and Immigration Options for Vulnerable
Populations
IMMIGRANT ISSUES AFFECTING
CHILDREN IN FOSTER CARE

JANET M. HEPPARD
ANNE CHANDLER
University of Houston Law Center
Clinical Legal Programs
100 Law Center
Houston, Texas 77204-6060

State Bar of Texas


ND
32 ANNUAL ADVANCED FAMILY LAW COURSE
August 14-17, 2006
San Antonio

CHAPTER 56.2
JANET M. BUENING HEPPARD
Civil Clinic Director
Associate Professor of Clinical Practice
University of Houston Civil Clinic
University of Houston Law Center
100 Law Center
Houston, Texas 77204-6060
713/743-2094
JHeppard@uh.edu

BIOGRAPHICAL INFORMATION
Education

1994 JD, University of Houston Law Center, Houston, Texas


1994 MBA, University of Houston, Houston, Texas
1981 B.S., Geology, Summa Cum Laude, Wright State University, Dayton, Ohio

Licenses

State Bar of Texas


U.S. District Court, Southern District of Texas

Membership & Professional Activities

State Bar of Texas (including Family law and Consumer Law sections)
American Bar Association
Houston Bar Association (including Family Law Section)
American Association of Petroleum Geologists
State Bar College

Conferences and Outside Teaching

Family Law on the Front Lines Conference: Dealing With ProSe Opponents and Freelance Clients (April
26&27, 2001; Sponsored by the University of Texas School of Law)
People’s Law School sponsored by the University of Houston Law Center: Family Law Speaker
Keeping Kids Safe: Child Abuse Prevention: for Girl Scout leaders
Family Law on the Front Lines Conference: Habeas Corpus and Writs of Attachment
(April 11&12, 2002; Sponsored by the University of Texas School of Law)
Looking Over the Rim: New Horizons for Families, Courts and Communities: Helping ProSe Litigants Help
Themselves (June 5-8, 2002; Sponsored by the Association of Family and Conciliation Courts)
Rocky Mountain Regional Clinical Conference: Panel: Compatible and Sometimes Conflicting Duties of
Clinicians (November 8, 2003; Hosted by the University of Houston Law Center)
Family Law on the Front Lines Conference: Planning Committee (March 27&28, 2003; Sponsored by the
University of Texas School of Law)
AALS Conference on Clinical Legal Education: Back to Basics/Back to the Future: Small Group Leader:
May 1-4, 2004
Family Law Essentials for $2000 or Free: Handling a Custody Case on a Shoestring (October 29, 2004:
Alpine, Texas; sponsored by the State Bar of Texas)
Family Law on the Front Lines Conference: Discovery on a Shoestring
(June 30-July 1, 2005; Sponsored by the University of Texas School of Law)
Rocky Mountain Regional Clinical Conference: Panel: Collaboration Among Clinics (October 21-22, 2005;
Hosted by Texas Tech University School of Law)
National Institute for Trial Advocacy: Trial Skills for Juvenile and Family Courts, Faculty , (February 24-25,
2006; sponsored by the University of Houston Law Center Blakely Advocacy Institute, Houston, Texas)
ANNE CHANDLER
University of Houston Law Center
100 Law Center
Houston, Texas 77204-6060
713 743 2094
Fax 713 743 2195

BIOGRAPHICAL INFORMATION

EDUCATION

J.D., Cum Laude, University of Houston Law Center


B.A, Political Science with Honors, Colorado State University

PROFESSIONAL ACTIVITIES

American Immigration Law Association, Member, 1998-current


Asylum and Human Rights Law Mentor, American Immigration Law
Association, 2003-current
Super Mentor in Juvenile Immigration Law, American Bar Association, 2006
Houston Refugee Pro-Bono Project, Mentor Attorney, 1999- current
Coalition Against Human Trafficking of Houston, Member 2002-current.

LAW RELATED PUBLICATIONS, ACADEMIC APPOINTMENTS

Author/ Speaker for National American Immigration Law Association


Protecting the Interests of the Children
Co-Author, The ABCs of Special Immigrant Juvenile Status, published in
2006-2007 Immigration and Nationality Handbook, 2006-2007
Author, Fundamentals of Family Based Immigration, publication in 2006
Violence Against Women Act Conference Materials
Speaker, Bi-national Conference, Immigrant Children on their Own, April 2006
Supervising Attorney, University of Houston Law Center, Clinical Programs.
Immigration Clinic, 2003-current
Adjunct Professor of Law, Thurgood Marshall School of Law, 2005 & 2006
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

TABLE OF CONTENTS

I. INTRODUCTION................................................................................................................................................... 1

II. OVERVIEW OF IMMIGRATION LAW FOR ABUSED/ NEGLECTED CHILDREN ...................................... 1


A. Violence Against Women Act......................................................................................................................... 2
1. Protection for Many Children Victims of Family Violence .................................................................... 2
2. Procedure to Apply for Benefits .............................................................................................................. 3
3. The Clock May be Ticking...................................................................................................................... 3
B. U Visa for Victims of Crime ........................................................................................................................... 3
C. T Visa for Cases of Human Slavery ................................................................................................................ 4
D. Asylum and Related Relief.............................................................................................................................. 4
E. Family Petition for Adopted and Orphaned Child........................................................................................... 5
F. Family Petition for Child................................................................................................................................. 5

III. SPECIAL IMMIGRANT JUVENILE STATUS FOR NEGLECTED, ABUSED, & ABANDONED
CHILDREN............................................................................................................................................................. 5
A. Overview of SIJS Status.................................................................................................................................. 5
B. Definition of Eligible Child............................................................................................................................. 6
1. When has a child been “Declared Dependent Upon a Juvenile Court”? ................................................. 6
a. What is a “juvenile court”?.............................................................................................................. 6
b. What does it mean to be “declared dependent upon a juvenile court”?........................................... 6
2. When is a child eligible for long-term foster care”?................................................................................ 7
3. How does federal law define abuse, neglect, or abandonment? .............................................................. 8
C. The Big Question, “Do I need Consent from the Federal Government to Ask a Judge to Turn the Golden
Key? ................................................................................................................................................................ 8
1. Situations When Consent is Necessary.................................................................................................... 9
a. “Constructive Custody” of the Federal Government. ...................................................................... 9
b. “Specific Consent” Requests ........................................................................................................... 9
c. Preparing Specific Consent Request from Federal Government ................................................... 10
D. Turning the Golden Key: Obtaining theDependency Order for the Special Immigrant Juvenile ................. 11
1. Definitions ............................................................................................................................................. 11
2. Jurisdiction and Venue or Where Do I File????? .................................................................................. 11
3. Who Has Standing to be the Petitioner or Who Can File???................................................................. 12
4. Who Gets Notice of the Suit???............................................................................................................. 13
5. Filing the Petition—Who Gets Notice??? ............................................................................................. 14
6. Final Order and Final Trial.................................................................................................................... 14
E. Final Stretch: Submitting I-360 Self Petition and Applying to
Adjust Status as a Legal Permanent Resident ............................................................................................... 14
1. I-360 Self Petition.................................................................................................................................. 14
a. Approval of I-360 .......................................................................................................................... 14
b. Keeping the Approved I-360 Alive ............................................................................................... 15
2. Adjustment of Status ............................................................................................................................. 15

PART III.APPENDIX: SAMPLE MATERIALS, LAW AND REFERRALS


A. Sample Special Immigrant Juvenile Custody Petition
B. Special Immigrant Juvenile Custody Final Order
C. I-360, Self-Petition
D. G-28
E. Sample Letter Requesting Consent from Federal Government to Enter State Court Proceedings
F. Copy of Special Immigrant Juvenile Statutory Authority
G. Copy of Special Immigrant Juvenile Regulatory Authority
H. List of State-Wide Immigration Agencies and Resources

i
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

IMMIGRANT ISSUES AFFECTING decipher your child client’s immigration status, to


make necessary referrals, and to advocate on behalf of
CHILDREN IN FOSTER CARE your immigrant child client.
I. INTRODUCTION
II. OVERVIEW OF IMMIGRATION LAW FOR
This paper is written as a general guide to family
ABUSED/ NEGLECTED CHILDREN
law attorneys representing abused or abandoned
Like the tax code, immigration law is a
“alien” children in foster care. “Alien” is a technical
complicated, dynamic matrix of treaties, statutes,
term branding individuals present in the United States
regulations, and administrative law. Unless a child
that are neither legal permanent residents nor citizens.
acquired citizenship at birth or derived citizenship
When choosing which immigrant “alien” children
through a parent, the child cannot apply for citizenship
should remain in the United States legally, Congress
unless the individual has been a legal permanent
instructed federal agents to rely, in many situations, on
resident for three or five years and has obtained 21
state law and family law court orders to determine
years-of-age. Legal permanent residents have the right
which vulnerable children should remain legally in the
to work in the United States, and to travel freely in and
United States.
out of the United States as long as the individual has
This paper has two goals. First it summaries the
permanent residence is the United States.2 With the
major immigration provisions protecting abused and
exception of children under 18, all legal permanent
abandoned immigrant children. This overview will
residents are required to carry, in their possession, a
provide you with crude tools to help you understand
valid I-551, Legal Permanent Resident Card, a card
the immigration status of your child client and to make
often referred to by the color of an expired version of
adequate referrals to an immigration practitioner in
the I-551, the Green Card.
your area. Our second goal is much more ambitious for
If a child in foster care is not a legal permanent
it seeks to lure you into the role of an immigration
resident or a citizen, it does not follow that the child
advocate as you represent children in courts that make
lacks valid immigration status. Refugees, asylees,
custody determination under state laws for abused and
recipients of valid immigrant and non-immigrant visas,
abandoned children. When deciding which abused or
and individuals with temporary protected status are a
abandoned alien children should be able to remain and
non-exhaustive list of valid immigrant status types. If
work legally in the United States, Congress set out a
you discover a child in foster care is not a legal
scheme whereby judges trained in analyzing state laws
permanent resident or citizen, but has a valid
and making best interests of the child determinations
immigration status, the child may be at risk of losing
hold the golden key to decide whether the doors of
his or her legal status. Immigration law is replete with
legal status in the United States should open for an
legal requirements and timelines that child immigrants
abused, neglected, or abandoned child. Furthermore,
and their adult counterparts must fulfill to maintain
Congress decided that this golden key held by judges
their legal status. Furthermore, many children in legal
which can be used in cases where the abuse, neglected
status are legally present in the United States as
or abandonment occurred in the United States or
derivatives, in other words, because of their
abroad. Thus, our second goal defines the
relationship to a parent. When circumstances of the
circumstances where a judge can turn his golden key to
parent change or circumstances between the parent and
protect an abused, neglected or abandoned child. Part
II gives you the basic tools regarding how to educate
and encourage judges applying state law to utilize the
golden key to open the gate to a child client’s ability to A. Special Immigrant Juvenile Petition
remain permanently in the United States. B. Special Immigrant Juvenile Order
To accomplish these complementary goals, Part I
C. I-360, Self-Petition
provides you with an overview of key immigration
provisions available to protect abused, neglected and D. G-28
abandoned children from deportation. Part II proceeds E. Sample Letter Requesting Consent from Federal
with a focus on the special immigrant juvenile (“SIJ”) Government to Enter State Court Proceedings
status, the status Congress created to protect abused,
neglected, and abandoned children that have been F. Copy of Special Immigrant Juvenile Statutory
Authority
touched by the golden key of a state court judge. Part
III of this paper leaves the reader with numerous G. Copy of Special Immigrant Juvenile Regulatory
Appendixes1 to provide you with the additional tools to Authority
H. List of State-Wide Immigration Agencies and
Resources.
1
The Appendix contains the following materials:
1
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

the child change, the child is often left with no legal Second, a parent-child relationship must exist
right to remain in the United States. between the child and the abuser or the child and an
Many children will not inform you of their abused parent. Generally speaking a child-parent
immigrant status. If a child was not born in the United relationship exists between a child and their biological
States or does not possess an I-551 Card documenting parent5, a step-parent, an adopted parent, or a non-
their status as legal permanent residents, the child may parent if the child’s parent believed s/he was in a valid
be illegally present in the United States. Some children bona-fide marriage with the abuser.6
are aware of their illegal status, others are not. Many Third, the abuse must constitute “battery” or rise
children brought to the United States as infants or to the level of “extreme cruelty”7. Acts that amount to
young children, graduate from our high schools only to “battery and extreme cruelty” include acts of violence;
discover that they are “aliens” who are subject to threatened acts of violence; forced detention resulting
deportation and that they have no legal rights to work, in physical or mental injury; and psychological or
no rights to obtain financial aid for college, and no sexual abuse or exploitation including rape,
right to travel. molestation, incest, or forced prostitution. A pattern of
this type of activity may rise to the level of “extreme
A. Violence Against Women Act cruelty” even if one act, taken alone, does not rise to
If an immigrant child in foster care is not a legal the level of “extreme cruelty”.8
permanent resident or citizen, the Violence Against Fourth, the abusive family member had to be a
Women and Department of Justice Reauthorization Act legal permanent resident or citizen during the time of
of 2005 (“VAWA”) 3 may provide an avenue where a the abuse. If a child was severely battered by a parent
child may gain legal status because of certain instances who never had legal status or was present in the United
of family abuse. States on a visa9, the abused child is not able to obtain
legal permanent residence through the approval of an I-
1. Protection for Many Children Victims of Family 360 self-petition or the Cancellation of Removal
Violence provisions of VAWA 2005. If the abusive parent was
A child maybe eligible for VAWA benefits in two never a legal permanent resident or citizen during the
broad situations: time of the abuse, SIJ status or the U visa maybe
available for the child. The law becomes complicated
1) if the child was a victim of abuse or when the abusive parent was a legal permanent
2) if the child has a parent that was a victim of resident or citizen, but lost such legal status due to the
spousal abuse, and the child obtains benefits abuser’s actions. Generally speaking, the law looks
as the derivative of his or her abused parent. first at how long ago the relationship was severed
between the child and the abusive parent, and
In either situation five requirements must be met secondly, whether there was a nexus between the
before a child is eligible for VAWA benefits. First, the abuser’s loss of legal status and the abuse. If the abuser
child4 must have resided with an abusive parent in the was a legal permanent resident or citizen, but
United States. There is no requirement that the abuse subsequently lost his or her status, the child may still
occurred in the United States. Rather, what is key, is be eligible for VAWA benefits depending on when and
that the child, or the child’s abused parent, resided with why the abuser lost his or her citizenship or status as a
the abuser in the United States.

5
If the biological parent is the mother of the child, the
parent-child relationship automatically exists. If the
3
The Violence against Women and Department of Justice biological parent is the father of the child the law is more
Reauthorization Act of 2005 (P.L. 109-162) January 5, 2006. complex and additional factual and legal analysis may be
necessary to determine if the parent-child relationship exists
See INA § 204(a)(1)(A); 8 C.F.R. § 294.2 (self-petitioning INA § 204(a); 8 C.F.R. § 204; INA § 240(A).
provisions for battered spouses or children); See INA §
6
204(A); 8 C.F.R. § 1240.65 (Special Rule Cancellation of Supra note 3.
Removal). 7
8 CFR 204.2(c)(1)(vi).
4
As more precisely defined in case law and regulations a 8
Id.
child for VAWA purposes is an unmarried person less than
9
twenty-one years of age who is a) legitimated child; b) a For example, if the abusive parent has been continually
stepchild; c) a child legitimated under the law of the child’s present in the United States on a visa, such as a H1 visa,
residence or under the law of the father’s residence; d) an during the abusive relationship, the abused child is not
illegitimate child; e) a child adopted while under the age of eligible for VAWA benefits because the abuser, though
sixteen; f) a child who is an orphan. INA § 204(a); 8 C.F.R. legally present in the United Stats, was not a legal permanent
§ 204; INA § 240(A). resident or citizen.
2
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

legal permanent resident. For example, if the abusive deadlines.14 For example, if the abuser is a legal
parent was stripped of his legal permanent resident permanent resident, the abuser may lose his or her
status because he committed an act of domestic abuse, legal status in the United States because of the
the child may still be eligible for VAWA benefits domestic violence violation. If this is the case, the child
because there is a nexus between the loss of the may need to apply for VAWA benefits within two
abuser’s legal permanent residency and the abuse. years of the loss of the abusive parent’s loss of legal
The fifth level of inquiry is to decide whether the status. In some cases of a divorce between a parent
child is a person of “good moral character”10 and and an abusive step-parent, a child may lose VAWA
whether the child does not have any immigration or eligibility, if certain time deadlines are not met. For
criminal infractions that could prevent the child from example, if an abusive step-parent divorces a child’s
obtaining permission to reside permanently in the biological parent, the child, or the child’s parent, may
United States. need to submit a self-petition for VAWA benefits
within 2 years of the final divorce decree.15
2. Procedure to Apply for Benefits
Unlike the Special Immigrant Juvenile Visa where B. U Visa for Victims of Crime
a court applying state law must make specific findings The U visa is a nonimmigrant visa with the
of fact and orders for the child to obtain immigration possibility of securing lawful permanent residence
benefits, to be eligible for VAWA benefits, the child’s status for certain victims and witnesses of serious
advocate does not need any special findings or orders crimes.16 Noting that immigrants in unlawful status
from a court making custody determinations based on often hesitate to assist in the investigation and
state law. To obtain VAWA benefits, only the prosecution of criminal activity, Congress established
Department of Homeland Security11 and the Executive the U visa to act as a carrot for immigrant’s
Office of Immigration Review12, have jurisdiction to participation in the criminal legal system. To obtain the
receive and adjudicate VAWA benefits. If you U visa an immigrant must demonstrate that he or she:
interview an immigrant child who is possibly eligible
for VAWA benefits, please see the Appendix to this 1) is the victim of criminal activity occurring in
article for Texas organizations that provide immigrant the United States or abroad;
children free legal immigration services. 2) suffered substantial physical or substantial
mental abuse as a result of the crime;
3. The Clock May be Ticking 3) has or has been helpful in the investigation or
Referrals to immigration providers for a child that prosecution of the criminal activity UNLESS
maybe be VAWA eligible, should be made as quickly the victim is a child under the age of 16. A
as possible. Depending on the situation, a child may child under the age of 16 only need show that
have until 25 years of ageor 21 years of age to self- a parent, guardian, or next friend, has or has
petition for benefits under VAWA13. Tthe child may
lose eligibility under VAWA if the child or the child’s
abused parent does not apply for benefits within certain
14
An abused spouse must submit a self-petition for VAWA
10 benefits within 2 years of a final divorce. If the child or an
Children under the age of 14 are presumed to be of good
abused spouse fails to submit a timely self-petition, the child
moral character and are excused from submitting police
or abused spouse may still be eligible for benefits for
clearance letters with self-petitions.
VAWA Cancellation of Removal before an immigration
11
If the child that is VAWA eligible, and is not in judge.
deportation proceedings before an Immigration Judge or 15
Compare INA § 204(a)(1)(A) and 8 CFR § 294.2 (self-
does not have a previous order of removal, the child maybe
petitioning under VAWA with INA § 204(A and 9 CFR
able to submit a I-360, Petition for Amerasian, Widow or
§1240.65 (Special Rule Cancellation of Removal).
Special Immigrant to obtain protection from deportation.
16
Simultaneously, or in some cases, at a later date, the child In November 2000 Congress’ mandated the issuance of U
can submit an I-485, Application for Legal Permanent visas to encourage victims of crime to cooperate with law
Residence, to become a legal permanent resident. enforcement. INA §§ 101(a)(15)(U); 8 U.S.C.
12 1101(a)(15)(U). To date the U visa is still nonexistent. When
If the child, is in deportation proceedings, the child can
a victim applies for a U visa and is approved, the victim will
request Cancellation of Removal on EOIR-42B, Application
receive such immigration benefits as deferred action,
for Cancellation of Removal, if she is VAWA eligible. INA
employment authorization, parole, and stays of removal.
240A(b)(2)
Memo, Cronin, Acting Ex. Assoc. Comm. Programs HQINV
13
If a child’s does not submit a self-petition before 21 years- 50/1 (Aug. 30, 2001). Applications for deferred action and
of age, the child must prove that the child-abuse was a employment authorization as interim relief are filed with the
reason not submitting a self-petition before the age of 21. USCIS Vermont Service Center.
3
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

been helpful in the investigation or prostitution, or labor exploitation in sweatshops,


prosecution of the criminal activity.17 domestic servitude, construction sites, and agricultural
settings”21 advocates should explore eligibility for a T
To demonstrate that the child satisfies the third prong, visa. The Trafficking Protection Act of 2000 is replete
a prosecutor, or other local, state or federal official with vivid language explaining that vulnerable victims,
must certify that the child, or in the case of children including hundreds of children, fall prey to “rape and
under 16, parent, guardian, or next friend, has been other forms of sexual abuse, torture, starvation,
helpful in the investigation or prosecution of the imprisonment, threats, psychological abuse, and
criminal activity.18 coercion” to perform profitable services for another.
When Congress created the T Visa it estimated that
C. T Visa for Cases of Human Slavery approximately 50,000 women and children are
In 2000 Congress created the T visa to protect trafficked to the United States annually.
victims of “severe forms of trafficking”. The term
trafficking is a misnomer.19 The T visa does not protect D. Asylum and Related Relief
the majority of children that are held hostage, raped, When a child fears returning to his or her
beaten, or otherwise brutalized by someone hired to homeland, the child is eligible for asylum22,
assist the child cross the United States border. With the withholding of removal,23 or relief under the United
exception of forced prostitution, if a child cannot Nations Convention Against Torture24. To qualify for
demonstrate that someone used “force, fraud or these three forms of relief that protect a child from
coercion” to induce the performance of the child’s deportation to the country of harm, a child applicant,
services, the child is not a victim of “human like their adult counterparts, must meet the definition
trafficking”.20 Thus, if a child is found near death in the of a refugee in the INA.25 The refugee definition
back of a trailer upon being smuggled in the country, protects children that have been persecuted or face a
the child is not going to be able to obtain a T visa well-founded fear of persecution because of the child’s
unless the child has performed (or is in route) to political opinion, religion, race, nationality, or
performing commercial sex work or unpaid labor. membership in a particular social group.26 Thus, the
Even if a child was forced to perform unpaid labor, if
an individual over the age of 18 cannot demonstrate
compliance with reasonable requests for assistance in 21
U.S. DEP’T OF JUSTICE ET AL., ASSESSMENT OF
the investigation or prosecution of the acts of U.S. GOVERNMENT ACTIVITIES TO COMBAT
trafficking, the individual will not be eligible for a T TRAFFICKIGN IN PERSONS (2004).
visa. Trafficking also protects children that must 22
The definition of “refugee” is found at INA § 101(a)(42);
perform sexual or labor services to pay off a debt; this INA § 208; 8 U.S.C. §1101(a)(42).
is known as peonage. An individual’s initial agreement 23
to incur a debt or to perform labor services to pay off a INA §241(b)(3); 8 C.F.R. § 1208.16.
debt does not allow an employer or smuggler to later 24
United Nations Convention Against Torture and Other
restrict the person’s freedom or to use force or threats Cruel, Inhuman or Degrading Treatment or Punishment,
to obtain repayment. subject to any reservations, understandings, declarations, and
If an immigrant child describes any instances of provisos contained in the United States Senate resolution of
entrapment in “commercial sexual exploitation such as ratification of the Convention, as implemented by section
2242 of the Foreign Affairs Reform and Restructuring Act of
1998 (Pub.L. 105-277, 112 Stat. 2681, 2681-821); 8 C.F.R. §
17 1208.16 to 8 C.F.R. § 1208.18.
Id.
25
18 INA § 101(a)(42); INA § 208; 8 U.S.C. §1101(a)(42).
Id.
Memorandum from INS on Guidelines for Children's
19
INA §§ 101(a)(15)(T); Trafficking Victims Protection Act Asylum Claims, to Asylum Officer Corps (Dec. 10, 1998);
of 2000, Division A of Pub. L., 106-386, 114 Stat. 1464 UNHCR, Guidelines on Policies and Procedures in Dealing
(Oct. 28, 2000); Victims of Trafficking and Violence with Unaccompanied Children Seeking Asylum (1997); U.S.
Protection Act; H.R. Conf. Report No. 106-939; 8 C.F.R. § Department of Justice, Executive Office for Immigration
214.11; 67 Fed. Reg. 4784 (Jan. 31, 2002); Torture Victims Review, Interim Operating Policies and Procedures
Protection Reauthorization Act of 2003; Pub. L. 108-193, Memorandum 04-07: Guidelines for Immigration Court
117 Stat. 2875 (Dec. 19, 2003), H.R. 2620. Cases Involving Unaccompanied Alien Children,
20 Memorandum from the Office of the Chief Immigration
There is one narrow exception to the requirement that
Judge (Sept. 16, 2004)
“force, fraud, or coercion” had to be used to induce the
26
immigrant to perform sexual or labor services. If the child Id. What groups constitute a “particular social group” is a
was under the age of 18 that are used for commercial sexual matter of considerable controversy and uncertainty. The
activity even if there is no force, fraud or coercion, the child group must share a common, immutable characteristic,
is a victim of trafficking. immutable either because the members of the group cannot
4
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

refugee definition focuses on assessing the likelihood adoptive parent(s) for two years.33 The two years’
and the severity of harm the child with face upon residency requirement can occur before or after the
return to the home country, as well as the reason why adoption.
the child has been harmed or is likely to be harmed.
The United Nations Convention Against Torture F. Family Petition for Child
protects individuals that are more than likely to be Another route for an abused child to obtain legal
tortured by a state actor.27 status is through an, I-130, Petition for a Alien
If you find that a child is fearful of returning to Relative, submitted on behalf of the child or the child’s
their country of birth or last habitual residence, a parent.34 As is the case for adopted and orphaned
timely referral to an attorney with expertise in asylum children, United States citizens can petition for their
law is vital. Asylum law provides that absent parents, biological children, step-children, spouses,
“exceptional circumstances”, if an applicant fails to sons and daughters, and siblings. Legal permanent
apply for asylum within one year of residing in the residents can petition for their parents, spouses,
United States, the applicant is not eligible for asylum.28 children, and unmarried sons and daughters.35 When
Also, applying for asylum law when a child does not working with a child, it is important to ascertain if a
meet the technical definition of asylum, can result is relative has submitted an I-130, Petition for Alien
severe immigration consequences that may lead to a Relative, for the child or the child’s parent. If the
child’s detention and ultimately, in the child’s child’s parent obtains legal permanent residency
deportation. through an approved family petition, the child may be
able to obtain legal permanent residency at or near the
E. Family Petition for Adopted and Orphaned same time as his or her parent. Let’s imagine a United
Child States citizen petitions for his El Salvadoran sister,
Federal law permits citizens and legal permanent Blanca. When a visa becomes available for Blanca to
residents to petition for their adopted child so that the enter the United States as a resident, Blanca’s husband
adopted child can reside permanently in the United and unmarried children are also allowed to enter the
States.29 Similarly, citizens and legal permanent United States as derivatives of Blanca.36
residents can petition for an orphaned child.30 With
very few exceptions, if a child is not adopted by the III. SPECIAL IMMIGRANT JUVENILE
age of 16, the child cannot become a legal permanent STATUS FOR NEGLECTED, ABUSED, &
resident in the United States under the definition of an ABANDONED CHILDREN
adopted or orphaned child. Thus, for almost all A. Overview of SIJS Status
children adopted after their 16th birthday, the adoption Neglected, abused and abandoned children are
is not recognized as a legal act establishing a parent- able to apply to be categorized as a special immigrant
child relationship for immigration purposes.31 The only defined in section 101(a)(27)(J) of the Immigration and
exception to this rule is if the family adopts a child Nationality Act (“INA”). Once categorized as a special
under 18 years-old who is the natural sibling of another immigrant under INA § 101(a)(27)(J), the juvenile is
adopted child who is under 16 years-old.32 In addition considered paroled into the United States. Paroled
to the general age requirement that a child be adopted special immigrant juveniles can request the
before his or her 16th birthday, it is necessary that the Department of Homeland Security’s benefits arm,
child be in the legal custody and reside with the United States Citizenship and Immigration Service, to
approve their application for legal permanent resident
so the juvenile can permanently reside and work in the
change it or because the members of the group should not be United States. After five years of living in the United
required to change it because it is fundamental to their being. States as a legal permanent resident, the child is often
Broad demographic characteristics such as gender, eligible to become a naturalized citizen.
nationality or age are generally insufficient characteristics to The Texas Family Code’s statutory provisions and
establish a particular social group. procedures come into play during the child’s attempt to
27
See 8 C.F.R. § 1208.16 to 8 C.F.R. § 1208.18.
28
Supra note 22. 33
INA § 101(b)(1)(E); Matter of Lee, 19 I&N Dec. 119
29
INA § 101(b)(1)(E)(i). (BIA 1984) (addressing the issue of residency for adoption).
30 34
INA § 101(b)(1)(E)(ii). INA § 201, INA § 203; INA § 204; 8 CFR § 204; 8 CFR §
31 245. To download form, read discussion of law, and to find
Matter of Cariaga, 15 I&N Dec. 716, 717 (BIA 1976).
links to the statute and regulations visit www.uscis.gov
32
A natural sibling includes children “sharing one or both 35
Id.
biological parents. INS Memorandum, Pearson, Exe. Assoc.
36
Comm. HQADN 70/8.3 (Nov. 13, 2000). Id.
5
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

obtain and hold onto the status of a special immigrant 1. When has a child been “Declared Dependent
pursuant to INA § 101(a)(27)(J). Once the child Upon a Juvenile Court”?
becomes a legal permanent resident, the Texas Family a. What is a “juvenile court”?
Code takes a back seat to federal law which controls Before a child can obtain a special immigrant
whether the child is eligible to naturalize. juvenile status, the child must obtain an order of
dependency from a “juvenile court.” Federal law
B. Definition of Eligible Child defines a juvenile court as a “court located in the
Federal law defines an abused, neglected or United States having jurisdiction under State law to
abandoned child eligible to be categorized as a special make judicial determinations about the custody and
immigrant child as an alien that is under-twenty one care of juveniles”.41 What constitutes a juvenile court
years of age and unmarried.37 Also, the child must under federal law differs from state to state. In
meet the following criteria: California, advocates have obtained special immigrant
juvenile status for children found dependent in
(1) Has been declared dependent upon a juvenile delinquency or dependency proceedings. In Texas,
court located in the United States in children have been found to be dependent on a juvenile
accordance with state law governing such court if a family or probate court had jurisdiction over
declarations of dependency, while the alien their cases.42
was in the United States and under the
jurisdiction of the court38; b. What does it mean to be “declared dependent
(2) Has been declared eligible for long-term upon a juvenile court”?
foster care; Federal law mandates that a child seeking a
(3) Continues to be dependent upon the juvenile special immigrant juvenile visa demonstrate that a
court for eligible for long-term foster care, juvenile court found that she or he was dependent on
such declaration, dependency, or eligibility their court or that the child has been legally committed
not having been vacated, terminated or to or placed in custody of an agency or department of a
otherwise ended; and State. The Immigration and Nationality Act provides
(4) Has been the subject of judicial proceedings that for a child to be eligible for a special immigrant
or administrative proceedings authorized or juvenile visa, the child needs to have
recognized by the juvenile court in which it
has been determined that it would not be in been declared dependent on a juvenile court
the alien’s best interest to be returned to the located in the United States or whom such a
country of nationality or last habitual court has legally committed to, or placed
residence of the beneficiary or his or her under the custody of, an agency or
parent or parents39 department of a State and

If a child is found eligible for classification as a special Because the terminology and concept of being
immigrant and the United States Citizenship and dependent on a court does not appear in the Texas
Immigration Services approves the I-360, Petition for Family Code, your efforts to insert language that the
Amerasian, Widow or Special Immigrant,40 the child is child is declared dependent upon the court in your
deemed paroled. Once paroled, the child receives a thin petitions and orders may be met with scorn by family
layer of protection from deportation and is one step judges who view the language as meaningless
closer to obtaining legal permanent residency. nonsense. Unfortunately, the federal regulations
interpreting the special immigrant juvenile visa are not

37 41
8 C.F.R. § 204.11(c). 8 CFR § 204.11(a).
38 42
INA § 101(a)(27)(J). The statute has no requirement that The Office of Administrative Appeals, a federal agency
the child be declared dependent on a juvenile court if the with the mandate of reviewing decisions made by the United
child has been “legally committed to, or placed under the States Citizenship and Immigration Services (formally the
custody of, an agency or department of a State”. INA § Immigration and Naturalization Service) has broadly defined
101(a)(27)(J)(i) The regulatory language, in contradiction to the number of situations where a child in Texas will be
the language of the statute, requires that each child be declared dependent upon a juvenile court to include
declared dependent upon a juvenile court. 8 C.F.R. § situations. See U.S. Department of Justice, Immigration and
204.11(c)(3). Naturalization Service, Office of Administrative Appeals,
39 Petition for Special Immigrant Juvenile Pursuant to Section
8 C.F.R. § 204.11(c).
203(b)(4) of the Immigration and Nationality Act, A
40
See Appendix for copy of I-360. 70110167, 12/27/1994.
6
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

illustrative. The federal regulations require that the 2. When is a child eligible for long-term foster
child care”?
The statute requires a juvenile court find the child
[h]as been declared dependent upon a is eligible for long-term foster care and that the child is
juvenile court located in the United States in “deemed eligible by that court for long-term foster care
accordance with the state law governing such due to abuse, neglect or abandonment.” Consistent
declarations of dependency, while the alien with the statute, the regulations provide that before a
was in the United States, and under the child can obtain a special immigrant juvenile status,
jurisdiction of the court.43 there must be a finding that the child “[h]as been
deemed eligible by the juvenile court for long-term
Moreover, when submitting the I-360, Petition for foster care”49. Moreover, when submitting the I-360
Amerasian, Widow or Special Immigrant, “I-360 self- self-petition, the regulations provide that the child
petition”44 so that the child can be classified as a submit a “juvenile court order, issued by a court of
special immigrant juvenile, the regulations provide that competent jurisdiction located in the United States,
the child submit a “juvenile court order, issued by a showing that the court has found the beneficiary
court of competent jurisdiction located in the United eligible for long-term foster care.”50 Unlike the vacuum
States, showing the court has found the beneficiary to left by a lack of a meaningful definition for when a
be dependent upon the court.”45 When applying the child is declared dependent upon a juvenile court, the
pre-1997 law, the administrative appeals unit of the federal regulations shed light on when a child is
Immigration and Naturalization Service found that the eligible for long-term foster care:
family court’s order need not contain specific language
that the child is dependent on the court.46 If it is Eligible for long-term foster care means
possible, attempt to obtain an order declaring the child that a determination has been made by the
dependent on the court to prevent any legal question of juvenile court that family reunification is no
law of whether Congressional language must be longer a viable option. A child who is
inserted into the juvenile court’s order. As advocates, it eligible for long-term foster care will
is important to educate the judges that language normally be expected to remain in foster care
verifying the declared is dependent on the court is not until reaching the age of majority, unless the
meaningless, and that such language should remain in child is adopted or placed in a guardianship
the final orders to ensure the child is not returned to his situation. ……a child who has been adopted
or her country of origin. A copy of the special or placed in guardianship situation after
immigrant juvenile visa statute47 and regulations48 that having been found dependent upon a juvenile
requires a declaration that the child be declared court in the United States will continue to be
dependent on the juvenile court are included in the considered to be eligible for long-term foster
Appendix of this article to assist you in educating the care.51
judge.
We recommend that your orders contain the language
43
that the child is eligible for long-term foster care
8 C.F.R. § 204.11(a)(3). because the child has been abused, neglected or
44
See Appendix abandoned. If a judge wishes to strike the language
45 determining that the child is eligible for long-term
8 C.F.R. § 204.11(d)(2)(i)
foster care, it is vital to educate the judge that this
46
Besides the regulations found in 8 C.F.R. § 204.11 the language is not mandating that the state of Texas
only agency guidance that the authors are aware of that shed expend any funds to house or protect the child, but
light on when a child is dependent on a Texas court is the rather, the language has a specific meaning under the
Office of Administrative Appeals decision mentioned at federal regulations. If the judge remains uncomfortable
supra note 42 at 4. In the administrative decision the court
with the language, we recommend that your order
states
provide clarifying language that eligible for long-term
[t]here is no requirement that the State court decree contain foster care means that family reunification is no longer
the specific statement that the beneficiary is dependent on a viable option due to abuse, neglect or abandonment.
the court. The acceptance of jurisdiction over the custody of
the child by a juvenile court, when the child’s parents have
effectively relinquished control of the chilid, makes the child
dependent upon the juvenile court, wehter the child is placed
49
by the court in foster care or, as here, in a guardian situation. 8 C.F.R. § 204.11(c)(4).
47 50
INA § 101(a)(27)(J)(i). 8 C.F.R. § 204.11(d)(2)(ii).
48 51
8 C.F.R. § 204.11(c)(3). Id.
7
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

3. How does federal law define abuse, neglect, or serious complications for practitioners representing
abandonment? children in foster care wondering if they need consent
There is no federal definition or guidance of what from the federal government before they ask a judge to
acts constitute abuse, neglect, or abandonment. In this turn the key and sign an order with all the federally
federal statutory vacuum, it can be inferred that mandated language needed to qualify a child as a
Congress intended that the judges with “jurisdiction special immigrant.
under State law to make judicial determinations about The Department of Homeland Security “DHS”
the custody and care, abuse, neglect and abandonment” has issued three memorandums attempting to clarify
would rely on state law when deciding whether the under what conditions consent is necessary, and under
child has been abused, neglected or abandoned. what conditions consent will be granted. DHS takes the
position that if a child is in “constructive custody” of
C. The Big Question, “Do I need Consent from the the federal government, the child needs to obtain
Federal Government to Ask a Judge to Turn “specific consent” from the Immigration Customs
the Golden Key? Enforcement “ICE” before obtaining an order from a
In 1997, Congress amended the definition of court with the special immigrant language. If a
“special immigrant juvenile,” by requiring that the practitioner representing a child in “constructive
Secretary of DHS (formerly the Attorney General) custody” obtains an order from a judge without
provide consent to juvenile court dependency obtaining specific consent from DHS, the SIJS petition
jurisdiction.52 In the case of detained children, the will be denied.56 As explained in the latest Department
statute says: of Homeland memorandum on the issue:

“no juvenile court has jurisdiction to “[i]n the case of juveniles in custody due to
determine the custody, status or placement of their immigration status (either by US
an alien in the actual or constructive custody Immigration and Customs Enforcement
of the Attorney General unless the Attorney (ICE) or by the Office of Refugee
General specifically consents to such Resettlement (ORR)), [and] the specific
jurisdiction.”53 consent must be obtained before the juvenile
may enter juvenile court dependency
Despite the passage of this amendment in 1997, no proceedings; failure to do so will render
regulations have been promulgated to implement the invalid any order issued as a result of such
consent portion of the statute. The SIJS regulations, proceedings.57
promulgated and approved prior to the 1997
amendment, do not address criteria for consent.54
There is quite a bit of guidance interpreting why
Congress required consent from the Attorney General juveniles for whom it was created, namely abandoned,
before obtaining an order from a juvenile court. There neglected, or abused children, by
is less guidance clarifying when specific consent is requiring the Attorney General to determine that neither the
actually required.55 This lack of guidance creates dependency order nor the administrative or judicial
determination of the alien’s best interest was sought
primarily
52
INA § 101(a)(27)(J)(iii); 8 USC §1101(a)(27)(J)(iii), as for the purpose of obtaining the status of an alien lawfully
amended November 27, 1997, by Publ. L. 105-119, § 113, admitted for permanent residence, rather than for the
111 Stat. 2440. purpose of obtaining relief from abuse or neglect.
53
Id.
54
8 C.F.R. §204.11. H.R. Rep. No. 105-405, at 2981 (1997), 1997 WL712946, at
55 130; see also M.B. v.Quarantillo, 301 F.3d 109, 115-116 (3d
See F.L. v. Tommy Thompson, 293 F.Supp. 2d 86,
Cir. 2002).
96(D.D.C. 2003)(noting that the “legislative history of the
56
1997 amendment to [8 U.S.C.]§1101 indicates that the See DHS Memorandum, “ Memorandum #3 – Field
requirement of Attorney General consent was imposed as a Guidance on Special Immigrant Juvenile Status Petitions”
precondition to juvenile court jurisdiction in an effort to (May 27, 2004) posted on AILA Infonet at Doc. No.
ensure that SIJ applicants have a special need to remain in 04062168 (6/21/04) “The adjudicator must be satisfied that
the United States and do not use the process simply to gain the petitioner obtained specific consent from ICE where
an immigration benefit. The Conference Report on the necessary. If specific consent was necessary but not timely
Amendment states: obtained, a juvenile court dependency order is not valid and
the petition must be denied.”
the language has been modified in order to limit the
57
beneficiaries of this provision to those Id.
8
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

1. Situations When Consent is Necessary Family law practitioners should understand this
a. “Constructive Custody” of the Federal complexity and seek the assistance of an immigration
Government. practitioner with experience in children’s issues to seek
While the need for specific consent is clear, what advice on whether specific consent is necessary.
constitutes “constructive custody” is not. Practitioners
have turned to policy memorandum58 and statements b. “Specific Consent” Requests
made by public officials59 at CLE trainings to decipher Because the federal government has not
when a child needs to obtain consent from the promulgated regulations following Congress’ added
Department of Homeland Security prior to obtaining an requirement, in 1997, that an abused, neglected or
order from a juvenile court. 60 Practitioners have abandoned child seek specific consent request, the only
summarized constructive custody to exist when the guidance are Department of Homeland Security
federal government is providing financing for the care, memorandum. The most recent Memorandum, the
shelter or services provided to the child.61 Yates Memorandum, purports to supersede all prior
Some children in foster care arrangements may be guidance from the Department of Homeland Security
determined to be in the “constructive custody” of the and its earlier counterpart, Immigration and Nationality
federal government if the child was previously Service. The Yates Memorandum contains no criteria
detained in the Department of Homeland Security or or legal standards specifying when specific consents
was in the Office of Refugee Resettlement’s care. If should be granted. Advocates look to a1999 Cook
the child is in state foster care and has never been Memorandum which provides a two-part test for
apprehended or processed by federal officials, the child specific consent.62 The Cook memo states the agency
is not in constructive custody. If a child has been should grant specific consent to juvenile court
apprehended by immigration authorities in the past, but jurisdiction if: 1) it appears that the juvenile would be
is now in foster care, it is not easy to decipher when eligible for SIJS if a dependency order is issued; and 2)
specific consent to enter state court is necessary. in the judgment of the federal administrative official,
Arrangements between state entities and the Office of the dependency proceeding would be in the best
Refugee Resettlement and the Department of interest of the juvenile.63 Several courts have held that
Homeland Security are quite complex. What appears to the Cook Memorandum provides sufficient guidance
be a state placement of a child into foster care may in for review of agency abuse of discretion under the
fact be funded by the Office of Refugee Resettlement Administrative Procedures Act.64
or the Department of Homeland Security. The lack of The Cook Memorandum indicates that requests
clear guidance leaves practitioners vulnerable to for consent must be in writing and directed to the
incorrectly determining when consent is not required. District Director (of then-INS, now USCIS) with
jurisdiction over the juvenile’s place of residence.
58
Current practice, however, is for consent requests to be
AILA Teleconference Tape on Special Immigrant Juvenile sent to John Pogash, National Juvenile Coordinator,
Status, December 1, 2005 (Chris Nugent, for example, noted Immigration & Customs Enforcement, U.S.
in a recent exchange with a colleague on the Center for
Constitutional and Human Rights’ Special Immigrant Rights
listserve that John Pogash was explicit during the AILA call 62
“Special Immigrant Juveniles”, Memorandum #2:
that specific consent is not required when a child has been
Clarification of Interim Field Guidance, dated July 9, 1999,
released from ORR custody.)
Thomas E. Cook, Acting Assistant Commissioner (posted on
59
John Pogash’s phone number is (202) 732-2913 and AILA InfoNet); see discussion in Appendix K, Special
address is: Mr. John J. Pogash, National Juvenile Immigrant Juvenile Status For Children Under Juvenile
Coordinator, U.S. Immigration and Customs Enforcement, Court Jurisdiction, by Sally Kinoshita and Katherine Brady,
Office of Detention and Removal Operations, 801 I Street, Immigrant Legal Resource Center, January 2005 (manual
N.W., Suite 800, Washington, D.C. 20536. “Pogash is available as a free download from the Immigrant Legal
charged with reviewing and deciding all specific consent Resource Center’s website, www.ilrc.org)
requests.” Zheng v. Pogash, Civ. Action No. H-06-197, 63
Cook Memorandum at ______________.
page 4, fn. 4 (S.D.Tex., filed 2/23/2006). Earlier, the D.C.
64
District Court determined that DHS, rather than the Office of M.B. v. Quarantillo, 301 F.3d 109, 113 (3d Cir. 2002)(The
Refugee Resettlement (ORR) retains authority to grant Cook Memorandum and SIJS regulation, 8 C.F.R. § 204.11
consent to juvenile court jurisdiction in SIJS cases. F.L. v. supply “some law to apply,” thus allowing judicial review);
Tommy Thompson, 293 F. Supp. 2d 86 (D.D.C. 2003). A.A.-M v. Alberto Gonzales, C05-2012C, 2005 WL
60 3307531 at 2-3; Zheng v. Pogash, Civ. Action No. H-06-
AILA Teleconference Tape from December 1, 2005.
197, page 4, fn. 4 (S.D.Tex. Filed 2/23/2006). See also, Yue
61
Anne Chandler, Kathleen Mocio, Judy Flanagan, Yu v. Brown , 36 F. Supp. 2d 922 (D.N.M. 1999)(INS has
Immigration & Nationality Law Handbook, 2006-07 non-discretionary duty to process special immigrant juvenile
Edition, American Immigration Lawyers Association. applications, though it has discretion in the ultimate decision
www.aila.org whether to grant LPR status).
9
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

Department of Homeland Security, with copies to the Homeland Security or an Office of Refugee
local United States Citizenship and Immigration Resettlement files separately.
Services’ District Director, local Chief Counsel of When physical abuse is at issue, and visible
Immigration and Customs Enforcement, and the United injuries or scars are present or pain is ongoing,
States and Citizenship and Immigration Juvenile obtaining a forensic medical exam is advisable.
Coordinator.65 Photographs of any visible injuries or scars can be used
If a child in foster care has had no contact with to document the case. Hospital or other medical
federal immigration officials, advocates should not records, and copies of prescriptions for medication
contact Department of Homeland Security to confirm used for treatment may be useful in establishing abuse.
that a child does not need specific consent. Advocates may need to refer the child to a mental
Information relating to a child’s specific consent health professional, such as a psychiatrist,
request is not confidential. Communicating with psychologist, social worker, or other therapist to
federal authorities about a child who has not been document psychological abuse. If a psychological
apprehended by Department of Homeland Security or condition is diagnosed, supplement the record with a
is not on Department of Homeland Security radar may copy of the description of the condition from the
result in removal proceedings against the child. American Psychiatric Association’s Diagnostic
Statistical Manual.66 Any previous records, such as
c. Preparing Specific Consent Request from Federal reports from therapists, should be obtained. Working
Government with professionals who have received training on the
A starting point for a specific consent request is a issues to be addressed in SIJS or other immigration
detailed affidavit from the client to establish what cases makes your job much easier.
happened to him. Numerous interviews of the child If a parent or guardian is deceased, a death
may be required to establish rapport and gain the certificate should be obtained. Barring that, affidavits
child’s trust. Painful details about the past may not be from the client and family members or friends as to the
revealed immediately. Therefore, if aging-out is an circumstances of the parent’s death will be necessary.
issue, interviews of the client must start immediately. Police reports of abuse or any child welfare agency
The child’s affidavit should contain information about reports, if any, should be gathered.
the parents and why it would not be in the child’s best Documenting the child’s age can often be
interests to return to the home country. difficult.67 The Special Immigrant Juvenile regulation
To prevent denials based on the government’s states that “documentary evidence of the alien’s age, in
view that the child is not credible, it is helpful to obtain the form of a birth certificate, passport, official foreign
a complete copy of previous statements made by the identity document issued by a foreign government,
child applicant. Typically, the client may be such as a Cartilla or a Cedula, or other document
interviewed by Department of Homeland Security or which, in the discretion of the director, establishes the
an Office of Refugee Resettlement social worker or beneficiary’s age” must be submitted in support of the
caseworker, often before the advocate has contact with petition.68 The document, if not in English, must be
the client. It is advisable to request a copy of the translated.
client’s file, to include all client statements, intakes, Included in the special consent request is evidence
evaluations, incident reports, etc. The advocate should that it is not in the best interests of the minor child to
compare the information gathered from the client with return to his or her home country.69 Although the SIJS
the statements or reports prepared by government statute clearly indicates the juvenile court must make
employees. A Freedom of Information Act (FOIA) this determination, in consent cases, it is wise to
request should be made to Department of Homeland include best interest evidence with the request to
Security or an Office of Refugee Resettlement to
obtain these records. Given that it is taking up to a
year to get a response on a FOIA request, advocates
may need to make arrangements to view Department of
66
Diagnostic and Statistical Manual of Psychological
Disorders, American Psychiatric Association, rev. 2000.
65 67
“Pogash is charged with reviewing and deciding all 8 C.F.R. § 204.11(d)(1).
specific consent requests.” Zheng v. Pogash, Civ. Action 68
Id.
No. H-06-197, page 4, fn. 4 (S.D.Tex., filed 2/23/2006).
69
Earlier, the D.C. District Court determined that DHS, rather INA §101(a)(27)(J)(i); 8 U.S.C.A. § 101(a)(27)(J)(i)
than the Office of Refugee Resettlement (ORR) retains (administrative or judicial body must determine that it is
authority to grant consent to juvenile court jurisdiction in “would not be in the alien’s best interest to be returned to the
SIJS cases. F.L. v. Tommy Thompson, 293 F. Supp. 2d 86 alien’s or parent’s previous country of nationality or country
(D.D.C. 2003). of last habitual residence”).
10
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

DHS.70 Documents as the State Department Country injury to a child that results in an observable and
Reports, State Department Consular Travel Warnings, material impairment of the child’s growth,
and any articles about the client’s home country that development, or psychological functioning72, physical
discuss health and medical conditions, education, or injury that results in substantial harm to the child, or
child welfare statistics in that country help provide the genuine threat of substantial harm from physical
factual support for your claim as to why it is not in injury73, or failure to make a reasonable effort to
your client’s best interest to return to his or her home prevent an action by another person that results in
country. Evidence of the services available in the physical injury and substantial harm to the child.74
United States that are not available or limited or “Child” is defined as a person under 18 years of
inaccessible to the client in his home country, such as age who is not and has not been married or who has
access to general health care, physical therapy, special not had the disabilities of minority removed for general
education, psychiatric services, and specialized health purposes.75
care needs should be provided. The unavailability or A child is “neglected” when he/she is left in a
unwillingness of family members in the home country situation where they might be exposed to substantial
to care for the minor child can be documented with the risk of harm, physical or mental, without arranging for
child’s affidavit, affidavits of third parties, or perhaps the child’s necessary care AND demonstrating an
even from family members themselves. intent not to return.76

D. Turning the Golden Key: Obtaining 2. Jurisdiction and Venue or Where Do I File?????
theDependency Order for the Special Federal law requires an order of dependency from
Immigrant Juvenile a “juvenile court”. Because “juvenile court” is defined
There are several potential options immigrant very broadly under the federal law related to SIJ, it
children have to protect them in the case of abuse, appears there are several courts with possible
neglect or abandonment. If your immigrant child jurisdiction where the required dependency orders may
qualifies under the Special Immigrant Juvenile (SIJ) be obtained. Depending on the Texas county where
regulations discussed earlier, the following discussion the child resides, attorneys may find one court more
will give you some insight as to what family law issues desirable than another for obtaining an order with the
you may need to consider as you work towards gaining required findings.
immigration protections for your client. At first glance, when thinking of a “juvenile
court”, one thinks of those courts which regularly deal
1. Definitions with children who have been abused and neglected. If
As stated earlier in this paper, because federal law the child is already in the custody of the Texas
does not define abuse, neglect, or abandonment, Department of Protective and Regulatory Services
Congress intended that state law would control. It is (TDPRS), a court has probably already assumed
important to have knowledge of these definitions when jurisdiction of the child. In larger counties in Texas,
establishing the proof needed for the required judicial this may be a court which only handles cases dealing
findings in the final custody/dependency order. The with abused, neglected or abandoned children or with
Department of Homeland Security has begun children charged with delinquency. Because these
challenging some final custody orders by claiming lack courts are familiar with abused, neglected, and
of proof of the judicial abuse, neglect, and/or abandoned children and the children are often in foster
abandonment findings. care, the courts are usually agreeable to including the
A child is “abandoned” when left without language required for the Special Immigrant Juvenile
provision for reasonable and necessary care or under Federal Law. However, if the child is not
supervision.71 already in this particular dependency system, it may be
The Texas Family code defines “abuse” several very difficult to convince the TDPRS to take custody
ways. The definitions that appear to be most relevant because their system is already overloaded.
in these SIJ cases define abuse as mental or emotional If the child is with a family member or other
agency, jurisdiction should be in the court with home
state jurisdiction. Under the Uniform Child Custody
70
The Cook Memorandum indicates that evidence showing
that it would not be in the juvenile’s best interest to be 72
Tex. Fam. Code Ann §261.001(1)(A).
removed from the United States. “is crucial to obtaining the
73
Attorney General’s consent to the dependency order.” Tex. Fam. Code Ann §261.001(1)(C).
“Special Immigrant Juveniles”, Memorandum #2: 74
Tex. Fam. Code Ann §261.001(1)(D).
Clarification of Interim Field Guidance, dated July 9, 1999,
75
Thomas E. Cook, Acting Assistant Commissioner. Tex. Fam. Code Ann. §101.003.
71 76
Tex. Fam. Code Ann. §152.102(1). Tex. Fam. Code Ann §261.001(4).
11
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

Jurisdiction Enforcement Act (UCCJEA)77, court’s of conduct indicating a need for supervision84and our
this state have jurisdiction if this state is the home state child clients or children involved in the SIJ
of the child or was the home state within six months of proceedings have not been involved in delinquent
the filing of the custody determination suit and at least conduct. Although Title 3 defines “child” and includes
one parent or person acting as a parent still continues children held for deportation, these children are
to live in the state78 OR no other state’s court has defined under “non-offender” and there seems to be no
jurisdiction or the court of the home state declines reference to “nonoffenders” under the jurisdiction
jurisdiction and one parent or a person acting as a section of Title 3.
parent still has a significant connection to this state and Because of the broad definition of “juvenile
there is substantial evidence in this state regarding the court” within the SIJ statute85, there is also the
child.79 In the case of our SIJ custody cases, there may possibility that an Order Appointing a Guardian
be no home state because the child has not been in the obtained in Probate Court would meet the requirements
state (or even in the United States) for six months. for the SIJ petition as long as the required language
Additionally, under Texas Family Code 152.204, discussed earlier in this paper is included in the final
courts of this state may exercise temporary emergency Order. A guardianship over the person or estate may
jurisdiction if the child is in this state and has been be obtained over an “incapacitated person” 86 which
abandoned or an emergency order is needed to protect includes a minor. A “minor” is defined in the Probate
the child.80 If no child custody determination is filed in Code as “a person who is younger than eighteen years
a court in the state having jurisdiction, the temporary of age and who has never been married or who has not
emergency order becomes a final order and this state had the person’s disabilities of minority removed for
becomes the home state for the child.81 Thus, this code general purposes”.87 This definition is similar to the
provision may also be used to get the court order definition in the Texas Family Code discussed earlier.
needed to pursue SIJ status for the child. A Probate Court has jurisdiction over the “minor” child
Some immigration officials in Texas have argued as discussed above and the venue is in “the county in
that because the Immigration and Nationality Act, the which the proposed ward resides or is located on the
federal statute, requires an order by a “juvenile” court, date the application is filed”.88 There appears to be no
Title 3 of the Texas Family Code applies and orders requirement regarding the length of residence in a
from other courts are invalid. Texas Family Code particular county prior to a Probate Court acquiring
§51.02 definitions are cited in their argument, jurisdiction and venue. This may be beneficial in cases
specifically the definition for “nonoffender”. A where the child is in danger of aging out shortly after
nonoffender is defined as a child who is subject to the arriving in Texas or shortly after your representation of
jurisdiction of a court under abuse, dependency, or the child begins. Aging out occurs if an immigration
neglect statutes under Title 5 for other than legally judge or the USCIS official finds that the child is no
prohibited conduct of the child; or has been taken into longer eligible as a special immigrant because the child
custody and is being held solely for deportation out of has turned twenty-one years of age or the “juvenile
the United States.82 They then refer to the definition of court” has lost jurisdiction. If you believe the Probate
“child” within that same provision which defines the Court judge will be open to including the language in
upper boundaries of “child” as a person under 17 years the order required under the SIJ statute, then filing
of age83 and claim that, for children who are turning 18 your SIJ custody petition in the Probate Court may be a
years of age, the courts have/had no jurisdiction to sign more expedient way to proceed.
an order such as the one needed for the Special
Immigrant Juvenile because the children were too old. 3. Who Has Standing to be the Petitioner or Who
The counter argument is that Title 3 jurisdiction is Can File???
limited to cases involving delinquent conduct or Federal law related to SIJ children does not
specify who qualifies as a custodian for SIJ purposes.
Therefore, any person who qualifies under Texas

77 84
Tex. Fam. Code Ann. Chapter 152. Tex. Fam. Code Ann. §51.04(a).
78 85
Tex. Fam. Code Ann. §152.201 (a). 8 C.F.R. §204.11(a). A court located in the United States
79 having jurisdiction under State law to make judicial
Tex. Fam. Code Ann. §152.201(a)(2).
determinations about the custody and care of juveniles.
80
Tex. Fam. Code Ann. §152.204(a). 86
Tex. Prob. Code 601(14)(A); “Incapacitated Person”
81
Tex. Fam. Code Ann. §152.204(b). means: a minor …
82 87
Tex. Fam. Code Ann. §51.02(8). Tex. Prob. Code 601(16).
83 88
Tex. Fam. Code Ann. §51.02(2). Tex. Prob. Code 610(a).
12
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

Family Code 102.00389 will fit the bill. Typically, in not the child, in the custody case. Due to potential
these SIJ cases, the most likely petitioner is a conflicts arising, the child and the custodian must be
governmental entity,90 an authorized agency,91a made fully aware regarding you allegiance as the
licensed child placing agency92 such as St. Jerome’s attorney of record.
Catholic Church in Houston, Texas, an arm of Catholic
Charities, a person who has had actual care, control, 4. Who Gets Notice of the Suit???
and possession of the child for at least six months,93 or Because the suit filed in the “juvenile court” is a
a person who is a relative of the child within the third custody case, notice must be given as in any custody
degree if the child’s parents are deceased at the time of case, including any parent or other person who has
the filing.94 The children placed at many of these legal custody. Just as in our more usual custody cases
agencies are in the custody of the Office of Refugee where the father’s name is unknown, these SIJ cases
Resettlement under the Department of Homeland sometimes have the same problems. In fact, because of
Security; thus consent is required prior to finalizing the local customs regarding who one calls “mom” or
custody petition. “dad”, the true biological parents may be unknown.
If the child is in danger of turning eighteen (18) In many SIJ cases, the parents’ addresses are
and aging out of the system, be sure to begin talking unknown; this allows the court to easily make a finding
immediately with the person or agency with actual of abandonment. If one or both parents are deceased,
possession of the child to see who will be the death certificates should be obtained, if possible. In
representative for standing purposes. The Federal some cases, there is already a finding from the
regulations which require consent by the Department Immigration Court that one or both parents are
of Homeland Security if the child is in custody do not deceased and a copy of that finding can be attached to
specify the consent must be obtained prior to filing the the petition for custody. Additionally, in cases where a
petition for custody. However, if the child is in the death certificate is not available, the court may accept
custody of the Office of Refugee Resettlement, that affidavits from people with knowledge regarding the
office will require consent prior to filing the custody circumstances surrounding and proof of the death(s) of
petition. They will not agree to begin the custody the parent(s).
process as the Petitioner until the consent is obtained. If the parent’s address is known, the parent may
In some cases where the child is in custody but in the be willing to sign a Waiver of Service. In the case of a
care of Catholic Charities, a Catholic Charities staff waiver of service, it may be necessary to translate the
member may agree to be the named Petitioner for waiver into the parent’s native language and to include
custody purposes. Knowing who will be the petitioner additional information in the waiver that makes it clear
is important if the child is nearly eighteen because the the parent understands the nature of the lawsuit in the
custody case can take several months especially in United States. If the parent is not willing to sign a
cases where the parents’ location is unknown. In cases waiver, it is becomes more difficult to obtain personal
where the Department of Homeland Security has service in the foreign country where the parent resides.
granted specific consent, a representative of the Office The Texas Rules of Civil Procedure allow service of
of Refugee Resettlement, may be willing to stand as process in a foreign county in several ways including
the Petitioner. service in the manner allowed for service in general
Under the Texas Probate Code, “any person has jurisdiction cases filed in that country or in a method as
the right to commence any guardianship proceeding”.95 directed by that foreign authority in response to a letter
This appears to be a very broad definition and provides rogatory or a letter of request. 96 The Texas Rules also
for standing for a wider scope of persons than is allow service by registered mail.97 In some cases a
permitted under the Texas Family Code. Motion and Order for alternative service in the foreign
Additionally, as part of the decision identifying country may be made pursuant to Texas Rules of Civil
the petitioner is clarifying who you are representing. Procedure Rule 10698 allowing the court to order a
In most cases, you are representing the adult petitioner, method of service other than service by a person
authorized by Texas Rules of Civil Procedure Rule
89
103. For example, a Motion for alternative service
Tex. Fam. Code Ann. §102.003 may be filed with an order allowing service through a
90
Tex. Fam. Code Ann. §102.003(5) company such as DHL or Federal Express. In many
91 cases, service by publication is required because of the
Tex. Fam. Code Ann. §102.003(6)
92
Tex. Fam. Code Ann. §102.003 (7)
93 96
Tex. Fam. Code Ann. §102.003 (9) Tex. R. Civ. Proc. §108a.
94 97
Tex. Fam. Code Ann. §102.003 (13) Tex. R. Civ. .Proc. §106(a)(2).
95 98
Tex. Prob. Code 642(a). Tex. R. Civ. Proc. §106.
13
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

lack of information regarding the parents. If this is the question whether the court’s order was properly
case, be sure to timely request an ad litem following issued.”100
the publication. In some cases, the ad litem may In instances where the child is over sixteen years-
require publication in the home country of the parent. old, practitioners should consult with an immigration
If the decision has been made to file in Probate attorney about the possible need to obtain specific
Court, the parents of the proposed ward are required to language in the order protecting against the child
be personally served with citation if their whereabouts “aging out.” The processing time from the moment the
are “known or can be reasonably ascertained”.99 There order is granted to the time where a juvenile beomes a
appears to be no requirement of either publication of legal permanent resident as a special immigrant
citation on the parent(s) or that an ad litem be juvenile, can be anywhere from a couple of months to
appointed to represent the parent. over a year. Some judges have issued guidance
suggesting that the juvenile court retain jurisdiction
5. Filing the Petition—Who Gets Notice??? past the age of eighteen for children who may be
In many ways the petition filed to obtain the SIJ eligible for special immigrant juvenile relief. Other
required custody order is the same as any other custody courts are amenable to retaining jurisdiction if the
petition filed in Texas. It is recommended that you attorney files a motion with the Court.
title your petition simply “Petition in Suit Affecting the It is important to provide as much evidence as
Parent-Child Relationship” as you would any other possible regarding the required findings in the final
custody petition. Otherwise, we have found the order. You may need proof from witnesses of
District Clerk’s office gets confused and doesn’t know Petitioner’s efforts to locate the parents OR proof the
what to do with your petition. Once you have filed, the parent(s) are deceased. Additionally, there must be
case should proceed as any other custody case. In proof of the abuse, neglect or abandonment required
some cases, the court will appoint an amicus ad litem for the finding in the final order. In some cases, the
to represent the child. We do not routinely request such Immigration Service has contested the custody order
an appointment. A copy of a Sample Petition is claiming the abuse, neglect and/or abandonment was
attached to this paper as Appendix A. not proven. The Service may go so far as to request a
copy of the hearing transcript to prove the lack of
6. Final Order and Final Trial evidence. If the required language is not in the final
The final hearing in your case should proceed as order, you may not be able to finalize the SIJ status for
in any other custody case. However, when obtaining your client. A copy of a sample final order is attached
the order from a judge with jurisdiction to make to this paper in the Appendix B.
custody decisions based on Texas law, it is necessary
to be prepared to educate the judge about federal E. Final Stretch: Submitting I-360 Self Petition
immigration law. The orders must contain language and Applying to Adjust Status as a Legal
that the child: Permanent Resident
After obtaining an order from a judge with the
• is dependent on the court special immigrant language, a child must leap over two
• is eligible for long term foster care additional hurdles to successfully obtain permanent
• has been abused, neglected or abandoned resident status. First, the benefits branch of DHS,
• Best interests of the child to remain in the US United States Citizenship and Immigration Services
must approve the Form I-360. Second, the child must
Further the order should contain: also obtain approval of his or her Application for
Adjustment of Status, form I-485 by the USCIS if the
• Specific factual findings to support order & child is not in removal proceedings, or an immigration
• In cases where the child may “age out” judge of Executive Office of Immigration Review if
specific language providing that the court the child is in removal proceedings. Each hurdle will
retain jurisdiction over the case despite the be discussed individually.
child turning eighteen years of age.
1. I-360 Self Petition
The specific factual findings should be included in the a. Approval of I-360
order to ensure that the child does not have difficulties The I-360 self-petition, if approved, grants the
convincing DHS that the order should be given full child a bases to seek legal permanent residency status
legal affect. DHS has instructed adjudicators that they
“generally should not second-guess the court rulings or
100
See Perez-Olano v. Alberto Gonzalez, Case No. CV-05-
99
Tex. Prob. Code 633(c)(2). 3604 DDP (RZx)(Dist. Ct. CD Ca. Filed 2005)
14
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

under INA § 101(a)(27)(J).101 The approval of the I- child was in need of relief due to abuse, neglect, or
360 self-petition is referred to by DHS Memorandum abandonment.103
as “express consent”. For children that are not in
removal proceedings before an immigration judge of b. Keeping the Approved I-360 Alive
the Department of Justice, Executive Office of Approval of a Special Immigrant Juvenile I-360
Immigration Review, there could be a risk of filing the self-petition may be revoked if the child reaches 21
I-360 self-petition. If the self-petition is denied, the years of age prior to the approval of lawful permanent
child may be referred by DHS to an immigration judge resident status, marries, ceases to be eligible for long
for removal proceedings. term foster care, or ceases to be under juvenile court
USCIS guidance provides that the special jurisdiction.104 Across the nation there appears to be a
immigrant juvenile petition must be supported with the pattern of United States Citizenship and Immigration
following documentation: Service issuing Notice of Intent to Deny the I-360 self-
petition. The Notice of Intent to Deny often include
• Court order declaring dependency on the requests for United States Citizenship and Immigration
juvenile court or placing the juvenile under Service to obtain copies of the entire paper trail that the
(or legally committing the juvenile to) the court applying state law relied upon when granting the
custody of an agency or department of a order with the special immigrant juvenile language.
State;
• Court order deeming the juvenile eligible for 2. Adjustment of Status
long-term foster care due to abuse, neglect, Federal law provides that a child with an approved
or abandonment (i.e. a determination that I-360 may obtain permanent residency through
family reunification is no longer a viable adjustment of status until the child reaches 21. As
option) discussed above, this statutory age cut-off date is
• Determination from an administrative or illusory and misleading in states such as Texas where
judicial proceeding that it is in the juvenile’s courts generally retain jurisdiction over juvenile cases
best interest not to be returned to his/her only until the child turns eighteen. The Immigration
country of nationality or last habitual and Nationality Act provides that a child is no longer
residence; and eligible to adjust status as a legal permanent resident if
• Proof of the juvenile’s age.102 one of the following occurs:

To adjudicate the petition, United States Citizenship 1. The child marries;


and Immigration Services reviews the evidence to 2. The child ceases to be eligible for long term
determine whether the Court’s order was issued to foster care; or
obtain relief from abuse or neglect or abandonment. If 3. The child ceases to be under juvenile court
United States Citizenship and Immigration Service jurisdiction.105
finds that the primarily for the purpose of the court’s
order was to obtain immigration relief, the I-360 self- In addition to these specific requirements applicants
petition will be denied. Thus, it is important that the adjusting status must prove that they are they are not
order contain sufficient findings of fact to show that inadmissible, that is none of the grounds of
the Court made an informed decision in finding the inadmissibility apply to them. See INA 212(a). Federal
law provides that many of the grounds of
inadmissibility listed in INA 212(a) do not apply to
children adjustment status because of their status as a
special immigrant juvenile. Specifically, special
101
immigrant juveniles are exempt from inadmissibility
8 CFR § 204.11(b)(1). for likelihood of becoming a public charge, lack of
102
8 CFR § 204.11(d)(1). The regulations, while listing the
types of documents that may establish the child’s age,
recognize that children may not have birth certificates,
passports, or other foreign identity documents and
103
specifically provide that other documents can establish the DHS has instructed adjudicators that they generally
child’s age. If the birth certificate cannot be located, other should not second-guess the court rulings or question
records that may establish age include baptismal certificates, whether the court’s order was properly issued.
affidavits, school records, and census records. If none of 104
8 CFR § 204.11(c). Please note the statute does not
these records are available, the practitioner could obtain an
include the regulatory requirement that children remain
expert medical opinion regarding age or argue that the state
unmarried.
court finding of fact regarding the child’s birth date is
105
sufficient. 8 CFR § 204.11(c).
15
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

labor certification, and failure to possess a valid visa.106


Most grounds of inadmissibility applicable to special
immigrant juvenile applicants can be waived for
humanitarian purposes, family unity, or when it is in
the public interest.107

PART III.APPENDIX: SAMPLE MATERIALS,


LAW AND REFERRALS
A. Sample Special Immigrant Juvenile Custody
Petition
B. Special Immigrant Juvenile Custody Final
Order
C. I-360, Self-Petition
D. G-28
E. Sample Letter Requesting Consent from
Federal Government to Enter State Court
Proceedings
F. Copy of Special Immigrant Juvenile Statutory
Authority
G. Copy of Special Immigrant Juvenile
Regulatory Authority
H. List of State-Wide Immigration Agencies and
Resources

106
See INA § 245(h)(2)(A).
107
See INA § 245(h)(2)(B).
16
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

APPENDIX A
SPECIAL IMMIGRANT JUVENILE PETITION

Cause No. ______________

In the Interest of: § IN THE DISTRICT COURT


§
§ _____JUDICIAL DISTRICT
, a Child §
§ HARRIS COUNTY, TEXAS
§
§

PETITION IN SUIT AFFECTING PARENT-CHILD RELATIONSHIP

1. Discovery
Discovery in this case is intended to be conducted under level 2 of Rule 190 of the Texas Rules of Civil
Procedure.
2. Parties
This suit is brought by , Petitioner. is a minor child, age in the custody of
.
3. Petitioner’s Relationship to the Respondent
The Petitioner, , is the agency (or individual) that has had the actual care, control and possession
of this child for at least six months preceding the filing of this petition. The child has been placed with the Petitioner
by the Department of Homeland Security, and Catholic Charities has been given complete responsibility for his care
and welfare. The Petitioner has been authorized by the Department of Homeland Security to make decisions
regarding the health and welfare of the child. He/She has been in the Petitioner’s care since .
4. Standing
The Petitioner has standing to bring this suit under Sec. 102.003 of the Texas Family Code in that the Petitioner
is an authorized agency. Although the child, an immigrant juvenile, was originally in the custody of the Department
of Homeland Security (DHS), care, control and possession of the child was placed with the Associated Catholic
Charities in , where the child has remained since that time.
5. Jurisdiction
No court has continuing jurisdiction of this suit, or of the child the subject of this suit.
6. Child
The following child is the subject of this suit:
Name: XXXXXXXXX
Sex: Male (Female)
Birth Date:
County of Residence:

7. Persons Entitled To Citation


The following persons are entitled to citation:
The mother of the child, the subject of this suit is .

17
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

The whereabouts of XXXXXXXXX, Respondent’s mother are unknown. She has not been seen since
. She was last seen in . Her last known address is:

The International Red Cross has attempted to find her and contact her. She has not been found despite numerous
efforts.
Service by publication is necessary for the reasons stated above. See also attached letters from
showing why service by publication is necessary.

The father of the child is . He is deceased. He was killed.died in


in .
No service is possible in that the Respondents father is deceased.
8. Court-Ordered Relationships
There are no court-ordered conservatorships, court-ordered guardianships or other court-ordered relationships
affecting the child, the subject of this suit.
9. UCCJEA Information (Sec. 152.209)
The child presently resides with the . He has resided there since . Prior to that
time he resided in with from to ..
10. Long-Arm Jurisdiction
XXXXXXXXX, named above, is a non-resident entitled to citation. The Child resides in Texas as a result of the
acts or directives of .
11. Health Insurance Information
Information required by Section 154.181(b)(i) is provided in the statement attached.
12. Property
No property of any consequence is owned or possessed by the child, the subject of this suit.
13. Abuse and Abandonment of Child
The child, the subject of this suit, has been abandoned, neglected and abused. GIVE A FEW BASIC FACTS
HERE.
14. Best Interest of the Child
It is not in the best interests of this child to be returned to , his country of nationality and last habitual
residence. Petitioner, on final hearing, should be appointed Sole Managing Conservator of the child, with all the
rights and duties of a non-parent sole managing conservator.
15. Long Term Foster Care
The child should be declared dependent on the juvenile court in Harris County and deemed eligible for long term
foster care due to abuse, abandonment and neglect.
16. Prayer
Petitioner prays that citation and notice issue as required and that the Court enter its orders in accordance
with the allegations contained in this petition.

18
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

Petitioner requests that the Court declare the child, the subject of this suit, XXXXXXXXX dependent on this
court and eligible for long term foster care due to abuse, neglect and abandonment.
Petitioner prays that this Court find that it is not in the child’s best interest to be returned to
, the country of his/her nationality and last habitual residence.
Petitioner prays that appropriate orders be made for conservatorship of the child.
Petitioner prays for general relief.

Respectfully submitted,

______________________________
Attorney for Petitioner
SBN:

19
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

APPENDIX B
SPECIAL IMMIGRANT JUVENILE ORDER

NO.

IN THE INTEREST OF § IN THE DISTRICT COURT


§
TH
XXXXXXXXX, § JUDICIAL DISTRICT
§
A CHILD § HARRIS COUNTY, TEXAS

ORDER IN SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP AND FOR DECLARATION OF


DEPENDANCY
On the Court heard this case.
Appearances
Petitioner, , by and through their/his/her attorney, , appeared in person and
through attorney of record and announced ready for trial.
XXXXXXXXX, the presumed/biological/alleged father of the child, is deceased.
XXXXXXXXX, the biological mother of the child, was given notice of this suit by publication and did not
otherwise appear.
Also appearing was , appointed by this court to represent XXXXXXXXX who was served by publication.
Jurisdiction
The Court, after examining the record and the evidence and argument of counsel, finds that it has jurisdiction of this
case and of all the parties and that no other court has continuing, exclusive jurisdiction of this case. All persons entitled
to citation were properly cited. The Court further finds that the child, the subject of this suit, has been in the custody of
since .
Jury
A jury was waived, and all questions of fact and of law were submitted to the Court.
Record
The making of a record of testimony was made by the official court reporter of the State District Court,
Houston, Harris County, Texas.
Child
The Court finds that the following child is the subject of this suit:

Name: XXXXXXXXX
Sex: Male/Female
Birthplace:
Birth date:
Present residence: with Petitioner
Home state: Texas

Findings
The Court finds the child, the subject of this suit and a dependent of this court, has been abandoned, neglected
and abused. The Court further finds that the father was murdered in 1990 when the child was one year of age, that
20
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

the mother of the child has disappeared and has not been seen or heard from since 2002 despite attempts by the
International Red Cross and Catholic Charities to locate her, that the child was abused by the authorities in ,
his/her country of birth, and that the child is eligible for long term foster care due to the abandonment, abuse and
neglect.
The Court further finds that it is not in the child’s best interest to be returned to , his/her country of
birth and his/her last habitual residence.
Conservatorship
The Court finds that the following orders are in the best interest of the child.
IT IS ORDERED that is appointed Sole Managing Conservator of the following child:
XXXXXXXXX.
IT IS ORDERED that, at all times, , as a sole managing conservator, shall have the following rights
and duties:
1. the right to have physical possession and to direct the moral and religious training of the child;

2. the duty of care, control, protection, and reasonable discipline of the child;

3. the duty to provide the child with clothing, food, shelter, education, and medical, psychological, and dental
care;

4. the right to consent for the child to medical, psychiatric, psychological, dental, and surgical treatment and
to have access to the child's medical records;

5. the right to receive and give receipt for payments for the support of the child and to hold or disburse funds for
the benefit of the child;

6. the right to the services and earnings of the child;

7. the right to consent to marriage and to enlistment in the armed forces of the United States;

8. the right to represent the child in legal action and to make other decisions of substantial legal significance
concerning the child;

9. except when a guardian of the child's estates or a guardian or attorney ad litem has been appointed for the
child, the right to act as an agent of the child in relation to the child's estate if the child's action is required by a state,
the United States, or a foreign government;

10. the right to designate the primary residence of the child and to make decisions regarding the child's education.

11. the right to receive information concerning the health, education, and welfare of the child;

12. the right of access to medical, dental, psychological, and educational records of the child;

13. the right to consult with a physician, dentist, or psychologist of the child;

14. the right to consult with school officials concerning the children's welfare and educational status, including
school activities;

21
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

15. the right to attend school activities;

16. the right to be designated on the child's records as a person to be notified in case of an emergency;

17. the right to manage the estate of the child to the extent the estate has been created by the parent or the
parent's family.

18. the duty to support the child, including providing the child with clothing, food, shelter, and medical and
dental care not involving an invasive procedure;

19. the right to consent for the child to medical and dental care not involving an invasive procedure; and

20. the right to consent for the child to medical, dental, and surgical treatment during an emergency involving
immediate danger to the health and safety of the child;

IT IS ORDERED that shall, each twelve months after the date of this order, file with the
Court a report of facts concerning the child's welfare, including the child's whereabouts and physical condition.
The Court finds that because the biological mother’s whereabouts are unknown and the presumed father is
deceased there is no need to make further orders regarding the conservatorship of the child.
Required Information
The information required for each party by section 105.006(a) of the Texas Family Code is as follows:

Name:
Social Security number: N/A
Driver's license number and issuing state:
Current residence address:
Mailing address: same
Home telephone number:
Name of employer:
Address of employment:
Work telephone number:

Name: XXXXXXXXX
Social Security number:
Driver's license number and issuing state:
Current residence address:
Mailing address:
Home telephone number:
Name of employer:
Address of employment:
Work telephone number:

Name: XXXXXXXXX
Social Security number:
Driver's license number and issuing state:
Current residence address:
Mailing address:
Home telephone number:
Name of employer:
Address of employment:
Work telephone number:

22
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

Required Notices
EACH PERSON WHO IS A PARTY TO THIS ORDER IS ORDERED TO NOTIFY EACH OTHER PARTY,
THE COURT, AND THE STATE CASE REGISTRY OF ANY CHANGE IN THE PARTY'S CURRENT
RESIDENCE ADDRESS, MAILING ADDRESS, HOME TELEPHONE NUMBER, NAME OF EMPLOYER,
ADDRESS OF EMPLOYMENT, AND WORK TELEPHONE NUMBER. THE PARTY IS ORDERED TO GIVE
NOTICE OF AN INTENDED CHANGE IN ANY OF THE REQUIRED INFORMATION TO EACH OTHER
PARTY, THE COURT, AND THE STATE CASE REGISTRY ON OR BEFORE THE 60TH DAY BEFORE THE
INTENDED CHANGE. IF THE PARTY DOES NOT KNOW OR COULD NOT HAVE KNOWN OF THE
CHANGE IN SUFFICIENT TIME TO PROVIDE 60-DAY NOTICE, THE PARTY IS ORDERED TO GIVE NOTICE
OF THE CHANGE ON OR BEFORE THE FIFTH DAY AFTER THE DATE THAT THE PARTY KNOWS OF THE
CHANGE.
THE DUTY TO FURNISH THIS INFORMATION TO EACH OTHER PARTY, THE COURT, AND THE
STATE CASE REGISTRY CONTINUES AS LONG AS ANY PERSON, BY VIRTUE OF THIS ORDER, IS UNDER
AN OBLIGATION TO PAY CHILD SUPPORT OR ENTITLED TO POSSESSION OF OR ACCESS TO A CHILD.
FAILURE BY A PARTY TO OBEY THE ORDER OF THIS COURT TO PROVIDE EACH OTHER PARTY,
THE COURT, AND THE STATE CASE REGISTRY WITH THE CHANGE IN THE REQUIRED INFORMATION
MAY RESULT IN FURTHER LITIGATION TO ENFORCE THE ORDER, INCLUDING CONTEMPT OF COURT.
A FINDING OF CONTEMPT MAY BE PUNISHED BY CONFINEMENT IN JAIL FOR UP TO SIX MONTHS, A
FINE OF UP TO $500 FOR EACH VIOLATION, AND A MONEY JUDGMENT FOR PAYMENT OF
ATTORNEY'S FEES AND COURT COSTS.
Notice shall be given to the other party by delivering a copy of the notice to the party by registered or certified mail,
return receipt requested. Notice shall be given to the Court by delivering a copy of the notice either in person to the clerk
of the Court or by registered or certified mail addressed to the clerk. Notice shall be given to the state case registry by
mailing a copy of the notice to State Case Registry, Central File Maintenance, P.O. Box 12048, Austin, Texas 78711-
20448.
Warnings
WARNINGS TO PARTIES: FAILURE TO OBEY A COURT ORDER FOR CHILD SUPPORT OR FOR
POSSESSION OF OR ACCESS TO A CHILD MAY RESULT IN FURTHER LITIGATION TO ENFORCE THE
ORDER, INCLUDING CONTEMPT OF COURT. A FINDING OF CONTEMPT MAY BE PUNISHED BY
CONFINEMENT IN JAIL FOR UP TO SIX MONTHS, A FINE OF UP TO $500 FOR EACH VIOLATION, AND A
MONEY JUDGMENT FOR PAYMENT OF ATTORNEY'S FEES AND COURT COSTS.
FAILURE OF A PARTY TO MAKE A CHILD SUPPORT PAYMENT TO THE PLACE AND IN THE
MANNER REQUIRED BY A COURT ORDER MAY RESULT IN THE PARTY'S NOT RECEIVING CREDIT FOR
MAKING THE PAYMENT.
FAILURE OF A PARTY TO PAY CHILD SUPPORT DOES NOT JUSTIFY DENYING THAT PARTY
COURT-ORDERED POSSESSION OF OR ACCESS TO A CHILD. REFUSAL BY A PARTY TO ALLOW
POSSESSION OF OR ACCESS TO A CHILD DOES NOT JUSTIFY FAILURE TO PAY COURT-ORDERED
CHILD SUPPORT TO THAT PARTY.
23
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

Attorney's Fees
IT IS ORDERED that attorney's fees are to be borne by the party who incurred them.
IT IS ORDERED that costs of court are to be borne by the party who incurred them.
Clarifying Orders
Without affecting the finality of this Order in Suit Affecting Parent-Child Relationship, this Court expressly
reserves the right to make orders necessary to clarify and enforce this decree.

Relief Not Granted


IT IS ORDERED that all relief requested in this case and not expressly granted is denied.
Date of Order
SIGNED on

JUDGE PRESIDING

APPROVED AND CONSENTED TO AS TO BOTH FORM AND SUBSTANCE:

Petitioner

APPROVED AS TO FORM ONLY:

By:
State Bar No.
Attorney for Petitioner

By:
xxxxxxxxxxxxxxxxxxx
State Bar No.

By:
Attorney Ad Litem for XXXXXXXXX=

24
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

APPENDIX E.
SAMPLE LETTER REQUESTING CONSENT FROM FEDERAL GOVERNMENT TO ENTER STATE
COURT PROCEEDINGS

February 10, 2006 Via Federal Express


No. 8512 9964 8174
Mr. John J. Pogash
National Juvenile Coordinator
U.S. Immigration and Customs Enforcement
Office of Detention and Removal Operations
801 I Street, N.W., Suite 800
Washington, D.C. 20536

Request for Consent to SIJ


&
AGE OUT EXPEDITE REQUEST

RE: Xxxx, DOB 4/15/1988, AXXXXXXXXXXXXX


(Will turn 18 years old April 15, 2006)

Dear Mr. Pogash:

Please consider this letter as Xxxx’s request to the Department of Homeland Security for specific consent to
state court jurisdiction to consider a dependency order as required for approval of a special immigrant juvenile status
visa under INA §101(a)(27)(J)(iii)(I).

Xxxx is currently in the “legal or constructive custody” of the Attorney General, and requires such consent to
pursue special immigrant juvenile (“SIJ”) status. 8 U.S.C. § 1101(a)(27)(J). Pursuant to the Immigration and
Nationality Act (“the Act”), the DHS has authority to grant such a request. See F.L. v. Tommy Thompson, 293 F.
Supp. 2d 86, 88 (Dist. D.C. 2003). Because xxxx will be eligible for SIJ status if a dependency order is issued and
the dependency proceeding would be in his best interest, such consent should be granted.

Xxxx asks that his request be expedited because he will age out under Mississippi law, where he is currently
detained, when he turns 18 years old on April 15, 2006. If consent is not given before then, he may not be able to
obtain an appropriate state court order.

Legal Background

Under 8 U.S.C. § 1101(a)(27)(J), XXXX qualifies for Special Immigrant Juvenile Status if:

1. A United States juvenile court either declares him dependent on the court or legally commits him to or places
him in the custody of an agency or department of the state, i.e. legal guardianship proceedings;

2. A United States juvenile court declares him eligible for long-term foster care do to abuse, neglect, or
abandonment;

3. An administrative or judicial body determines that it is not in his best interests to return to the country of
Haiti.

A 1997 amendment to the Act requires the Attorney General’s consent before any child in the actual or
constructive custody of the Attorney General may be subject to a juvenile court’s jurisdiction to determine custody or
placement status. 8 U.S.C. § 1101(a)(27)(J)(iii)(I). The DHS is the agency with the authority to grant such consent.
See F.L. v. Tommy Thompson, 293 F. Supp. 2d 86, 88 (Dist. D.C. 2003).

30
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

Procedural History

Xxxx applied for asylum and withholding before the Immigration Judge, who denied relief. The BIA also
denied relief. At the Fifth Circuit, the parties agreed that the matter should be remanded to the BIA for briefing and
an unopposed motion to that effect is currently pending and expected to be granted shortly. Bonhomme v. Gonzales,
No. 05-60482 (5th Cir. filed XXX 2005).

Statement of Facts

The Immigration Judge found that XXXX was a credible witness. CAR108 62. Xxxx credibly testified that he
was born in Haiti on XXX, 1988 and attended school there for approximately one month. CAR 58, 112, 174, 184,
435. He testified that he was separated from his family at the age of seven, and that after two years in an orphanage,
from the age of ten, he lived on the streets of Port Au Prince, Haiti. CAR 58. He does not know where his family
members are, and he has not seen either his mother or his father since he was seven years old. CAR 113, 114, 194.

Xxxx credibly testified that while he was living on the street, the police beat him regularly, as often as three
times a week. Their methods included: grabbing him from behind; whippings with electric cords; hitting him with
batons; pushing, shoving and hitting him to the ground; kicking him; and throwing sharp objects at him that resulted
in scar-inflicting wounds to his arms as he fled. CAR 59, 61, 117, 118, 124, 139, 142, 178, 184. Because of this
abuse Xxxx fled Haiti and came to the United States. CAR 174, 184, 436, 439.

The Immigration Judge explicitly found that there was a reasonable possibility that Xxxx would be tortured in
Haiti. CAR 70. Xxxx fears death at the hands of the Haitian police because if he is returned to Haiti, he will
perforce return to the streets where the attacks will continue. CAR 124-125, 178, 184, 443.

The Immigration Judge found that the human rights situation in Haiti is poor and that Haitian political and civil
officials commit serious human rights abuses there. CAR 64. The Immigration Judge found that the Haitian
government uses torture and that the most common forms were beating with sticks, fists and belts and that Xxxx’s
experiences were consistent with reports of torture techniques in Haiti. CAR 69. Government abuses include extra-
judicial killings, unnecessary deadly force and excessive force. CAR 64. The Immigration Judge found that health
and education for children was inadequate in Haiti, and that malnutrition of children was a serious problem in Haiti.
CAR 64. The Immigration Judge found that child abuse is a problem in Haiti and that there are many street children
in Port Au Prince. CAR 64. The Immigration Judge found that XXXX would not be able to relocate within Haiti to
avoid harm. CAR 70.

The Immigration Judge found that street children are at risk for “coercive intervention” because of the economic
and social crisis. CAR 65 (citing specifically to CAR 215, World Organization Against Torture for the Committee
on the Rights of the Child, Rights of the Child in Haiti, Geneva 2002).

The record contains other evidence of the dire situation of unaccompanied street children in Haiti, besides the
explicit factual findings made by the Immigration Judge.

Legal Analysis

XXXX Meets the Eligibility Requirements for SIJ Status

DHS should consent to juvenile court jurisdiction when 1) it appears that the juvenile would be eligible for SIJ
status if a dependency order were issued, and 2) the dependency proceeding would be in the best interest of the
juvenile. 8 U.S.C. § 1101(a)(27)(J).

DHS should consent to a Mississippi juvenile court exercising jurisdiction over XXXX, because he is eligible
for SIJ status, and because dependency proceedings would be in his XXXX’s interest.

Xxxx meets all of the eligibility requirements for SIJ status. He is unmarried and under twenty-one years of
age. CAR 435. Moreover, if the DHS grants consent, a juvenile court will almost certainly find that he is dependent

108
“CAR” indicates a reference to the page in the Certified Administrative Record of removal proceedings filed with the Fifth
Circuit by the Dept. of Justice.
31
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

upon the court and eligible for long-term foster care. Eligibility for long-term foster care is found where family
reunification is not a viable option. See 8 C.F.R § 204.11(c).

Xxxx Qualifies as Abandoned

By the time Xxxx was seven years old he had become separated from both of his parents, his father being
arrested, and his mother and he parting ways. From that age on, Xxxx lived on the streets. Shortly after he began
living on the streets, the police took him to an orphanage where he remained for approximately two years. However,
at the age of ten, the facility could no longer care for him and he returned to living on the streets of Port Au Prince,
Haiti. He has never again seen his mother. It is clear that family reunification is no longer a viable option for Xxxx,
and that he has de facto been abandoned since age seven or at the latest age 10. See 8 C.F.R § 204.11(a).
These facts show that Xxxx qualifies as “abandoned” under Mississippi law as well since he was left without
provision for reasonable and necessary care or supervision. See Mississippi Code (Annotated) § 93-27-102.

Dependency Proceedings are in Xxxx’s Best Interest

Dependency proceedings are in Xxxx’s best interest because it would be extremely dangerous for him to return
to Haiti, his home country. If he returns to Haiti, XXXX will likely face further attacks at the hands of the police that
forced him to flee, (the Immigration Judge specifically found that the police attacked both adults and children who
lived on the streets at CAR 66). Furthermore, because of the violent and dangerous political climate, XXXX has
been separated from his family for the past ten years and has no home to return to in Haiti.

Consent to Juvenile Court Jurisdiction Should be Granted

Because Xxxx is eligible for SIJ status and his best interest would be served by dependency proceedings, he
prays that DHS grant its specific consent to Mississippi juvenile court jurisdiction over Xxxx. Because Xxxx will
turn eighteen on April 15, 2006, he respectfully requests that you expedite and consider this request as soon as
possible.

Yours Sincerely,

Joseph A. Vail, Attorney at Law


Attorney for XXXX, G-28 on file

INDEX
OIL Motion to Remand to BIA;
Certified Administrative Record, 1-534.

32
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

APPENDIX F.
COPY OF SPECIAL IMMIGRANT JUVENILE STATUTORY AUTHORITY

Definition of Special Immigrant Juvenile


INA § 101(a)(27)(J); 8 USCA § 1101(a)27)(J)

an immigrant who is present in the United States--


(i) who has been declared dependent on a juvenile court located in the United States or whom such a court has
legally committed to, or placed under the custody of, an agency or department of a State and who has been deemed
eligible by that court for long-term foster care due to abuse, neglect, or abandonment;
(ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien's
best interest to be returned to the alien's or parent's previous country of nationality or country of last habitual
residence; and
(iii) in whose case the Attorney General expressly consents to the dependency order serving as a precondition to
the grant of special immigrant juvenile status; except that--
(I) no juvenile court has jurisdiction to determine the custody status or placement of an alien in the actual or
constructive custody of the Attorney General unless the Attorney General specifically consents to such jurisdiction;
and
(II) no natural parent or prior adoptive parent of any alien provided special immigrant status under this
subparagraph shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act.

Adjustment of Status for Special Immigrant Juvenile


INA § 245(h); 8 USC § 1255(h)

(h) In applying this section to a special immigrant described in section 101(a)(27)(J) [8 USC § 1101(a)(27)(J)]--
(1) such an immigrant shall be deemed, for purposes of subsection (a), to have been paroled into the United
States; and
(2) in determining the alien's admissibility as an immigrant--
(A) paragraphs (4), (5)(A), and (7)(A) of section 212(a) [8 USC § 1182(a)(4), (5)(A), and (7)(A)] shall not apply,
and
(B) the Attorney General may waive other paragraphs of section 212(a) [8 USC § 1182(a)] (other than
paragraphs (2)(A), (2)(B), (2)(C) (except for so much of such paragraph as related to a single offense of simple
possession of 30 grams or less of marijuana), (3)(A), (3)(B), (3)(C), and (3)(E)) in the case of individual aliens for
humanitarian purposes, family unity, or when it is otherwise in the public interest.
The relationship between an alien and the alien's natural parents or prior adoptive parents shall not be considered
a factor in making a waiver under paragraph (2)(B). Nothing in this subsection or section 101(a)(27)(J) [8 USC §
1101(a)(27)(J)] shall be construed as authorizing an alien to apply for admission or be admitted to the United States
in order to obtain special immigrant status described in such section.

[*Under subsection (a) referenced above]


(a) The status of an alien who was inspected and admitted or paroled into the United States or the status of any other
alien having an approved petition for classification under subparagraph (A)(iii), (A)(iv), (B)(ii), or (B)(iii) of section
204(a)(1) or may be adjusted by the Attorney General, in his discretion and under such regulations as he may
prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such
adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent
residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.

33
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

APPENDIX G.
COPY OF SPECIAL IMMIGRANT JUVENILE REGULATORY AUTHORITY

8 C.F.R. § 204.11

(a) Definitions.

Eligible for long-term foster care means that a determination has been made by the juvenile court that family
reunification is no longer a viable option. A child who is eligible for long-term foster care will normally be expected
to remain in foster care until reaching the age of majority, unless the child is adopted or placed in a guardianship
situation. For the purposes of establishing and maintaining eligibility for classification as a special immigrant
juvenile, a child who has been adopted or placed in guardianship situation after having been found dependent upon a
juvenile court in the United States will continue to be considered to be eligible for long-term foster care.

Juvenile court means a court located in the United States having jurisdiction under State law to make judicial
determinations about the custody and care of juveniles.

(b) Petition for special immigrant juvenile. An alien may not be classified as a special immigrant juvenile unless the
alien is the beneficiary of an approved petition to classify an alien as a special immigrant under section 101(a)(27) of
the Act. The petition must be filed on Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant.

(1) Who may file. The alien, or any person acting on the alien's behalf, may file the petition for special immigrant
juvenile status. The person filing the petition is not required to be a citizen or lawful permanent resident of the United
States.

(2) Where to file. The petition must be filed at the district office of the Immigration and Naturalization Service
having jurisdiction over the alien's place of residence in the United States.

(c) Eligibility. An alien is eligible for classification as a special immigrant under section 101(a)(27)(J) of the Act if
the alien:

(1) Is under twenty-one years of age;

(2) Is unmarried;

(3) Has been declared dependent upon a juvenile court located in the United States in accordance with state law
governing such declarations of dependency, while the alien was in the United States and under the jurisdiction of the
court;

(4) Has been deemed eligible by the juvenile court for long-term foster care;

(5) Continues to be dependent upon the juvenile court and eligible for long-term foster care, such declaration,
dependency or eligibility not having been vacated, terminated, or otherwise ended; and

(6) Has been the subject of judicial proceedings or administrative proceedings authorized or recognized by the
juvenile court in which it has been determined that it would not be in the alien's best interest to be returned to the
country of nationality or last habitual residence of the beneficiary or his or her parent or parents; or

(7) On November 29, 1990, met all the eligibility requirements for special immigrant juvenile status in paragraphs
(c)(1) through (c)(6) of this section, and for whom a petition for classification as a special immigrant juvenile is filed
on Form I-360 before June 1, 1994.

(d) Initial documents which must be submitted in support of the petition.

(1) Documentary evidence of the alien's age, in the form of a birth certificate, passport, official foreign identity
document issued by a foreign government, such as a Cartilla or a Cedula, or other document which in the discretion
of the director establishes the beneficiary's age; and
34
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

(2) One or more documents which include:

(i) A juvenile court order, issued by a court of competent jurisdiction located in the United States, showing that the
court has found the beneficiary to be dependent upon that court;

(ii) A juvenile court order, issued by a court of competent jurisdiction located in the United States, showing that the
court has found the beneficiary eligible for long-term foster care; and

(iii) Evidence of a determination made in judicial or administrative proceedings by a court or agency recognized by
the juvenile court and authorized by law to make such decisions, that it would not be in the beneficiary's best interest
to be returned to the country of nationality or last habitual residence of the beneficiary or of his or her parent or
parents.

(e) Decision. The petitioner will be notified of the director's decision, and, if the petition is denied, of the reasons for
the denial. If the petition is denied, the petitioner will also be notified of the petitioner's right to appeal the decision to
the Associate Commissioner, Examinations, in accordance with part 103 of this chapter.

35
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

APPENDIX H
LIST OF STATE-WIDE IMMIGRATION AGENCIES AND RESOURCES
National Referral Service

National Center for Refugee and Immigrant Children


www.refugees.org
NationalCenter@uscridc.org

The National Center is a recently formed non-profit organization with the goal of
educating pro bono counsel and linking unaccompanied children with immigration legal
assistance needs with pro-bono counsel

Austin/ San Antonio Houston


Center for Legal and Social Justice University of Houston Law Center
School of Law Clinical Legal Programs
St. Mary’s University 100 Law Center
One Camino Santa Maria Houston, Texas 77204-6060
San Antonio, Texas 78228 Phone 713 743 2094
Phone 210-431-2596 Fax 713 743 2195
Fax 210-431-5700 www.law.uh.edu
http://www.stmarytx.edu/law/
Catholic Charities of Dioceses of Greater
Immigration Clinic Houston/ Galveston
University of Texas School of Law Cabrini Center for Immigrant Legal
727 East Dean Keeton Street Assistance
Austin, Texas 78705 2900 Louisiana Street
Phone 512-494-1752 Houston, Texas 77006
http://www.utexas.edu/law/ Phone 713 536 4611
www.catholiccharities.org
Catholic Charities of San Antonio
Immigration Services
2903 W. Salinas
San Antonio, Texas 78207
Phone 210-433-3256
http://www.archdiosa.org/
Dallas El Paso
Human Rights Initiative of North Texas, Las Americas Immigrant Advocacy
Inc. Center
2501 Oak Lawn Avenue 106 E. Yandell
Dallas, Texas, 75219 El Paso, 79902
Phone 214-855-0520 Phone 915-544-5126
http://www.hrionline.org/ Fax 915-544-4041
www.las-americas.org
Catholic Charities of Dallas
5415 Maple Ave, Ste. 400
Dallas, TX 75235
(214) 634-7182

Harlingen
South Texas Pro Bono Asylum
Representation Project (ProBAR)
301 E. Madison Ave.
Harlingen, TX 78550
Tel: (956) 425-9231
Fax: (956) 425-9233

36
Types of Relief: Special
Immigrant Juvenile Status

By Meredith Linsky and Diane Eason, ProBAR, October 2008. Includes materials prepared by Christina Wilkes, Children’s Project
Director at Ayuda, Inc. titled “Application for Special Immigrant Juvenile Status (SIJS).” Presented November 2, 2005 and available
online at: http://www.refugees.org/data/nationalcenter/docs/Christina_Wilkes.ppt
Also includes materials prepared by Edna Yang, Attorney with the Political Asylum Project of Austin presented at a TYLA/ProBAR
Children’s Project training July 14, 2006 and materials prepared by Anne Chandler and Janet M. Heppard for SBOT 32nd Annual
Advanced Family Law Course August 2006.

Overview
„ Special Immigrant Juvenile status is a
remedy under immigration law that allows
undocumented children who have been
abused, abandoned or neglected in the
U.S. or their home country to apply for
lawful p
permanent resident status.
„ INA §101(a)(27)(J)
„ Implicates a mixture of federal immigration
law and state family/juvenile law.

1
History
1
1. 1990: Congress enacted SIJ provisions of the
Immigration and Nationality Act creating a
method for abused, neglected, and abandoned
immigrant children to become LPRs.
2. 1997 Congressional Limitations:
1. Only juveniles deemed eligible for long-term foster
care based on abuse, neglect, or abandonment.
2. Specific and express consent requirements added.
3. 2008: Perez-Olano v. Gonzalez, 248 F.R.D. 248
(C.D. Cal. 2008) U.S. District Court class
action limiting consent requirement.

Eligibility –
8 CFR §204.11(c)
1. Under 21 years of age and unmarried.
2. Must be declared dependent on a juvenile court
(before the age of 18)
3. Deemed eligible by the juvenile court for long-term
foster care due to abuse, neglect or abandonment.
4. Juvenile court must retain jurisdiction, i.e. child
continues to be dependent on the juvenile court and
eligible
g for long-term
g foster care until adjustment
j of
immigration status is complete.
5. Requires judicial or administrative findings not in the
best interest of the child to be returned to country of
nationality or last residence.

2
Required Documents
8 CFR §204.11(d)
„ Evidence of the child’s
child s age
age, birth certificate
certificate,
passport, foreign identity document;
„ Juvenile court order showing court has found
child dependent on court;
„ Juvenile court order showing eligible for long-
term foster care;
„ Evidence of a determination not in child’s
best interest to be returned to country of
nationality or last habitual residence.

The Process
Eligible
g for SIJS

Detained Child Non-Detained

(1) Obtain Specific Consent*


*No longer required

(2) Juvenile Court for SIJS Order

(3) Immigration: File I-360,


I-765, and I-485

Detained Child/Removal Proceedings:


File I-485 with Immigration Judge

3
Specific Consent:
Is it still necessary?
„ In 1997
1997, Congress amended the definition of “Special
Special
Immigrant Juvenile,” by requiring that the Secretary of
DHS (formerly the Attorney General) provide consent to
state court jurisdiction.
„ This applied to children in the actual or constructive
custody of DHS or ORR.
„ Actual Custody: ICE or ORR detention facility.
„ C
Constructive
t ti Custody:
C t d HousedH d iin special
i l ICE or ORR
sponsored foster care setting.
„ If child has been released/reunified child is not in the
custody of the AG.

Specific Consent: Found


Overbroad
„ Consent provision used as a gate-keeping mechanism to ensure children are not
applying
l i simply
i l forf the
th “immigration
“i i ti benefit.”
b fit ”

„ Requesting consent was problematic…took a long time to obtain a decision from DHS
and high denial rates

„ In Perez-Olano v. Gonzalez, 248 F.R.D. 248 (C.D. CA 2008) plaintiffs in class action
lawsuit challenge certain requirements wrt eligibility including need to request specific
consent from DHS for children in federal custody before entering into state court.
„ Litigated by Center for Human Rights and Constitutional Law in Los Angeles

„ U.S.
U S District Court in CA ordered a permanent injunction enjoining DHS from requiring
specific consent before a minor in federal custody can seek a SIJ-predicate order in state
court. (DHS recognizes proscribed authority in letter dated January 30, 2008)

„ Today consent would only be required if state court intervenes to determine custody
(move child from federal custody to state custody).

4
“Juvenile Court”
„ Federal Law defines Juvenile Court as a court in the
United States with jurisdiction under state law to make
determinations about the custody & care of children.
„ 8 CFR §204.11(a)
„ Examples in Texas:
„ Child Welfare Court
„ Child in custody of Texas Department of Protective and Family
Services/ Child Protective Services (TDPFS/CPS)
„ County Court at Law
„ Family Court
„ Probate Court
„ Guardianship Proceedings
„ Non-detained children or children reunified with family members in
U.S.
(Varies by county)

Petitioner: Who has Standing?


„ Federal law does not specify
p y who qualifies
q as custodian for SIJ
purposes
„ Look to Texas Family Code §102.003
„ Governmental entity
„ Authorized agency
„ Licensed child placing agency
„ Person who has had actual care, control, and possession of child
for at least six months
„ Person who is a relative of child within the third degree if child’s
parents are deceased
„ Texas Probate Code §642(a)
„ Any person has the right to commence any guardianship
proceeding
„ Appears very broad – seems to provide more standing than under
Family Code.

5
What to File?
„ Many advocates file a “Suit
Suit Affecting
Parent-Child Relationship”

„ If you file an unfamiliar petition, it may


be rejected by the clerk

„ Samples can be found at the USCRI


website at www.refugees.org

Court: SIJS ORDER


„ The “SIJS
SIJS Order
Order” from the family court
must include the findings needed for the
immigration process.
„ Must include findings re each SIJS
eligibility requirement and include specific
findings of fact to support each
each.
„ Child’s attorney should draft order to
ensure includes all necessary findings.

6
SIJS Order:
Requires Specific Findings

„ Child declared
d l d dependent
d d t on the
th family
f il lawl Court
C t
or child has been placed under the custody of an
agency or department of the state.
„ The child is “eligible for long-term foster care due
to abuse, abandonment or neglect.”
„ It is not in the
h child’s
h ld’ best
b interest to return to
his/her country.
„ The child is unmarried and under the age of 21.

SIJS Order: Must Make Findings


re Each Eligibility Requirement

„ Order must make clear that all the above


findings were made because of “neglect
abuse or abandonment” of the child.

7
“Long Term Foster Care”
„ Determination made by family court that
family reunification is no longer a viable
option.
„ In these cases it is usually expected for the
child to remain in long-term foster care until
age of 21 unless adopted or placed in a
guardianship situation.
„ Must be due to abuse, neglect or abandonment
and not solely for immigration purposes.

Juvenile Court: Challenges


„ Court must retain jurisdiction until the SIJS
petition and application for permanent
residency both are approved.
„ Often requires asking court to extend
jurisdiction beyond 18 years of age.
„ Advocate with have to educate the judges.
„ If child marries, no longer eligible

8
Applying to Immigration
1. File Form I-360 - Petition for Special Immigrant
Juvenile Status - with USCIS.
USCIS
2. File Form I-485 Application to Adjust Status (and
Form I-765 Application for Employment
Authorization if desired).
1. If child not in Removal Proceedings, concurrently file I-360
and I-485.
2. If child in Removal Proceedings, once I-360 approved, file
Form II-485
485 w/ Immigration Court.
Court IJ has sole jurisdiction
to adjudicate adjustment
3. Fee for I-360 is $375 and fee for I-485 is $930 plus
$80 biometric fee.
4. File fee waiver if needed.

Adjustment of Status
„ Inadmissibility issues (INA 212);
„ Special discretionary waivers for SIJ
„ i.e. prostitution, prior deports, committed
fraud to enter US, HIV positive, etc.
„ No need for q qualifying
y g relative with status.
Can be for humanitarian reasons, family
unity, or otherwise in the public interest
„ No public charge inadmissibility ground

9
Adjustment Issues
„ All SIJS applicants are by law deemed to be
paroled and therefore are eligible for
adjustment of status
„ INA §245(h)(1)
„ Do not need to qualify for 245(i) or pay penalty
fee
„ Non-citizens
Non citizens who qualify as SIJ are exempted
from grounds of inadmissibility relate to
unlawful presence
„ INA §237(c)

Revocation of SIJS
„ Becomes 21 before adjusts;
„ Marries;
„ No longer under juvenile jurisdiction;
„ No longer deemed eligible for long term
foster care;
„ Determination made in an administrative or
judicial hearing that it is in “best interest of
the child” to return to parent’s country of
nationality or last habitual residence

10
Limitation to Family
Benefits
„ May not petition for natural parents as
parental rights were terminated.
„ CIS may take the position that this person
cannot petition for natural brothers and
sisters as theyy no longer
g have “common
parent,” which is how immigration law
defines siblings.

Benefits
1. Child receives lawful permanent
residence in the U.S.
2. After five years may naturalize and
receive U.S. citizenship.

11
Resources
• National Children
Children’ss Center (U
(U.S.
S Committee for
Refugees and Immigrants)
• Manuals, sample documents for specific consent
letters, juvenile court proceedings, and packet for
immigration applications.
• http://www.refugees.org/article.aspx?id=1559&sub
m=75&area=Participate&ssm=118#tx
p
• Immigrant Legal Resource Center SIJ Manual
• http://www.ilrc.org/resources/sijs/2005%20SIJS%20
manual%20complete.pdf

Additional Resource
„ Article titled “Immigrant Issues
Affecting Children in Foster Care” by
Janet M. Heppard and Anne Chandler,
University of Houston Law Center, from
the SBOT Advanced Family Law
Training in 2006.

12
The University of Texas School of Law

Presented:
The University of Texas School of Law’s 32nd Annual Conference on Immigration and Nationality Law
October 22-24, 2008
San Antonio, TX

Immigration Relief for Human Trafficking Victims

Erica B. Schommer

Erica B. Schommer
Texas RioGrande Legal Aid
Weslaco, TX

Eschommer@trla.org
956-447-4806

Continuing Legal Education • 512-475-6700 • www.utcle.org


I. Definition of Human Trafficking

Sex trafficking: commercial sex act induced by force, fraud or coercion, or in which the
person performing the act is under age 18. “Commercial sex” means something of value
is being exchanged, although not necessarily with the victim.

Labor trafficking: use of force, fraud or coercion to recruit, transport, harbor, obtain or
employ a person for labor or services in involuntary servitude, debt bondage, peonage or
slavery.

Trafficking occurs with the exploitation of the victim. Victims include people of any
immigration status. Since trafficking involves elements of force, fraud or coercion, it is
often very difficult to identify victims. Be sure to include a few questions in your intake
questionnaire to screen for trafficking. For example, in addition to asking if the person
has ever worked in the U.S., add a couple questions about working conditions in order to
determine whether the person felt free to leave. A sample detailed intake form for human
trafficking is included in the materials.

II. Continued Presence

Only federal law enforcement can request Continued presence (CP). If granted, the
applicant gets an I-94 and employment authorization, normally valid for one year. CP is
designed to stabilize victims and grant them temporary permission to remain in the U.S.
during an investigation. When CP is granted, Health and Human Services is notified and
the person is issued a certification letter. That letter allows the person to access the same
bundle of public benefits as those awarded to refugees. Normally, the turn around time is
about 4-12 weeks and the documents are delivered to the officer who made the CP
request.

III. T Visas

A. Requirements for T Visas

The more permanent immigration remedy for trafficking victims is the T visa, which is
available to trafficking victims who meet the following requirements:
1. Victim of severe form of human trafficking
2. Present in the U.S. on account of human trafficking
3. For victims 15 or over, victim has not refused reasonable requests to
cooperate with law enforcement;
4. Applicant will suffer extreme hardship if returned to home country; and
5. Applicant must be admissible or seek a waiver.

Victim of severe form of human trafficking


Sex trafficking and labor trafficking as defined above constitute severe forms of human
trafficking. See 8 CFR 214.11(a).

1
Present on account of human trafficking
To establish this prong it is not necessary that the victim was brought to the U.S. by the
trafficker. However, the victim has to show why it was not possible to return to his or her
home country after getting away from the traffickers. This can be difficult when years
have passed between when the person got out of the trafficking situation and when the T
visa application is filed. The victim’s affidavit should explain in detail the obstacles to
returning home, including fear of reprisals by the traffickers. See 8 CFR 214.11(g).

Cooperation with law enforcement


What is a reasonable request depends on the specifics of the case. For example, if a
victim is severely traumatized, certain requests for cooperation may not be reasonable.
Minors are technically not required to cooperate by statute, but in practice if a case only
involves minors, a prosecution may be impossible without cooperation.

Unlike U visas, certification is not necessary for a T visa, but form I-194 Supplement B
should be submitted if you can obtain one. If you do not have certification and you are
representing an adult victim, include correspondence with law enforcement that
demonstrates efforts to cooperate and make your client available if applicable. For that
reason, if you arrange interviews by phone, send an email to confirm and print out a copy
to file with the T visa application. See 8 CFR 214.11(h).

Extreme Hardship Factors


The following factors will be considered in making an assessment about extreme
hardship:
• Applicant’s age and circumstances
• Vulnerability to retaliation by traffickers
• Access to U.S. court system to seek redress for trafficking
• Ability of home country to protect victim from traffickers
• Ability to reintegrate in society due to laws/social practices of country that might
penalize victim upon return for having been a victim of trafficking
• Likelihood of re-victimization
• Access to treatment for physical or psychological health needs, especially if
related to trafficking
• Civil unrest or armed conflict in applicant’s country that are likely to affect
applicant’s safety
• Economic hardship is NOT enough

See 8 CFR 214.11(h).

The State Department puts out an annual Trafficking in Persons (TIP) report that has a
section on each country. Those reports are critical to documenting the degree to which a
victim’s home country may be able to protect him or her from the traffickers. In addition
to those reports, you should also get information from organizations working on
trafficking in the country of origin about how successful law enforcement efforts are to

2
combat trafficking. Do research about reintegration. In some societies women and girls
who were trafficked into prostitution are cast out from their communities.

Inadmissibility and Waivers


There are waivers available to waive many of the common grounds of inadmissibility for
T visa applicants. Common inadmissibility issues are:
– Entry without inspection
– Use of false documents
– Prostitution or other criminal activity related to victimization
– Health-related grounds (HIV, tuberculosis)

A waiver is requested on form I-192. The filing fee is $545 and currently cannot be
waived. Again, the fees should be taken into account when deciding when to file
applications for derivatives. If an application is submitted without the I-192, the VSC
will send a RFE requesting the waiver. Due to the high filing fees, applicants may want
to wait to file for derivatives until they have obtained employment authorization through
CP or a T visa.

B. Mechanics of Filing T Visa Application

T visas are adjudicated by the Vermont Service Center. The application is made on form
I-914. There is no cost to file the application and no fee for biometrics. Law
enforcement certifications are done on I-914 Supplement B. The applicant must submit
an I-914 Supplement A for each derivative family member.

T visa applicants can request derivative status for family members


„ If victim under 21, victim’s:
– Spouse
– Children (unmarried, under 21)
– Parents
– Siblings (unmarried, under age 18)
„ If victim over 21, victim’s:
– Spouse
– Children (unmarried, under 21)
For derivatives, USCIS takes the position that it is the age at the time the application is
filed. In addition, the family relationship has to exist at the time that the application is
filed.

For family members outside of the U.S., the Vermont Service Center sends a fingerprint
card with instructions that the derivative member needs to take to a U.S. consulate or
USCIS office abroad for processing. It can be very difficult to arrange those
appointments, transportation, and fees associated with those applications. In some cases,
it may be beneficial to wait to petition for derivatives after the principal has employment
authorization in order to be able to pay all of the fees.

3
C. T Visa Benefits

T visas are valid for 4 years and include employment authorization. Visa holders can
obtain derivative status for family members. USCIS has not issued regulations regarding
adjustment of status. Therefore, while visa holders ought to be able to adjust status at the
end of their visa validity, that is not a reality at this time. The principal and derivative T
visa holders are entitled to access temporary public benefits.

IV. Other Immigration Remedies

U Visas
Trafficking is one of the crimes listed in the Act related to U visas. A U visa may be a
better option for people who may have problems meeting the other requirements for T
visas. For example, a person who escaped a trafficking situation years earlier may have
problems establishing presence on account of trafficking. Also, if federal law
enforcement is not aware of the case, but it has been investigated at the local level, it may
be better to try a U visa and not risk the victim being placed in removal proceedings.

Asylum
T visas are only available to people who were trafficked in the U.S. A trafficking victim
who flees to the U.S. to escape persecution by traffickers is not eligible to seek a T visa.
There is a developing area of case law on trafficking victims as a particular social group.1
Because this area of the law is evolving, you should consult with experts on this issue,
such as the Center for Gender & Refugee Studies for guidance on how to frame the social
group in your particular case.

V. Special Considerations for Cases Involving Criminal Prosecutions

Trafficking cases that involve criminal prosecutions involve many actors. Your client will
be working with law enforcement, prosecutors, and hopefully a case manager and
counselor. It is important to establish from the outset what your role is, both with your
client and with the other service providers. Survivors of trafficking are often very
traumatized so it is also essential that you make referrals for counseling if that has not
been done. If you are representing a person who is likely to testify in a criminal trial, the
T visa application is discoverable. In some cases, the AUSA may ask you not to file the
T visa until after the criminal case is completed for that precise reason. However, it is
often necessary or desirable to file sooner, especially if the victim has family members
abroad who can immigrate as derivatives.

If criminal charges are pending, do not submit a very detailed affidavit from your client.
Because the application is discoverable, your client’s affidavit could be used on cross-
examination to attack credibility if testimony is not completely consistent with the details
in the affidavit. One option is to submit the initial declaration given to law enforcement

1
For a detailed discussion of the relevant case developments, see Stephen Knight’s article in Immigration
Briefings available at
http://cgrs.uchastings.edu/documents/cgrs/advisories/Knight_%20ImmigBriefings_Trafficking_Asylum.pdf

4
as your client’s personal statement. In most cases, that will already be an exhibit in
criminal proceedings so it does not provide any additional information to the defense. If
you cannot obtain a prior written statement, or it is insufficient, submit a declaration that
is not too detailed regarding specific information that your client may not be able to recall
at a later date. If the statement is later deemed too vague by the VSC, they will request
additional evidence and you can supplement.

Include any and all documents from the criminal proceedings to support your application,
especially if you do not have a law enforcement certification. Newspaper articles are also
good sources of evidence to demonstrate the existence of criminal proceedings.

VI. Resources

The following websites have additional information that can help you prepare your cases.

Non-profit organizations:
Freedom Network USA
http://www.freedomnetworkusa.org/

Global Rights
http://www.globalrights.org/site/PageServer?pagename=wwd_index_49

HumanTrafficking.org - Clearinghouse of information with links to resources in the U.S.


and abroad.
http://www.humantrafficking.org/

Legal Aid Foundation of Los Angeles – contains links to several comprehensive resource
guides
http://www.lafla.org/clientservices/specialprojects/traffic.asp

U.S. Government Agencies:


U.S. Department of Health & Human Services:
http://www.acf.hhs.gov/trafficking/

U.S. Department of State: Office to Monitor and Combat Trafficking in Persons


http://www.state.gov/g/tip/

U.S. Department of Justice: Office for Victims of Crime


http://www.ovc.gov/help/tip.htm

U.S. Department of Justice: National Criminal Justice Reference Service


http://www.ncjrs.gov/spotlight/trafficking/summary.html

U.S. Department of Labor: International Child Labor Reports


http://www.dol.gov/ILAB/media/reports/iclp/main.htm

5
TRLA Human Trafficking Client Intake & Assessment
Referral information
Date of referral: TRLA Staff:
Referrer’s Name/Telephone:
Referrer’s organization:

Biographic/Family information
First name: Last Name:
Languages:
Age: DOB: Nationality: Ethnicity:
Current address:__________________________________________________
Safe telephone number:________________________________________________
Are you married?____________________
Answer following for spouse and children:
Name DOB Place of birth Is s/he with you? Immigration
If not, where is s/he? status

Trafficking information
What kind of work did you do?
___ Labor – what type:
___ domestic ___ restaurant ___ garment ___ agricultural ___ other_________________
___ Commercial sex act (age when began_____)
___ Other: ____________________________________________________________________

How were you recruited?_________________________________________________________


______________________________________________________________________________
______________________________________________________________________________

Do you know the identity of your traffickers? □ yes □ no


If so, please provide name and location, including nicknames, gang, or affiliations:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________

Approx. Date of escape:


From who/where:

1
Approx. length of servitude:
Were there witnesses or other victims? □ yes □ no

Are you in contact with them? □ yes □ no


If yes, where are they?
If no, can you find them?

Agreed transportation fees: Actual fees:


Other agreed fees: Actual fees:
Agreed Travel Conditions: Actual Travel Conditions:

Agreed employment Actual employment

Agreed Salary/Payment: Actual salary/ payment:


Approx. date of entry: Method of entry:

Documents
Were any of the following taken away from you?
□ identification
□ birth certificate
□ Visa/passport
□ Citizenship documentation from your homeland
□ Child[ren]
Name and address of Person who has these items
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Travel
Did you pay someone to bring you to the US? □ yes □ no
If so, check all that apply:
□ Had to pay more money or work off debt upon arrival
□ Taken to place (city, state) not agreed to
□ Placed in job different from agreement
□ Forced to engage in sexual activity w/ transporter
□ Abused/threatened during the trip
□ Sold/traded to person/group other than person you made arrangement with

Working Conditions, check all that apply:


Date employment began:

2
Name/address of employer/company:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
□ Type of work was different from work you had been promised
□ Pay was less than pay promised
□ Money was deducted from paycheck for food, transportation or housing
□ Work everyday of the week
□ Had to work when sick
□ Hours worked per day:
□ Up to 8
□ 8-12
□ > 12 hours
□ 16 hours
□ Able to quit your job
□ Chained to the area or locked in place where you worked
□ Forced to stand for long periods of time as punishment
□ Could take breaks without asking for permission
□ Could use bathroom while working without asking permission
□ Were you allowed to eat during workday
□ Were you deprived of water
□ Punished if you did not meet a quota
□ Transported to/from work by employer
□ Housing was provided by employer
□ Lived/slept were you worked
□ Forced to participate in sexual acts

Living Conditions, check all that apply:


□ Employer/recruiter arranged for housing
□ Allowed to use bathroom without restrictions
□ Had to ask permission to eat
□ Deprived of food/water
□ Deprived of sleep
□ Deprived of medical attention
□ Free to leave the residence alone
□ Allowed to use telephone
□ Locked in residence

3
□ Allowed to communicate w/ friends or family
□ Forced to clean/cook in home without pay
□ Sleeping arrangements:
□ Bed
□ Floor
□ Cot
□ Outside
□ Closet
□ Crowded conditions
□ No blankets

Abuse (check all that apply)


Someone in home/work threatened you or your family? □ yes □ no
Have you suffered any of following abuse:
□ Slapped
□ Punched
□ Kicked
□ Burned
□ Sexual Assault
□ Rape
□ Sexual harassment
□ Torture
□ Verbal abuse/humiliation
Did you see anyone else being abused? □ yes □ no
If yes, explain:__________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________

FOR WOMEN ONLY


Were you:
□ Forced to take contraceptives
□ Prohibited from taking contraceptives
□ Forced to terminate pregnancy
□ Denied feminine hygiene products/medications

4
Law Enforcement
Have you had any contact with law enforcement? □ yes □ no
If yes, names of agency, officers and dates if known:___________________________________
______________________________________________________________________________
______________________________________________________________________________

If not, are you willing to be interviewed by law enforcement? □ yes □ no

DETAILED QUESTIONS

1. Recruitment
Where and how were you recruited?

Did you sign a contract? □ yes □ no What were the terms of the contract?

Were you sold? □ yes □ no By whom? To whom?

2. Migration (if any)


Were you kidnapped or coerced into migrating? □ yes □ no How?

How did you travel to the U.S.?

Were you inspected by Immigration upon entry? □ yes □ no If so, what documents did you have?

Was a fee paid for your transportation? □ yes □ no By whom and to whom?

3. Identity theft
Did the employer/trafficker use the victim's identity for another purpose? □ yes □ no

4. Working conditions

5
Were you allowed to communicate and become friends with other workers? □ yes □ no

Were you given the option of quitting your job and finding another job? □ yes □ no

5. Coercion
Were you threatened with physical abuse? □ yes □ no

If so, were any weapons involved? □ yes □ no

Did they threaten to call the border patrol? □ yes □ no

Were you verbally abused, humiliated, or degraded? □ yes □ no

Did you ask if you could leave? □ yes □ no


Why?
Why not?

OTHER NOTES:

Assigned staff:
□ Smuggling □ Labor □ Exploitation □ Servile Marriage □ Trafficking □ Insufficient Info
Referred out to:

6
Immigration Remedies for
Vulnerable
Vu e b e Populations
opu o s

Overview of VAWA and T


Visas

Agenda

„ VAWA self
self-petitions
petitions
„ T visas for trafficking victims
„ Questions

1
Violence Against Women Act (VAWA)

„ Originally enacted in 1994 and


reauthorized in 2000 and 2005
„ Created in part as a response to special
vulnerabilities of immigrant domestic
violence victims
„ Similar to family
family-sponsored
sponsored application
application,
but does not require assistance of the
abuser

Who can file a VAWA self-


petition?
1
1. Abused spouses or former spouses of U U.S.
S
citizens or lawful permanent residents
(LPR);
2. Abused children (including step-children) of
a U.S. citizen or LPR;
3. Abused parents of U.S. citizen sons or
d
daughters;
ht andd
4. Non-abused spouses who are parents of a
child abused by a U.S. citizen or LPR
parent, if filing jointly with his or her child’s
petition.

2
VAWA 2005 update

„Abused children or stepchildren who


were eligible to self-petition before the
age of 21 can now file before turning 25
years old as long as the applicant
demonstrates that the abuse was at
l
least one centrall reason”” ffor the
h ddelay
l iin
filing.
See INA § 204(a)(1)(D)

What does the self-petitioner


have to show?
„ Immigration status of the abuser
„ Marriage (or parent/child relationship)
„ Abuse
„ Residence with abuser
„ Good moral character

3
Status of the abuser

„ Is or was a U.S.
U S citizen or LPR
– Copy of birth certificate, LPR card,
certification of citizenship
– Can request during discovery in civil family
law proceedings
„ Can self-petition within 2 years of LPR
abuser losing status as long as loss of
status is related to the abuse

Marriage issues

„ Self petitioner is or was married USC or


Self-petitioner
LPR abuser
„ Includes common law marriage where
recognized by law
„ Marriage must have been entered into
in “good
good faith
faith”
„ Can file up to two years after the
termination of marriage

4
Abuse issues

„ Battery – 1 incident of physical violence


is sufficient
„ Extreme Cruelty – verbal/psychological
abuse that goes beyond normal marital
problems; any other form of domestic
violence that does not involve battery
„ “Any credible evidence” standard
applies – see 8 CFR 204.2(c)(2)(i)

Residence issues
„ Lived with the abuser in the U.S.
(current or prior)
– Tax returns, school records, leases, utility
bills, civil court pleadings, etc.
„ Either lives in the U.S., was subjected to
abuse by LPR or USC spouse in the
U.S., or the abuser was an employee of
the U.S. government or armed forces
stationed abroad

5
Good Moral Character

„ Self-petitioner
Self petitioner is person of GMC for 3
years prior to filing
– Police clearance letters
– FBI/DPS fingerprint check
– Letter from church, community group, etc.
„ Waivers are available if conduct is
related to the abuse

Mechanics of filing

„ Form I-360 filed with Vermont Service Center


with supporting documents
„ If approved, self-petitioner is granted deferred
action and is eligible to apply for a work
permit – category is (c)(31)
„ Can apply for adjustment of status to become
LPR immediately if abuser was USC or renew
deferred action until priority date comes
current

6
VAWA Motions to Reopen
„ VAWA 2005 revised motions to reopen for those
eligible for VAWA cancellation of removal by
eliminating the filing deadline and numerical
limitations for a person physically present in the U.S.
who establishes prima facie eligibility
„ If filing over one year from the date of the order, you
need to show extraordinary circumstance”or extreme
hardship to the self
self-petitioners
petitioners children
„ Filing a VAWA MTR automatically stays an order of
removal until the motion and any appeals are
adjudicated
See INA 240(c)(7)(c)(iv)

T Visas for Victims of


Human Trafficking
„ Sex Trafficking:g Commercial sex act induced byy
force, fraud or coercion, or in which person
performing the act is under age 18.

„ Labor Trafficking: Using force, fraud or coercion to


recruit, harbor, transport, obtain or employ a person
for labor or services in involuntary servitude,
peonage, debt bondage or slavery.

The physical movement of the victim is not required.

The TVPA protects both U.S. citizens and non-citizens.

7
How are victims trafficked?
Force, fraud and coercion are methods used by
traffickers to induce victims into lives of
servitude, abuse
„ Force: Rape, beatings, confinement
„ Fraud: Includes false and deceptive offers of
legitimate employment, marriage, better life
„ Coercion: Threats of serious harm to, or physical
restraint of, any person; any scheme, plan or pattern
intended to cause victims to believe that failure to
perform an act would result in restraint against them;
or the abuse or threatened abuse of the legal
process.

Trafficking v. Smuggling
TRAFFICKING SMUGGLING
„ Must contain element of force „ Person generally consents to be
fraud or coercion (unless victim smuggled
under 18 and engaged in
commercial sex acts
„ Forced labor and/or exploitation „ No actual or implied coercion
„ Trafficking victims are not
violating the law „ Persons are free to leave,
„ Need not involve actual change jobs, etc.
movement of the victim
„ No requirement of crossing an
„ Must involve crossing an
international border
international border
„ Victim must be involved in
labor/services or commercial
sex acts, i.e. must be “working”

8
Trafficking Victims Protection
Act (TVPA)
„ Signed into law October 2000
„ Prior to 2000, no comprehensive law to
protect victims of trafficking or to prosecute
traffickers
„ Made human trafficking federal crime
„ Goals of law:
– Prevent human trafficking overseas
– Increase prosecution of human traffickers in United States
– Protect victims, provide Federal and state assistance to
victims

Immigration remedies for


trafficking victims
„ Continued Presence
„ T visas
„ U visas

9
Continued Presence

„ Temporary permission to remain in the U U.S.


S
„ Parole/deferred action and employment
authorization
„ Must be requested by federal law
enforcement agency
„ D i
Designed d to
t keep
k potential
t ti l victim
i ti iin U
U.S.
S
during investigation
„ Access to public benefits

Requirements for T visa


1. Victim of severe form of trafficking
2
2. Present in U.S.
U S on account of trafficking
3. If 15 or older victim must not have refused
to comply with reasonable requests to
assisting with the investigation and/or
prosecution of the crime (note that
prosecution is not a requirement)
4. A li
Applicant t would
ld suffer
ff extreme
t h
hardship
d hi if
returned to home country
5. Applicant must be admissible or seek a
waiver

10
Cooperation with authorities
„ If victim is severely traumatized
traumatized, requests for
cooperation may not be reasonable
„ A law enforcement certification is helpful, but
it is not a requirement
„ Minors are not required to cooperate by
statute, but in practice it may be difficult to get
relief
li f without
ith t cooperating
ti
„ Save emails/letters to law enforcement to
documents efforts to assist authorities

Extreme Hardship Factors


– Applicant’s
Applicant s age and circumstances
– Vulnerability to retaliation by traffickers
– Access to U.S. court system to seek redress for
trafficking
– Ability of home country to protect victim from
traffickers
– Ability to reintegrate in society due to laws/social
practices of country that might penalize victim
upon return for having been a victim of trafficking

11
Extreme Hardship Factors, cont.

– Likelihood of re-victimization
– Access to treatment for physical or
psychological health needs, especially if
related to trafficking
– Civil unrest or armed conflict in applicant’s
country that are likely to affect applicant’s
applicant s
safety
– Economic hardship is NOT enough

T Visa Benefits

„ Nonimmigrant status for 4 years,


years including
employment authorization
„ Possible to obtain status for derivative family
members
„ Can seek LPR status after 4 years (although
regulations still have not been issued)
„ Access to public benefits for temporary period
of time

12
Special Considerations for T visas

„ If there is a criminal prosecution going


on, you should coordinate with law
enforcement
– Sometimes they may ask you not to file
and/or will not certify until criminal case is
resolved
„ The entire application is discoverable
and anything you submit can be used to
cross-examine your client

Who qualifies as a derivative for


T Visas?
„ If victim under 21
21, victim
victim’s:
s:
– Spouse
– Children (unmarried, under 21)
– Parents
– Siblings (unmarried, under age 18)
„ If victim
ictim o
over
er 21
21, victim’s:
ictim’s
– Spouse
– Children (unmarried, under 21)

13
Admissibility Issues

„ T visa applicants often need to file an I-192 to


waive grounds of inadmissibility
„ Common inadmissibility issues (INA 212(a)):
– Entry without inspection
– Use of false documents
– Prostitution or other criminal activity related to
victimization
– Health-related grounds (HIV, tuberculosis)
„ Waivers are widely available for T visas

Other Immigration Remedies

Asylum –There is a developing area of case


law on trafficking victims as a particular social
group. In addition, in some circumstances
domestic violence can be severe enough to
be considered persecution based on gender.
– One yyear filing
g deadline to overcome
– Documentation/corroboration difficulties
– Law is unsettled

14
Resources

„ Asista: http://www.asistaonline.org/
http://www asistaonline org/
„ National Immigration Project:
http://www.nationalimmigrationproject.or
g/
„ Immigrant
g a Legal
ega Resource
esou ce Center:
Ce e
http://www.ilrc.org/

Questions

For more information contact:


Erica Schommer
Texas RioGrande Legal Aid, Inc.
300 S. Texas Blvd
Weslaco TX 78596
Weslaco,
(956) 447-4806
Eschommer@trla.org

15
The University of Texas School of Law

Presented:
2008 Conference on Immigration and Nationality Law

October 22-24, 2008


San Antonio, Texas

U Visas: Victims of Criminal Activity

Vanna Slaughter LCSW


Catholic Charities of Dallas Inc.
Immigraiton and Legal Services
Dallas, Texas 75235
vanna@ccicsdallas.org
(214)634-7182 Ext 228

Continuing Legal Education • 512-475-6700 • www.utcle.org


U-visas: Victims of Criminal Activity

This training material was supported by Grant No. 2000-WL-VX-K004 awarded by the
Violence Against Women Office, Office of Justice Programs, U.S. Department of Justice.
Points of view in this document are those of the author and do not necessarily represent the
official position or policies of the U.S. Department of Justice.

OVW Approved May, 2005


1
U-visas: Victims of Criminal Activity
Introduction

Some immigrant victims of sexual assault and other crimes may not qualify for VAWA self-
petitioning relief for several reasons. The VAWA self-petition requires the abusive party to be the
spouse, parent or the adult son or daughter of the victim. Many sexual assault assailants are
strangers to their victim. Many more are acquainted but may not be married. A VAWA self-
petitioner’s abuser must also be a U.S. Citizen or a Lawful Permanent Resident and many sexual
assault assailants, even if married to the victim, may not be a Lawful Permanent Resident
(commonly referred to as a greencard holder) or U.S. Citizen. Immigrant victims who do not
qualify for relief under VAWA may still qualify for other types of immigration relief such as a U-visa,
a visa created to provide immigration status to crime victims. This chapter contains an overview U-
visa and lists the requirements for eligibility. A battered immigrant who possibly qualifies for either
a U-visa or other VAWA immigration relief should be referred to an immigration attorney or
advocate with knowledge and experience with these types of cases to assess eligibility.

The Violence Against Women Act of 2000


1
The Violence Against Women Act of 2000 (VAWA 2000) created the U-visa for immigrant victims
of criminal activity. This visa offers temporary lawful status to victims of certain criminal activity if
the victim has suffered substantial physical or mental abuse as a result of the crime.2 The victim
must have information about the crime and a law enforcement official (e.g. police, prosecutor) or a
judge must certify that the victim has been helpful, is being helpful, or is likely to be helpful in
investigating or prosecuting the crime.3 The purpose of this legislation was to:

create a new nonimmigrant visa classification that will strengthen the ability of law
enforcement agencies to detect, investigate and prosecute cases of domestic violence,
sexual assault, trafficking and other crimes … committed against aliens, while offering
protection to victims of such offenses in keeping with the humanitarian interests of the
United States.4

This form of relief gives the applicant temporary legal immigration status and the possibility of lawful
permanent residence. The maximum number of U-visas for available in any one year is 10,000 for
the primary applicants. Spouses and children of U-visas applicants, as well as parents of
applicants who are under 16, may also qualify for a U-visa under certain circumstances. There is no
limit on the number of visas available for these qualifying relatives.5

U-visa Interim Relief

The U-visa regulations were published on September 17, 2007 and went into effect October 17,
2007. For nearly seven years preceding the publication of these regulations, eligible immigrant
victims had no means to apply for U-visas. However, the Department of Homeland Security
created a temporary application process for such eligible immigrants.6 A memorandum on interim

1
Violence Against Women Act of 2000 (hereinafter "VAWA 2000"), enacted as div. B of the Victims of Trafficking and
Violence Protection Act of 2000, Pub.L. No. 106-386, §§ 1501–1513, 114 Stat. 1464 (hereinafter VAWA 2000).
2
INA § 101(a)(15)(U)(i); 8 U.S.C. § 1101(a)(15)(U)(i).
3
INA § 101(a)(15)(U)(i); 8 U.S.C. § 1101(a)(15)(U)(i).
4 th
The Violence Against Women Act of 2000 Section by Section Summary, Vol 146, No. 126, Congressional Record, 106
Congress Second Session, Wednesday October 11, 2000, S10196.
5
INA § 214(o)(3); 8 U.S.C. § 1214(o)(3).
6
See generally Memorandum from Michael D. Cronin, Acting Executive Associate Commissioner, Office of Programs, INS,
to Michael A. Pearson, Executive Associate Commissioner, Office of Field Operations, INS (Aug. 30, 2001) (on file with
Legal Momentum and the National Immigration Project of the National Lawyer’s Guild) (hereinafter Interim Guidance).

2
relief instructed DHS7 to grant work authorization and protection from being removed from the U.S.
(deferred action).8 As a result, many advocates are familiar with the U-visa as interim relief but
unaware of the new application process for the U-visa. It is critical that advocates understand the
difference and not rely on materials about U-visa interim relief anymore. According to the
regulations, DHS was to adjudicate the last interim relief applications on October 17, 2007, thirty
days after the new U-visa regulations were published.9

The purpose of this chapter is to assist advocates in identifying sexual assault, domestic violence,
and other crime victims who may be eligible for U-visa status and to direct them to resources that
can help them prepare their cases. If a potential U-visa applicant is identified, she should be
referred promptly to an immigration attorney or advocate who has experience in these types
of cases. The suggested evidentiary documents in this chapter are meant to be guidelines and not
an exhaustive description of the types of evidence that may be offered to support an application for
a U-visa.

BENEFITS OF THE U-VISA

The U-visa is a four year non-immigrant visa, which means that it is a visa of a limited duration not
intended as permanent status to remain in the U.S. However, Congress also created a provision
10
allowing certain U-visa holders to apply for Lawful Permanent Resident Status (LPR or green card
folder) allowing an immigrant to remain permanently in the United States. This visa creates an
opportunity for immigrant crime victims who may not have any other immigration relief to remain
permanently in the United States.

The U-visa has some critical benefits including allowing those approved to lawfully accept
employment in the United States.11 U-visa holders are automatically granted an employment
authorization document that allows them to accept employment. This ensures immigrant victims
the ability to provide for themselves and safely remain in the United States after being victimized.

U-visa applicants may also include their family members in their application and help them obtain
U-visa status. It allows families to remain together in the United States rather than be separated as
crime victims participate in a criminal investigation process. U-visa applicants may also obtain U-
visas for family members abroad. Beyond family reunification, this may be extremely useful for
women whose family members will assist her in child care and support so that she can
economically empower herself and her family. It may also be an urgent safety precaution as many
immigrant crime victims face threats to their family members in their home country if they cooperate
with law enforcement officials in the United States.

WHO IS ELIGIBLE TO APPLY FOR THE NONIMMIGRANT U-VISA?

In order to be eligible for U-visa status, the immigrant victim must:

1. Have suffered substantial physical or mental abuse as a result of having been a victim of
12
the one or more of the criminal activities listed under INA § 101(a)(15)(U)(iii);

7
These adjudications occur at the VAWA unit of the US Citizenship and Immigration Services, Vermont Service Center.
CiteYates, William R., ”Centralization of Interim Relief for U Nonimmigrant Status Applicants” Department of Homeland
Security, October 8, 2003.
8
Forms of temporary status include deferred action, parole and stays of removal.
9
U.S. Department of Homeland Security, New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant
status, DHS Docket Number UCIS-2006-0069, page 10.
10
In order to be eligible for lawful permanent residence, a U-visa holder must prove that she has been physically present for
three years and that her presence is justified “on humanitarian grounds, to ensure family unity, or is in the public interest.”
INA § 245(m); 8 U.S.C. § 1255(m).
11
8 C.F.R. § 214.14(c)(7).
12
INA § 101(a)(15)(U)(i)(I); 8 U.S.C. § 1101(a)(15)(U)(i)(I).

3
2. Possess information concerning the criminal activity;13

3. Obtain a certification from a law enforcement official, prosecutor, judge, Immigration official,
or other federal or state authority that he or she is being, has been, or is likely to be helpful
to a federal, state, or local investigation or prosecution of a form of listed criminal activity;

4. The criminal activity violated the laws of or occurred in the United States.14

Substantial Physical or Mental Abuse

In order to be eligible for U-visa status, an applicant must have suffered substantial physical or
mental abuse as a result of being a victim of the criminal activity.15 In determining whether the
abuse is substantial, DHS will consider:
• The nature of the injury;
• Severity of the perpetrator’s conduct;
• The severity of the harm suffered;
• The duration of the infliction of harm;
• Permanent or serious harm to appearance;
• And health, physical, and mental soundness.16

DHS will take into account any of all of these factors but no one factor is required.17 DHS has
discretion to include pre-existing conditions as well to consider the severity of the perpetrator’s
conduct even if the actual impact may have been less than intended by the perpetrator. Advocates
and case workers can play a critical role in assisting victims to collect documentation to support this
requirement.

Victim of an enumerated criminal activity

Congress created an extensive list of criminal activities that qualify under the U-visa.

Crimes Covered:

Rape Kidnapping
Torture Abduction
Trafficking Unlawful criminal restraint
Incest False imprisonment
Domestic violence Blackmail
Sexual assault Extortion
Abusive sexual contact Manslaughter
Prostitution Murder
Sexual exploitation Felonious assault
Female genital mutilation Witness tampering
Being held hostage Obstruction of justice
Peonage Perjury
Involuntary servitude Slave trade

This enumerated list provides federal, state, and local officials with guidelines on the types of
federal, state, or local crimes for which victims should be provided certifications. These crimes are
broadly described in order to capture the diversity of state and federal criminal violations. As such,
13
INA § 101(a)(15)(U)(i)(II); 8 U.S.C. § 1101(a)(15)(U)(i)(II).
14
NA § 101(a)(15)(U)(i)(IV); 8 U.S.C. § 1101(a)(15)(U)(i)(IV).
15
INA § 101(a)(15)(U)(i)(I); 8 U.S.C. § 1101(a)(15)(U)(i)(I).
16
8 C.F.R. § 214.14(b)(1).
17
8 C.F.R. § 214.14(b)(1).

4
this list is not an exclusive list and CIS will consider substantially similar criminal activity to fall
within the activity covered.18

The regulations incorporate a broad framework for how a victim can satisfy the requirement that
she be a victim of an enumerated criminal activity. The applicant may be a direct victim or an
indirect victim of the criminal activity. Direct victims include those who are proximately harmed by
the criminal activity.19 This means that a bystander of a criminal activity who is harmed in the
process is also eligible as a direct victim of the criminal activity.20

Indirect victims may also apply for U-visa in specific circumstances. If the criminal activity renders
the primary victim deceased (e.g. murder, manslaughter) or incompetent or incapacitated, the
Spouse, Children under 21 years of age, and if the direct victim is under age 21, the parents and
siblings under age 18 qualify as victims.21

Indirect victims are eligible to file their own applications for a U-visa when the crime is murder or
manslaughter or when the primary victim is under age 16, incapacitated, or incompetent.22 This
provision will allow eligible indirect victims to apply even when the primary victim is or was a U.S.
Citizen or Lawful Permanent Resident (LPR or green card holder) and not in need of her own U-
visa.

Victims must also show that they are not also culpable of the same criminal activity.23 Some U-visa
victim applicants may have previous criminal convictions unrelated to the U-visa qualifying criminal
activity.24 In such cases, the applicant will not be disqualified from applying but may be
inadmissible, or not allowed to be admitted into the United States. If an applicant is inadmissible,
she may qualify for a waiver of inadmissibility. That waiver may be granted with or without a formal
request. Attorneys should file U-visa applications without the waiver of inadmissibility and wait for
DHS to request the waiver. This will allow applicants to avoid additional filing fees when not
required.

Possess Information

The U-visa was enacted to encourage victims of criminal activity to feel safe in reporting crimes
against them without adverse immigration consequences. U-visa applicants must prove that they
25
possess information about the criminal activity. Their knowledge of the criminal activity against
them is a critical component of the U-visa application. Applicants who were under 16 when the
criminal activity occurred or lack the capacity or competence do not have to prove that they
possess information if a parent, guardian, or next friend possesses that information.26 The next
friend is a person who acts in a legal proceeding on behalf of an individual who is incompetent or
incapacitated.27

Obtain certification

18
8 C.F.R. § 214.14(a)(9).
19
8 C.F.R. § 214.14(a)(14).
20
U.S. Department of Homeland Security, New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant
status, DHS Docket Number UCIS-2006-0069, page 12.
21
8 C.F.R. § 214.14(a)(14)(i).
22
8 C.F.R. § 214.14(a)(14)(i).
23
8 C.F.R. § 214.14(a)(14)(iii).
24
8 C.F.R. § 214.14(a)(14)(iii).
25
INA § 101(a)(15)(U)(i)(II); 8 U.S.C. § 1101(a)(15)(U)(i)(II).
26
8 C.F.R. § 214.14(b)(2).
27
8 C.F.R. § 214.14(a)(7).

5
DHS requires all applicants to provide certification from a state, local, or federal agency (Form I-918
Supplement B) in order to grant U-visa status.28 The form requires the law enforcement official,
judge, or other authorized state, local, or federal employee to certify that the applicant has been, is
being, or is likely to be helpful and that the applicant is a victim of a qualifying criminal activity. The
certification form also requires the government signatory to demonstrate their authority as a
supervisory or designated agent to sign on behalf of their department and that their agency is
eligible to certify.29

The requirement that an applicant “has been helpful, is being helpful or is likely to be helpful”30
includes past, present, and future helpfulness. Congress adopted this approach to ensure that
certifications were not limited to cases in which prosecutions were underway. Prosecution could not
occur if victims were not given protection from deportation and intimidation by crime perpetrators
that kept victims from reporting crimes and participating with investigations of criminal activity
whether or not the case was ultimately prosecuted or a conviction obtained. For this reason, victims
were granted access to U-visa protection very early after reporting crimes. The U-visa is available
to an individual crime victim who is “helpful, was helpful, or will be helpful” in the investigation or in
the prosecution of criminal activity. Whether or not cases move forward in the criminal justice
system is complex. A key congressional goal is to encourage victims to come forward and report
crimes and to secure their assistance in criminal investigations, not only prosecutions. For this
reason, U-visas are available to victims regardless of whether he or she serves as a witness,
whether the investigation or prosecution results in a conviction, when there is an investigation of
criminal activity that has not yet or does not result in a prosecution, when the criminal case is
dismissed, and when the case is initiated and the perpetrator evades services.

In assessing how helpful one has to be, advocates should understand some critical clarifications.

► The criminal activity does not have to be prosecuted.


► If prosecuted, there is no requirement that the prosecuted criminal activity is a
qualifying criminal activity enumerated for U visa applicants
► The perpetrator need not be convicted of any criminal activity.

Though it is not required that the case be prosecuted, the applicant must continue to cooperate
31
through the duration of the U-visa status. If the case is prosecuted and the victim is perceived not
to be helpful, the law enforcement agent may contact DHS with this information and the U-visa may
be revoked. It is critical for victims who are reporting criminal activity to understand that although
they can obtain U-visa status based on reporting criminal activity, their helpfulness does not end
with the initial report of the criminal activity.

Though the certification is mandatory in U-visa applications, many different agencies qualify as
certifying agencies eligible to sign the certification form. The eligible agencies and individuals
include32:

► Federal, state, and local law enforcement agencies (e.g. police, sheriffs, Assistant U.S.
attorneys, federal marshals)
► Federal, state, and local prosecutors
► Federal, state, and local judges
► Child Protective Services
► Equal Employment Opportunity Commission
► Department of Labor

28
8 C.F.R. 214.14(c)(2)(i).
29
8 C.F.R. 214.14(c)(2)(i).
30
INA § 101(a)(15)(U)(i)(III); 8 U.S.C. § 1101(a)(15)(U)(i)(III).
31
8 C.F.R. 214.14(b)(3).
32
8 C.F.R. 214.14(a)(2).

6
► Other Federal, state, and local Investigative Agencies

The certification must be signed by a supervisor or a person designated by the supervisor.33 There
are very few jurisdictions that had any established protocol at the time the U-visa regulations were
issued. As a result, the initial applicants may encounter law enforcement or other government
agencies that lack the understanding or protocols to respond to certification requests. It will be
critical for advocates to work with law enforcement, prosecutors, and other government agencies
(e.g. EEOC, labor or child abuse investigators) to understand the role of the certification and help
them to establish procedures and protocols that encourage signing of certifications.

Violated the laws of or occurred in the United States

The final requirement is that the criminal activity either violated the laws of the United States or
34
occurred in the United States. DHS has defined the United States broadly to include all of the
following:

► Indian land including any Indian reservation within United States jurisdiction, dependant
Indian communities, and Indian allotments35
► Military installations including transportation (vessels, aircrafts) under Department of
Defense jurisdiction or military control or lease36
► United States territories including American Samoa, Swain Islands, Bajo Nuevo (the
Petrel Islands), Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman
Reef, Midway Atoll, Navassa Island, Northern Mariana Islands, Palmyra atoll, Seranilla
Bank, and Wake Atoll.37
► U.S. territories include Guam, Puerto Rico, and the U.S. Virgin Islands38

Criminal activity violating the laws of the United States occurring outside the United States include
any criminal activities described in federal statutes that extend extraterritorial jurisdiction.39 Any
activity that would violate the laws of the United States but that takes place abroad would not
satisfy this requirement.

U VISAS FOR CERTAIN FAMILY MEMBERS OF THE CRIME VICTIM

U-visas are also available for family members of the direct or indirect victims of the criminal
activities. A U-visa victim applicant can include or later add to the U visa application, petitions for
her family members. For those over age 21, family members include the spouse or children.40 For
victims under age 21, family members include the spouse, children, parents, and unmarried siblings
under age 18.41

Spouses and children of U-visa applicants as well as parents of U-visa applicants who are under
the age of 16 can also receive U-visas if:
• they can demonstrate that receipt of the visa is necessary to avoid extreme hardship; or
• a government official certifies that the investigation or prosecution would suffer without the
assistance of the spouse, child, or parent.

33
8 C.F.R. 214.14(a)(3).
34
INA § 101(a)(15)(U)(i)(IV); 8 U.S.C. § 1101(a)(15)(U)(i)(IV).
35
8 C.F.R. 214.14(a)(4).
36
8 C.F.R. 214.14(a)(6).
37
8 C.F.R. 214.14(a)(11).
38
INA § 101(a)(38); 8 U.S.C. § 1101(a)(38).
39
8 C.F.R. 214.14(b)(4).
40
INA § 101(a)(15)(U)(ii); 8 U.S.C. § 1101(a)(15)(U)(ii).
41
INA § 101(a)(15)(U)(ii); 8 U.S.C. § 1101(a)(15)(U)(ii).

7
There is no cap on the number of U-visas that can be issued to the spouses, children or parents of
U-visa recipients.42 A sibling’s age is determined as of the date when the sibling’s U-visa
application is filed.43 Family members who received interim relief and are no longer meet the age
criteria, are still eligible under the U-visa statute and should apply based on those requirements.44
Family members who are perpetrators of the crime are not eligible. Family members also include
children who are born after the application is approved as long as an additional application is filed
on their behalf.45

Interim Relief Holders

Many victims who filed for and were eligible for U-visas were granted interim relief prior to the
release of U-visa regulations. Those with interim relief will need to supplement their U-interim relief
application by filing the U-visa application form and any additional evidence they may have by April
14, 2008.46 DHS has the discretion to reevaluate the status of any interim relief holders if they do
not apply for a U-visa by this deadline.47 Interim relief holders are not required to provide a new
certification. The certification filed along with the victim’s interim relief request is deemed to meet
the certification requirement under the U-visa regulations.48 Previously submitted certifications from
interim relief applications will qualify for those who file by April 14, 2008.49 For the purposes of
applying for Lawful Permanent Resident status (green card), an interim relief holder’s U-visa status
once approved will be retroactive to the grant of interim relief.50 Once regulations governing access
to lawful permanent residency for U-visa holders are issued, victims with U interim relief or a U-visa
for over three years will be immediately eligible to apply for permanent residence.

Removal Proceedings

Many potential U-visa applicants may be or have been in immigration removal proceedings, which
take place in immigration court. They begin with a document called a Notice to Appear. This form
if in the applicant’s possession will help advocates to identify for a victim’s immigration attorney that
a potential applicant has had a case in removal proceedings. It is critical that any attorney working
with the victim know this information.

Victims who are currently still in removal proceedings or in detention may apply for a U-visa. An
51
attorney can assist an applicant in applying for a motion to terminate removal proceedings that
would end the applicant’s case in removal proceedings. Family members who are eligible to apply
for U-visas are also eligible to terminate their removal proceedings.52 Those who already have a
final removal order may file a motion to stay their removal.53 This would prevent them from being
removed from the United States while their U-visa application is pending. After the U-visa is
approved, any final order the U-visa holder has will be effectively cancelled.54 However, if a U-visa

42
INA § 214(o); 8 U.S.C. § 1214(o).
43
8 C.F.R. 214.14(f)(4).
44
INA § 101(a)(15)(U)(ii); 8 U.S.C. § 1101(a)(15)(U)(ii).
45
8 C.F.R. 214.14(f)(4)(i).
46
U.S. Department of Homeland Security, New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant
status, DHS Docket Number UCIS-2006-0069, page 12.
47
U.S. Department of Homeland Security, New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant
status, DHS Docket Number UCIS-2006-0069, page 12.
48
8 C.F.R. 214.14(c)(1).
49
U.S. Department of Homeland Security, New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant
status, DHS Docket Number UCIS-2006-0069, page 10.
50
8 C.F.R. 214.14(c)(6); 8 C.F.R. 214.14(f)(6)(i).
51
8 C.F.R. 214.14(c)(1)(i); 8 C.F.R. 214.14(f)(2)(i).
52
8 C.F.R. 214.14(c)(1)(i); 8 C.F.R. 214.14(f)(2)(i).
53
8 C.F.R. 214.14(c)(1)(ii); 8 C.F.R. 214.14(f)(2)(ii).
54
8 C.F.R. 214.14(c)(5)(i); 8 C.F.R. 214.14(f)(6).

8
is denied, the applicant may be reissued a Notice to Appear and once again placed in removal
proceedings.55

CONFIDENTIALITY AND CREDIBLE EVIDENCE STANDARD

Confidentiality: As with other types of cases under the Violence Against Women Act, DHS is
required to keep all information about U-visa applications confidential.56 They cannot release
information about the existence of a case to any person who is not authorized to access that
information for a legitimate law enforcement purpose. Furthermore, if the perpetrator of the crime
or any of his or her family members provides information to DHS about the crime victim, DHS
cannot rely solely upon that information to make an adverse decision or any other case the victim
may be involved in (e.g. removal action). Further, DHS is precluded from relying on information
provided by the abuser or his family members to initiate or take any part of an enforcement action
against the victim57 on the victim’s U-visa case.

Credible Evidence Standard: As with petitions filed under VAWA, DHS is required to consider “any
credible evidence” when deciding U-visa cases and applications for adjustment of status
58
(permanent residence) based on the U-visa provisions. DHS is prohibited from requiring one
specific type of evidence in support of the application and must accept “any credible evidence”
submitted to support each requirement. The credible evidence standard was first created by the
Violence Against Women Act for battered spouse waiver, VAWA self-petition and VAWA
cancellation of removal cases recognizing that victims of domestic violence and other violent crimes
may have difficulty obtaining certain types of evidence.59

WAIVER OF INADMISSIBILITY

There are several red flag issues that can make an applicant for any immigration application
inadmissible into the United States. It is extremely important that all victims who may qualify for a
U-visa or another form of immigration relief be screened as early as possible to identify red flags.
Any red flags could complicate their immigration case and therefore require representation by an
immigration attorney experienced in working on violence against women cases. However, the U-
visa application process allows various waivers for these inadmissibility factors. The U-visa
provisions include several waivers for inadmissibility. Waivers are not available for those who have
60
committed Nazi genocide, torture, torture, or extra judicial killings. Those who have committed
violated or dangerous crimes and security-related crimes will only be granted waivers for
extraordinary circumstances.61 For all other grounds of inadmissibility, including those who enter
the U.S. unlawful, waivers are available if it is the public or national interests for DHS to grant a
waiver to the U-visa victim.62

ADJUSTMENT OF STATUS

If a U-visa holder has been physically present in the United States for three years after being
granted U-status, he or she may apply for adjustment of status to lawful permanent residence (a
“green card”).63 The applicant must demonstrate that lawful permanent residency is justified on
humanitarian grounds, to ensure family unity, or because it is in the public interest.64 Applicants

55
8 C.F.R. § 214.14(c)(5)(ii); 8 C.F.R. § 214.14(f)(6)(iii).
56
IIRAIRA of 1996 § 384, 8 U.S.C. § 1367 (2001).
57
For full discussion, see Confidentiality chapter.
58
8 C.F.R. § 214.14(c)(4); 8 C.F.R. 214.14(f)(5).
59
See INA § 204(a)(1)(J); 8 U.S.C. § 1154(a)(1)(J).
60
INA § 212(d)(14), 8 U.S.C. § 1182(d)(14).
61
8 C.F.R. § 212.17(b)(2).
62
8 C.F.R. § 212.17(b)(1)
63
INA § 245(m)(1), 8 U.S.C. § 1255(m)(1).
64
INA § 245(m)(1), 8 U.S.C. § 1255(m)(1).

9
may be required to file for waivers of inadmissibility. Because fee waivers are not currently being
accepted, applicants may want to wait for DHS to request the submission of the inadmissibility
waiver. If inadmissibility red flags occurred after obtaining a U-visa the victim can apply for an
inadmissibility waiver under INA Section 212(d)(14). DHS also has the discretion to adjust the
status of a spouse, child, or parent65 of a U-visa holder whose status has been adjusted if it is
necessary to avoid extreme hardship.66 This applies to family members who were not originally
granted U-visa relief. If these family members are outside the United States, they may obtain an
immigrant visa abroad at a U.S Consulate.67 Applications for lawful permanent residency cannot be
filed by U-visa holders until U-visa adjustment regulations are published.

DOCUMENTARY EVIDENCE FOR U VISA APPLICATIONS

‰ “A Cover Letter: “The letter should explain how the applicant meets the requirements for
the U-Visa. The letter should be a roadmap to the exhibits filed in support of the
requirements. It should also provide necessary identification information, including
applicant’s full name and date and place of birth. If the applicant’s spouse, child, or, parent,
will also be seeking interim relief, the cover letter should state this and should list
information such as the family members’ names, dates of birth, and relationship to the
principal applicant.
‰ Signed statement from the applicant: A detailed declaration should describe the crime
victimization and how the applicant meets each U-Visa requirement
‰ The Applicant’s Personal Identification Information
‰ Form I-918 Application for U Nonimmigrant Status
‰ Form I-918 Supplement B U Nonimmigrant Status Certification
‰ Additional evidence to support the requirements
‰ Form I-918 Supplement A Petition for Qualifying Family Member of a U-1 Recipient for any
family members included (may be added later)
‰ Form I-765 Application for Work Authorization is not required for principal applicants but is
required for all family members.
‰ Form I-192 Application for Advance Permission to Enter as a Non-Immigrant if the applicant
is inadmissible
‰ Fees: There are no filing fees associated with the form I-918. However, a biometrics
(fingerprinting) fee is required but applicants may qualify for a fee waiver. In addition, the I-
765 and I-192 requiring filing fees.

The following is a list of suggested documents that may be submitted to prove each element of a U-
visa case. This list is meant to serve as a guide, and additional types of evidence may also be
submitted in support of the application. Furthermore, not all documents listed below will be
available in every case.

In addition to a signed statement and Supplement B law enforcement certification, an


application for U non-immigrant status should include evidence of the following:

Evidence of Substantial Physical and Mental Abuse as a Result of the Criminal Activity:

… Records from a health care provider documenting the diagnosis and treatment of physical
injuries or a psychological condition resulting from the criminal activity

… Affidavits from victim advocates, shelter workers, counselors, or mental health professionals,
detailing any physical and mental abuse or harm that the applicant has experienced and the
effect that the abuse has had on the applicant and the applicant’s family

65
The U-visa holder must be a “child” under immigration law (unmarried and under 21 years old) for the parent to qualify.
66
INA § 245(m)(3); 8 U.S.C. § 1255(m)(3).
67
INA § 245(m)(3); 8 U.S.C. § 1255(m)(3).

10
… Affidavit of the applicant detailing the substantial physical and mental abuse or harm suffered
as a result of the criminal activity

… Copies of any police/ incident reports on domestic violence or sexual assault or listed criminal
activity

… Copies of any protection orders/ restraining orders against the perpetrator

… Affidavits and certifications from neighbors, landlords, friends, or family who witnessed the
criminal activity or harm or injuries that resulted

… Affidavits from police officers or prosecutors describing the violence that the applicant has
experienced

… Photographs showing injuries, damage from the criminal activity (e.g. torn clothing, broken
door, etc.)

… Records of any 911 calls

Evidence that the Victim Possesses Information Concerning the Criminal Activity:

… Affidavits and certifications from police officers, prosecutors, EEOC investigators, judges, child
abuse investigators, Department of Labor investigators detailing the applicant’s knowledge of
the criminal activity

… Copies of any police reports or statements that the applicant has made to a law enforcement
agency

… Copies of claims for Victims of Crime Act (“VOCA”) assistance filed as a result of the criminal
activity

… Copies of reports filed with state child abuse investigators

… Transcripts of testimony that the applicant has given to a state, local, or federal law
enforcement agency or court

… Affidavits from witnesses that may place the applicant at the scene of the criminal activity or
attest to the applicant’s knowledge of the criminal activity

… Copies of reports made to sexual assault health professionals and law enforcement with regard
to evidence collection in rape cases.

Evidence That The Crime Victim Has Been Helpful, Is Helpful, or Is Likely to Be Helpful to a
Federal, State, or Iocal Investigation or Prosecution:

… Copies of any police reports or complaint reports made to law enforcement officials.

… Certifications and affidavits from police officers and prosecutors detailing the applicant’s
helpfulness

… Copies of any police reports or statements that the applicant has made to a law enforcement
agency

… Copies of reports filed with state child abuse investigators

11
… Transcripts of testimony that the applicant has given to a state, local, or federal law
enforcement agency or court

… Copies of reports made to law enforcement with regard to evidence collection in rape cases.

Evidence That Criminal Activity Violated the Laws of the United States or Occurred in the
United States or its Territories:

… Copies of any police reports or statements that the applicant has made to a law enforcement
agency

… Copies of claims for Victims of Crime Act (“VOCA”) assistance filed as a result of the criminal
activity

… Copies of reports filed with state child abuse investigators

… Transcripts of testimony that the applicant has given to a law enforcement agency

… Copies of any arrest warrants, police reports, or domestic violence incident report

APPLICANT PROCEDURE

All U visa applicants should be filed with Vermont Service Center.68 Applications filed by victims
outside of the United States must also be filed with the Vermont Service Center following the same
process as all other U-visa applicants. Once an application is approved, Vermont Service Center
will notify the applicant and grant employment authorization. If the applicant is abroad, Vermont
Service Center will contact the appropriate consular agency to grant the applicant entry into the
United States as a visa holder.69

When Congress created the U-visa, they also capped the number of U-visas that could be issued in
a year. DHS will only grant 10,000 principal U visas pr year. Once the cap is met, DHS will grant
deferred action, which is a temporary status with employment authorization, and place the
applicants on a waitlist for the actual U-visa. The cap does not count towards family members who
are included in an application. However, DHS will not grant U-visa status to family members before
the main victim applicant receives U-visa status. Therefore, if a family member’s principal applicant
is placed on the waitlist, the family members will too be placed on the waitlist and all cases of the
victim and each of his or her family members will be processed together.70

CONCLUSION

It is important to note that the U-visa can help several groups of victims of violence against women,
including victims of sexual assault and battered immigrants who were not covered by the original
VAWA self-petition or cancellation of removal provisions. Immigrants who are abused by a
boyfriend or another person who is not a spouse or parent or by a spouse or parent who is not a
U.S. citizens or permanent resident can obtain U-visas. The U-visa will also help non-citizen victims
of other crimes, including victims of rape or sexual assault who may not know or be related to the
perpetrator and domestic workers who are abused or held hostage in the home by their employers.

The standard for being granted a U-visa is in some ways more difficult than for self-petitioning
under VAWA. To qualify, the battered immigrant must suffer substantial physical or emotional

68
8 C.F.R. § 214.14(c)(1).
69
8 C.F.R. § 214.14(c)(1).
70
8 C.F.R. § 214.14(d)(2).

12
abuse and must cooperate with law enforcement. If an immigrant victim has never called the police
and reported the abuse and is afraid or unwilling to do so, it will not be possible to apply for a U-
visa.

No one should apply for a U-visa without the assistance of an immigration advocate or attorney
who has experience in working with immigrant victims.71 This chapter serves only as a basic
introduction and should not be relied upon to apply for U relief without first consulting an attorney.
Attorneys undertaking their first U-visa cases should consult with national experts involved who are
technical assistance providers.72 Because the U-visa is relatively new and regulations were
published in September 2007, few immigration practitioners or advocates will be familiar with U-visa
relief. Attorneys helping immigrant victims should be encouraged to consult technical assistance
providers.

72 72
The following organizations can provide information and technical assistance on U visa cases:
Immigrant Women Program, Legal Momentum -- telephone: (202) 326-0040, fax: (202) 589-0511, E mail
iwp@legalmomentum.org; Address: 1101 14th Street, N.W., Suite 300, Washington, D.C. 20005; ASISTA telephone: (515)
244-2469; Email: questions@asistaonline.org; Address: 515 28th Street, Des Moines, Iowa 50312

13
CATHOLIC CHARITIES OF DALLAS, INC.
IMMIGRATION & LEGAL SERVICES DIVISION

On-going Safety Questionnaire


As a matter of routine practice ILS Case Managers should inquire as to the on-going safety of all VAWA, U Visa
and T Visa clients each time one of these clients comes to our office for any type of follow up assistance on their
cases. All clients in these categories should be assured that their on-going personal safety is very important to us
and that we appreciate their cooperation in answering the following confidential questions. These questions should
only be asked in the privacy of an individual office. If any safety concerns are identified from these questions a
Program Director should be alerted and, together with the Program Director, the Case Manager should prepare a
service plan appropriate to the concerns revealed by the client.

Yes No
Do you believe you (or your children) continue to be at risk for harm by your abuser/perpetrator or
anyone else within or outside of the abuser’s/perpetrator’s family?

Do you remain in contact with your abuser/perpetrator?

Do you have a personalized Safety Plan? (If “No” provide client safety plan literature and offer
assistance to prepare one.)
Is there a Protective Order against your abuser/perpetrator?

Is it safe for us to send correspondence to the address you have given us?

Are you aware of the Texas AG’s Address Confidentiality Program? (ACP) (If “No” provide
information to local advocates certified to do registration.)
Is it safe for us to call you at the telephone number you have given us?

Do you have a personal cell phone? (If “No” provide client about free cell phone resources.)

Do you feel that your own emotional condition is such that you might be a threat to yourself, your
children or anyone else?
Do you feel that you are in need of other non-legal services that we might help you to arrange?

Is there anything else concerning your safety that you would like to make us aware of?

Date: _________________________ Client Name: ___________________


Case Manager: _________________ Case No: ______________________

Procedure to follow after doing questionnaire:


____ Enter a thorough casenote in Law Logix
____ Consult with a Program Director if client reveals safety concerns
____ File original questionnaire on the left side of client case folder on top of most recent questionnaire
____ Attach a pink colored tab on most recent questionnaire
____ Give yellow carbon copy to Victims’ Program Director

Attachment 1
S:\Common Forms\#15 Fee Waiver Request Form 1-08.doc

Fee Waiver Request & Declaration


Principal Applicant
Requesting Fee Waiver : __________________________________
Alien Number: ___________________________________________
Application Form No. ______________________________________

I am unable to pay the fee(s) for the application(s) listed below which pertain(s) to me and/or my
dependents. In accordance with 8 C.F.R. § 103.7(c), I am requesting a fee waiver.

Applicant’s Name Relationship to Me Application No. Fee

Situation & Criteria


I am applying for a fee waiver based on the following situation and criteria:
Public Benefits. Within the last 180 days, I qualified for or received a “federal means-tested public
benefit.” Please see attached evidence.
Low Income. My annual household income of $______ which taxes were paid for the most recent tax
year (if high enough to pay taxes on), is at or below the poverty level of $______, as indicated in the most
recent poverty guidelines set by the Secretary of Health and Human Services. Please see attached income
tax returns.
□ Age. I am elderly (age 65 or over).
□ Disability. I have a disability that has been determined by the Social Security Administration, Health
and Human Services, Veteran’s Administration, or other appropriate federal agency. Please see attached
documentation of my disability determination.
Dependents. I have ___ (number of) dependents in my family household who are seeking derivative
status or benefits concurrently with me (the principal applicant or beneficiary). Please see attached
evidence of my living arrangements.
□ Special Situation. I am in a special situation that requires humanitarian or compassionate
consideration, described below. Please see attached evidence, if available.
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
Fee Waiver Request & Declaration for: _______________________________________________
A-number:________________________
Attachment 3-1

1
Attachment 3-1
Overall Financial Picture

Information about my household and family members:

I live in the same household with (number of) persons, listed below. I am attaching evidence of my
living arrangements.

Name Age Relationship to me Employed (yes/no) Income

Information about my income

My total income each month (including that of my dependents, if applicable), from all sources, is $______.
Below I have listed all the sources of my income and the amount from each source. I am attaching
evidence of my income from these sources.

Source $ Amount per month


Wages/salary
SSI
TANF
Food Stamps
Other public benefits (as specified)
Other income (as specified)
TOTAL

Information about my assets

My total assets (including those of my dependents, if applicable), from all sources, are in the amount of
$_____. Below I have listed all of my assets and the amount each is worth. I am attaching evidence of my
assets.

Source $ Amount
Cash
Checking/savings accounts
Real estate
Personal property (as specified)
Other assets (as specified)
TOTAL
Fee Waiver Request & Declaration for: _______________________________________________
A-number:________________________
Attachment 3-2

2
Information about my expenses

My living expenses each month (including those of my dependents, if applicable) total $_______. I am
listing each expense below. I am attaching evidence of my expenses.

Source $ Amount per month


Housing (rent/mortgage)
Food
Utilities (electric/gas/phone)
Transportation
Medical
Child care
Clothing
Spousal and/or child support
Auto loan
Auto insurance
Credit cards
Other debts
Other expenses (specify)
TOTAL

I declare under penalty of perjury that the preceding is true and correct.

______________________________________ ________________
Signature of Declarant Date

Certification of Translation

I, ________________, affirm that I am fluent in __________ and English and that I have accurately
translated this declaration from English into the ____________ language to the declarant.

_______________________________________
Signature of Translator

Fee Waiver Request & Declaration for: _______________________________________________


A-number:________________________
Attachment 3-3

3
S:\TR Sheets\U Visa I-918 With Prior Int. Rel. 6-3-08.doc
U VISA TECHNICAL REVIEW SHEET FORM I-918
For First-time U Visa Self Petitioners
Case # ________ Caseworker: ___________ Date Opened: ________ Date to TR-1 __________

Case/File Management Issue Yes No


Case completed to file within 10 days of opening? Law Logix Issues to Check at TR Yes No
If No, Brought to supervisor’s attention? Full questionnaire completed?
Appropriate fees collected, or grant intake and label? All obviously answerable ?’s have response?
Case summary and case notes properly entered? Correct process identified?
File properly organized, tabbed, punched, etc? Activities dated and initialed?
Contract & fee schedule completed? ?’s regarding charges answered correctly?
Case Monitoring and Red Flags completed? ?’s regarding grant coverage answered?
Other immigration relief explored? Names and text not entered in all uppercase?
Are copies of other immigration cases in file? Client’s country of origin correctly identified?
Casenotes address potential conflicts? Client’s county of residence correctly identified?

Envelope:
________ Address to mail U Visa Package: USCIS-Vermont Service Center
________ Certified mail slips correctly completed 75 Lower Welden Street
St. Albans, VT 05479
APPLICATION PACKAGE SHOULD BE ORGANIZED Sec. 1: I-918 & I-765 packages for lead petitioner (one binder clip)
AS FOLLOWS WITH A SEPARATE BINDER CLIP Sec. 2: I-918 & I-765 packages for each derivative (one binder clip)
FOR EACH SECTION:

SECTION 1
_____ Cover Letter with contents of package identified
Fee Waiver Package (if applicable) OR _____ $80 money order for Biometric Fee stapled to G-28
_____ Fee waiver declaration
____ Documentation to support fee waiver
_____ Documentation is clearly labeled and relevance identified
_____ G-28

LEAD U VISA PETITIONER


Form I-918 Petition for U-Nonimmigrant Status & Documentation:
Part 1.__________ Part 2.__________ Part 3. _________
Part 4.__________ Part 5.__________ Part 6.__________ Part 7.__________
TR 1 by:
_____ Copy of valid passport
_____ Criminal documents relating to investigation & prosecution & identifying case outcome Date:
_____ Medical records relating to injuries sustained by this petitioner Passes:
_____ Counseling documentation specific to this petitioner Does Not Pass
_____ Update on or outcome of criminal case clearly identified and verified in the casenotes.

Form I-918 Supplement B, U Nonimmigrant Status Certification: TR 2 by:


Part 1 _________ Part 2 ________ Part 3: 1___ 2 ___ 3 ___ 4 a.___b.___ c___ 5 ___ 6 ____ Date:
Part 4 _________ Part 5 ________ Part 6: (signature of certifying official identified in Part 2)___________ Passes:
Does Not Pass
SECTION 2 - DERIVATIVIES
Derivative #1 Form I-918a Petition for U-Nonimmigrant Status & Documentation:
Part 1.__________ Part 2.__________ Part 3. _________
Fee Waiver Package (if applicable) OR
Part 4.__________ Part 5.__________ Part 6.__________
_____ $80 money order for Biometric Fee stapled to G-28 _____ Copy of valid passport
_____ Full copy of lead petitioner’s fee waiver declaration _____ Criminal docs relating to investigation & prosecution & case outcome
____ Documentation to support fee waiver _____ Medical records relating to injuries sustained by this petitioner
_____ Documentation is clearly labeled and relevance identified _____ Counseling documentation specific to this petitioner
_____ G-28 _____ Outcome of criminal case clearly identified and verified in the casenotes.

Attachment 4-1
SECTION 2 - DERIVATIVIES
Derivative #1 Form I-918a Petition for U-Nonimmigrant Status & Documentation:
Fee Waiver Package (if applicable) OR Part 1.__________ Part 2.__________ Part 3. _________
_____ $80 money order for Biometric Fee stapled to G-28 Part 4.__________ Part 5.__________ Part 6.__________
_____ Full copy of lead petitioner’s fee waiver declaration _____ Copy of valid passport
____ Documentation to support fee waiver _____ Criminal docs relating to investigation & prosecution & case outcome
_____ Documentation is clearly labeled and relevance identified _____ Medical records relating to injuries sustained by this petitioner
_____ G-28 _____ Counseling documentation specific to this petitioner
_____ Outcome of criminal case clearly identified and verified in the casenotes.

SECTION 2 - DERIVATIVIES
Derivative #2 Form I-918a Petition for U-Nonimmigrant Status & Documentation:
Fee Waiver Package (if applicable) OR Part 1.__________ Part 2.__________ Part 3. _________
_____ $80 money order for Biometric Fee stapled to G-28 Part 4.__________ Part 5.__________ Part 6.__________
_____ Full copy of lead petitioner’s fee waiver declaration _____ Copy of valid passport
____ Documentation to support fee waiver _____ Criminal docs relating to investigation & prosecution & case outcome
_____ Documentation is clearly labeled and relevance identified _____ Medical records relating to injuries sustained by this petitioner
_____ G-28 _____ Counseling documentation specific to this petitioner
_____ Outcome of criminal case clearly identified and verified in the casenotes.

SECTION 2 - DERIVATIVIES
Derivative #3 Form I-918a Petition for U-Nonimmigrant Status & Documentation:
Fee Waiver Package (if applicable) OR Part 1.__________ Part 2.__________ Part 3. _________
_____ $80 money order for Biometric Fee stapled to G-28 Part 4.__________ Part 5.__________ Part 6.__________
_____ Full copy of lead petitioner’s fee waiver declaration _____ Copy of valid passport
____ Documentation to support fee waiver _____ Criminal docs relating to investigation & prosecution & case outcome
_____ Documentation is clearly labeled and relevance identified _____ Medical records relating to injuries sustained by this petitioner
_____ G-28 _____ Counseling documentation specific to this petitioner
_____ Outcome of criminal case clearly identified and verified in the casenotes.

SECTION 2 - DERIVATIVIES
Derivative #4 Form I-918a Petition for U-Nonimmigrant Status & Documentation:
Fee Waiver Package (if applicable) OR Part 1.__________ Part 2.__________ Part 3. _________
_____ $80 money order for Biometric Fee stapled to G-28 Part 4.__________ Part 5.__________ Part 6.__________
_____ Full copy of lead petitioner’s fee waiver declaration _____ Copy of valid passport
____ Documentation to support fee waiver _____ Criminal docs relating to investigation & prosecution & case outcome
_____ Documentation is clearly labeled and relevance identified _____ Medical records relating to injuries sustained by this petitioner
_____ G-28 _____ Counseling documentation specific to this petitioner
_____ Outcome of criminal case clearly identified and verified in the casenotes.

Attachment 4-2
U NONIMMIGRANT VISAS FOR
VICTIMS OF CRIMES

The University of Texas School of Law


2008 Conference on Immigration and Nationality Law
San Antonio,
Antonio Texas

U VISA BACKGROUND

HISTORY: Created in October 2000 as part of


the Victims of Trafficking and Violence
Prevention Act
PURPOSE OF VISA: Strengthens ability of law
enforcement
f t to
t investigate
i ti t and d prosecute
t
designated crimes; offers protection to crime
victims and their family members

1
U Non-immigrant Visa
INA Sec. 101(a)(15)(U)
z Applicant suffered “substantial physical or mental
abuse” as a result of victim of criminal activity
z Applicant (or in the case of an alien child under
the age of 16, the parent, guardian of applicant)
possesses information concerning criminal
activity
z Th criminal
The i i l activity
i i violated
i l d U.S.
U S law
l
z Immigrant has been helpful, is being helpful, or is
likely to be helpful to a Federal, State, or local law
enforcement official (If under age 16, this
requirement may be met by parent or guardian)
3

BENEFITS OF U VISA

z Nonimmigrant status in U.S. for up to 4 years,


and may be extended
z Employment authorization
z Possibility of nonimmigrant status for family
members
z Possibility of adjusting status to LPR after 3
years of U status.

2
LIMITS AND WAIVERS

z Annual limit of 10,000 U-1 visas. This limit


does not include U visas granted to family
members.

z CIS may waive all inadmissibility grounds


grounds,
other than INA § 212(a)(3)(E) [genocide and
Nazi persecutions], if the waiver is in the public
interest.

TYPES OF CRIMINAL ACTIVITY


COVERED IN STATUTE
z Abduction
z Rape z False Imprisonment]
z Torture
z Blackmail
z Trafficking
z Extortion
z Incest
z Domestic violence z Manslaughter
z Sexual Assault z Murder
z Abusive Sexual Contact z Felonious Assault
z FGM z Witness Tampering
z Prostit tion
Prostitution z Obstruction of Justice
z Sexual Exploitation
z Perjury
z Being Held Hostage
z Attempt, conspiracy, or
z Peonage
Solicitation to commit any of the
z Involuntary Servitude
above mentioned crimes
z Slave Trade
z Any similar activity in violation of
z Kidnapping
federal, state or local criminal law

3
ADJUSTMENT OF STATUS TO LPR
z 3 yrs continuous presence in U.S. in U status; a single 90 day
or aggregate 180 day absence breaks continuous presence,
unless absence related to investigation or prosecution of
crime or otherwise justified;
z Applicant has not unreasonably refused to assist in a
criminal investigation or prosecution;
z Applicant’s
Applicant s continued presence in the US is justified on
humanitarian grounds, to ensure family unity, or is otherwise
in the public interest; and
z Applicant has not engaged in genocide and Nazi
persecutions.

VAWA 2005 Amendments to


U Visa Provisions

1. Addition of unmarried siblings under 18 to list


of derivatives
2. Extreme Hardship Requirement for
derivatives eliminated
3
3. Duration of status of U non-immigrants
non immigrants
4. Change of nonimmigrant status to T or U

4
New Regulations

z Interim regulations, but. . .


z Went into effect October 17, 2007
z Add new section to 8 CFR, § 214.14
z Text of new regs, and DHS’s summary
analysis of them
them, available at
http://www.uscis.gov/files/pressrelease/U-
visa_05Sept07.pdf

New Forms for U visas

z I-918 for principal applicants


z I-918 Supplement A for derivative beneficiaries
z I-918 Supplement B – certification form
z I-192 – not a new form – use for waivers of
inadmissibility grounds

10

5
Fees for U visas

z I-918, 918 Supp A, 918 Supp B: FREE


z Note that applicants over 14 must pay $80
biometrics fee
z I-192: $545
– This is NOT WAIVEABLE
– VSC has indicated that U applicants may file
applications without waiver applications; if VSC
wants a waiver, they will issue RFE

11

What to Submit: Those with Interim


Relief

z Do not need to file I-918, Supplement B, law


enforcement certification
z VSC “suggests” re-submitting initial U interim
relief package, but not required
z USCIS will consider evidence previously
submitted for interim relief
z May file additional evidence

12

6
What to Submit: New Applications

z Form I-918, Petition for U Nonimmigrant Status


z Form I-918 Supplement A for derivatives
z Form I-918, Supplement B, Law Enforcement Certification
z Any “additional evidence” petitioner wants USCIS to consider
z Statement by the Petitioner
z If inadmissible, Form I-192
– Note: VSC has said waiver app not req’d
req d for initial filing
filing, will issue an
RFE

13

Form I-918

z http://www.uscis.gov/files/form/I-918.pdf
z Most of the questions relate to the grounds of
inadmissibility

14

7
Form I-918, Supplement B

z Form must be completed by a certifying official


of a certifying agency which is conducting
investigation or prosecution of the qualifying
crime. New 8 CFR 214.14(c)(2)(i)
z Must be signed
g within the six months
immediately preceding the submission of form
I-918

15

Certifying Official

z Head of the certifying agency or any person(s)


in a supervisory role who has been specifically
designated by the head of the agency to issue
certifications. New 8 CFR 214.14(a)(3)

16

8
Certifying Agency

z A Federal, State or local law enforcement


agency, prosecutor, judge, or other authority
that has responsibility for the detection,
investigation, prosecution, conviction or
sentencing of qualifying criminal activity.

17

“Additional Evidence” – victim of


qualifying criminal activity

z Trial transcripts
z Court docs
z News articles
z Police reports
z Od
Orders off protection
t ti
z Affidavits of other witnesses such as medical
personnel

18

9
“Additional Evidence” – nature of abuse
suffered

z Reports and affidavits from police, judges,


other court officials, medical personnel, school
officials, clergy, social workers
z Evidence of order of protection
z Combo of photo of visibly injured applicant
supported by affidavits of individuals w/
personal knowledge of the facts

19

“Additional Evidence” – possesses


information re the crime

z Reports and affidavits from police, judges,


other court officials

20

10
“Additional Evidence” – petitioner’s age
or incompetence

z Where petitioner is child under 16 or is incapacitated or


incompetent, parent, guardian or next friend may submit evidence
on his/her behalf. If so,
– Must provide evidence of qualifying relationship to the petitioner
z Birth certificates
z Court docs naming individual as petitioner’s next friend
– Must provide evidence of age, incapacity or incompetence of the
petitioner
z Birth certificates
z Medical records
z Reports of licensed medical professionals showing incompetence or
incapacity

21

“Additional Evidence” – Petitioner has


been helpful

z Trial transcripts, court docs, police reports,


news articles, copies of reimbursement forms
for travel to and from court, affidavits of other
witnesses or officials
z If under 16,, incompetent
p or incapacitated,
p ,
parent, guardian or next friend may submit
evidence (with same documentation as above)

22

11
“Additional Evidence” – qualifying
criminal activity

z Copy of statutory provisions showing elements


of the offense
z Factual info about the crime showing it is
similar to the list of qualifying criminal activity
z If criminal activity took place outside UU.S.,
S must
include statutory provisions providing
extraterritorial jurisdiction and showing violation
of federal law/prosecutable in federal court

23

Statement by the Petitioner


z Required
z Describe facts of his/her victimization
z Nature of the criminal activity
z When it occurred
z Who was responsible
z Events surrounding crime
z How it came to be investigated or prosecuted
z Wh t substantial
What b t ti l physical
h i l and/ord/ mentalt l abuse
b resulted
lt d
z If under 16, incompetent or incapacitated, parent, guardian or next
friend must submit statement w/ as much info re crime and
physical/mental abuse as possible.

24

12
What to Submit: Derivatives

z Principal must submit I-918A for each


qualifying derivative
z File along with I-918, or after – may file
anytime while in U status
z While I-918 is pending: file I-918A with copy of
I 918
I-918
z After principal in U status: file I-918A with I-94
showing U status

25

Supporting Evidence: Derivatives

z Submit along with I-918A:


– Evidence of qualifying relationship to principal (e.g.
birth and/or marriage certificates)
– I-192 with fee if inadmissibility waiver needed

26

13
Adjudication

z In adjudicating, USCIS must consider “any


credible evidence” – same as for VAWA
applications
z Info provided by U applicants protected from
disclosure

27

Waivers

z I-192 form
z http://www.uscis.gov/files/form/i-192.pdf
z General waiver form for nonimmigrant visas
z USCIS will update form to reflect U
applications
z Write “N/A” on questions that don’t pertain

28

14
Waiver eligibility

z ALL inadmissibility grounds waiveable except


212(a)(3)(E). INA § 212(d)(14)
z Regs indicate that for “violent or dangerous
crimes” or security grounds under 212(a)(3)
DHS will g
grant waiver only y in “extraordinary
y
circumstances.”

29

Standard for granting waiver

z “In the national or public interest.”


z Hard to say yet how VSC/DHS will interpret
this standard.
z In many cases, being a U victim should in
theory satisfy the “national
national or public interest”
interest
standard.

30

15
Key Inadmissibility Issues

z Entry w/o inspection – INA § 212(a)(6)(A)


z Overstaying – INA § 212(a)(7)(B)
z USCIS has not said anything about public
charge considerations

31

Waiver for Lack of Passport

z INA § 212(a)(7)(B)(I) requires nonimmigrant to


have passport valid for at least six months
z Waiver is possible where there are “unforeseen
emergency” reasons for not having passport
z File this waiver on form II-193;
193; fee is $545

32

16
Employment Authorization

z Incident to status for Us – both principals and


derivatives
z 8 CFR 274a.12(a)(19) and (20) updated to
reflect this
z EAD will be valid for no longer than period of U
validity
lidit
z If EAD expires before U expires, file I-765 with
fee (or fee waiver request)

33

EADs for Principal Applicants

z Automatically issued
z Employment authorization is “incident to
status”
z No need to file I-765

34

17
EADs for Derivatives

z Derivatives must file I-765 along with the I-918


Supplement A
z Derivatives must pay I-765 fee (or request a
fee waiver)

35

Renewal EADs for those with interim


relief

z For those granted interim relief who have not


yet filed I-918, and whose EAD expires before
filing of I-918, USCIS will issue new EAD
based on interim relief
z Must file I-765 with filing
g fee

36

18
Travel

z Must obtain a U visa in order to re-enter the US


in U status
z BEWARE unlawful presence bars!!!
z May file for waiver of passport requirement if
emergency U-related
U related reasons prevent U holder
from obtaining passport
z File on form I-193

37

Adjustment

z U holders will be eligible to file for adjustment


three years after interim relief was granted.
z No regulations yet on adjustment

38

19
U resources online

z vawaupdates@yahoogroups.com
z http://www.ilrc.org/uvisa.php
z http://www.asistaonline.org/u.visa.asp
z http://www.legalmomentum.org/legalmomentu
m/programs/iwp/

39

20
TAB 10
Primer: Getting a Green Card
PRIMER: GETTING A
GREEN CARD

Presented by
T. Douglas Stump

32nd Annual Conference


on Immigration and Nationality Law
October 2008
Copyright © 2008, American Immigration Lawyers Association. Reprinted, with permission, from Navigating the Fundamen-
tals of Immigration Law 265 (2008–09 ed.).

ADJUSTMENT OF STATUS FOR BEGINNING PRACTITIONERS


updated by Vincent W. Lau*

INTRODUCTION AOS applications are found at 8 Code of Federal


Adjustment of status (AOS) is the process used Regulations (CFR) §§245.1–.22, 1245.1–.22.
by a foreign national who is physically present in the
United States to become a lawful permanent resident ELIGIBILITY
(LPR). AOS is an alternative to obtaining an immi- AOS, if used, is the final step in the immigration
grant visa through a U.S. consulate abroad, a process process.
known as “consular processing” (CP). Depending on Basic eligibility requirements for AOS are listed
processing times at U.S. Citizenship and Immigra- in 8 CFR §§245.1, 1245.1. Unfortunately, this sec-
tion Services (USCIS) service centers, AOS may be tion and the other regulations relating to AOS are
preferred by foreign nationals over CP because: (1) not a model of clarity, and careful reading is re-
it avoids the expense and inconvenience of travel to quired to understand the sometimes-overlapping eli-
the home country; (2) AOS applicants, including gibility criteria. First, some basic concepts of eligi-
dependent family members, are entitled to employ- bility will be discussed. Second, the specific grounds
ment authorization and permission to travel while of ineligibility listed in the regulations will be de-
the AOS application is pending; (3) employment- scribed briefly.
based AOS applicants receive job mobility (i.e.,
“portability”) benefits provided under recent legisla- Note that AOS is considered to be a discretionary
tion; and (4) there are more options for reconsidera- benefit.1 Although the applicant is statutorily eligi-
tion of an unfavorable decision by USCIS. ble, USCIS may deny the application based upon a
determination that discretion should not be favorably
This article is an introduction to the basic elements exercised.2
of AOS and covers eligibility issues, the documents
needed to file an adjustment application, where and Physical Presence in the United States
when to file the application, employment authoriza- The applicant must be physically present in the
tion and advance parole, and AOS before the immi- United States at the time the AOS application is
gration court. submitted.3 Specific proof of physical presence is
not usually required, but the applicant should be
AUTHORITIES prepared to present proof that he or she was physi-
The law governing AOS is set forth in the Immi- cally present on the filing date if requested.
gration and Nationality Act of 1952 (INA) at §245.
Regulations detailing eligibility and procedure for Admitted, Paroled, and in Valid Status
The applicant, in most cases, must have been
admitted or paroled to the United States following
Updated from Navigating the Fundamentals of Immigration inspection by an immigration officer.4 Exceptions to
Law 271 (2007–08 ed.). Copyright © 2007, American Immi- this rule include certain special immigrants (as de-
gration Lawyers Association (AILA), available from AILA fined in Immigration and Nationality Act (INA)
Publications, 1-800-982-2839, www.ailapubs.org.
§101(a)(27)(J) and (K)), who are considered to be
Articles do not necessarily reflect the views of the American paroled for the purposes of applying for AOS de-
Immigration Lawyers Association.
*
Vincent W. Lau practices immigration with the law firm
of Flynn & Clark, P.C. located in Cambridge, MA. He has
been a member of AILA (NE Chapter: Ethics Committee 1
See Immigration and Nationality Act of 1952 (INA)
Co-chair, 2004–05, YLD co-chair, 2002–03; and N. CA §245(a), Pub. L. No. 82-414, 66 Stat. 163 (codified as
Chapter) and is on the Board of Directors of the Asian amended at 8 U.S. Code (USC) §§1101–1524).
American Lawyers Association of Massachusetts. Mr. Lau 2
See Ka Fung Chan v. INS, 634 F.2d 248 (5th Cir. 1981).
has contributed to a number of AILA and Massachusetts 3
Continuing Legal Education publications and has spoken at 8 CFR §§245.1(a), 1245.1(a).
4
local and national forums on immigration. He received his INA §245(a); 8 Code of Federal Regulations (CFR)
B.A. from Yale College and his J.D. from Boston College. §§245.1(b)(3), 1245.1(b)(3).

265
266 NAVIGATING THE FUNDAMENTALS OF IMMIGRATION LAW (2008–09 ED.)

spite the manner of actual entry,5 and persons quali- ceive an immigrant visa are outside the scope of this
fying for AOS pursuant to INA §245(i).6 article and are addressed elsewhere in this volume.
Proof of admission is usually an I-94 card com- In the case of immediate relatives of U.S. citi-
pleted by the applicant when entering the United zens, the Petition for Alien Relative (Form I-130)
States and endorsed at the border or port of entry.7 and the AOS application may be made simultane-
However, certain applicants are exempt from the ously—sometimes referred to as “one-step” process-
I-94 requirement.8 If the I-94 card has been lost or ing—by direct mail to USCIS National Benefits
was not issued, the applicant may request an I-94 or Center (NBC) for initial processing, then adjudica-
replacement via Form I-102, Application for Re- tion by the governing USCIS district office.15 Addi-
placement/Initial Nonimmigrant Arrival-Departure tionally, concerning employment-based LPR appli-
Document. If no I-94 card was issued despite in- cants, as of July 31, 2002, the Petition for Immigrant
spection, the applicant must prove lawful entry to Worker (Form I-140) and the AOS application may
the examining officer by other means.9 be filed concurrently at USCIS’s service center if an
Following lawful entry, the applicant also must immigrant visa is immediately available.16 There are
have maintained his or her nonimmigrant status to various reasons why a practitioner may or may not
be eligible to apply for AOS.10 Except for immediate want to file an AOS application concurrently with an
relatives of U.S. citizens,11 special immigrants as I-140 petition; it is the practitioner’s responsibility
defined in INA §101(a)(27)(H), (I), (J), or (K), and to weigh the benefits and risks of doing so with the
certain applicants protected by the provisions at INA client on a case-by-case basis.
§§245(i) and (k), unauthorized work or other failure Whether an immigrant visa is immediately avail-
to maintain lawful status—such as overstaying the able is determined with reference to the classifica-
period of admission—will result in ineligibility for tion in which the applicant is attempting to immi-
AOS.12 In most cases, departure from the United grate.17 With the major exception of immediate rela-
States will not “cure” prior violations of status or tives of U.S. citizens (who are subject to no numeri-
unauthorized employment.13 Therefore, the appli- cal limitations18), immigrant categories are assigned
cant’s complete history must be examined to deter- a limited number of visas each year.19 Moreover, the
mine if the AOS application may be made. number of visas available in each category is allo-
cated on a per-country basis.20 The result of this al-
Immigrant Visa Immediately Available location system is that for some categories in which
The applicant must be eligible to receive an immi- the demand for immigrant visas outstrips the supply,
grant visa and the immigrant visa must be immedi- a waiting line is formed.
ately available for him or her to apply for AOS.14 The A person’s place in the queue is determined by
means by which an applicant becomes eligible to re- his or her “priority date,” which is defined as the
date upon which the immigrant petition (Forms I-
130, I-140—or underlying alien employment certifi-
5 cation, if applicable—I-526, or I-360) is properly
INA §§245(g) and (h); 8 CFR §§245.1(a), 1245.1(a) (spe-
cial immigrant juveniles) and §§245.8(a), 1245.8(a) (certain filed.21 The diversity visa lottery is allocated in a
persons having served in the military).
6
INA §245(i); 8 CFR §§245.1(b), 1245.1(b).
7
8 CFR §§235.1(f), 1235.1(f). 15
8 CFR §§245.2(a)(1), (2), 1245.2(a)(1), (2); 69 Fed. Reg.
8
Id. 67751 (Nov. 19, 2004) (direct mail program).
9 16
See Form I-102 Instructions, available at www.uscis.gov/ 67 Fed. Reg. 49561 (July 31, 2002). See D. Shenoy, “The
files/form/i-102.pdf. Concurrent Filing Rule—An Old Rule with a New Impact,”
10
See 8 CFR §§245.1(b)(4), (5), (6), (9) and (10), AILA New York Chapter Immigration Law Symposium
1245.1(b)(4), (5), (6), (9) and (10). Handbook 3 (AILA 2002).
17
11
“Immediate relative” is defined in INA §201(b)(2)(A)(i). See INA §§201 and 203.
18
Generally, it is a spouse, child (as defined in INA INA §201(b)(2)(A)(i).
§101(b)(1)), or parent of a U.S. citizen. 19
See INA §201.
12
See 8 CFR §§245.1(b)(10), 1245.1(b)(10). 20
See INA §202.
13
8 CFR §§245.1(d)(3), 1245.1(d)(3). 21
8 CFR §§204.1(c) (family-based petitions) and 204.5(d)
14
INA §245(a); 8 CFR §§245.1(a), 1245.1(a). (employment-based petitions).
ADJUSTMENT OF STATUS FOR BEGINNING PRACTITIONERS 267

similar system based on approval number.22 The pri- No person may derive the ability to immigrate
ority dates before which visas are being granted are based on a family relationship to an immediate rela-
listed in the Department of State’s (DOS) Visa Bul- tive of a U.S. citizen.28 However, if a marriage is the
letin, published monthly. It may be obtained at basis of the immigration application, children who
http://travel.state.gov/visa/frvi/bulletin/bulletin_314 are under 18 at the time of the marriage will qualify
3.html; by e-mail: listserv@calist.state.gov; or by for AOS based on a separate immigrant petition by
recorded phone message, on (202) 663-1541. There the U.S. citizen.29
is a direct link to the Visa Bulletin on the AILA In-
foNet home page, under “Processing Times.” Diver- Grounds of Ineligibility
sity visa lottery numbers are also listed in the Visa The specific grounds of ineligibility for AOS are
Bulletin. If the applicant’s priority date is before the listed in 8 CFR §§245.1(b), 1245.1(b) (restricted
date listed in the Visa Bulletin, a visa is considered aliens) and §§245.1(c), 1245.1(c) (ineligible aliens).
to be immediately available. The difference between these two categories is that
Note, however, that the visa is not assigned until “restricted aliens” may apply for AOS if they qualify
the AOS application is granted. Therefore, a visa under INA §245(i), but “ineligible aliens” may not
must be immediately available both at the time the apply for AOS in any case.
AOS application is made and on the date the appli- “Restricted aliens” include those who:
cation is granted. If a waiting line develops in the ƒ Entered the United States in transit without a
applicable category while the AOS application is visa;30
pending, then the application will be held in abey-
ance until a visa becomes available. The applicant ƒ On arrival to the United States were serving in
may maintain status as an AOS applicant for the en- any capacity on board a vessel or aircraft or were
tire time the AOS application is pending. destined to join a vessel or aircraft in the United
States to serve in any capacity thereon;31
Admissible to the United States ƒ Were not admitted or paroled;32
Applicants for AOS must be admissible to the ƒ On or after January 1, 1977, were employed in
United States and not deportable.23 A detailed dis- the United States without authorization prior to
cussion of the grounds of inadmissibility24 and filing an AOS application;33
deportability25 is included elsewhere in this volume.
ƒ On or after November 6, 1986, are not in lawful
Derivative Family Members immigration status on the date of filing the AOS
Most categories for immigration (with the major application;34
exception of immediate relatives of U.S. citizens) ƒ On or after November 6, 1986, fail to maintain
allow for AOS for certain family members along continuously a lawful status (other than through
with the principal applicant.26 These family mem-
bers are sometimes referred to as “derivatives” be-
cause their ability to immigrate derives from the
28
family member who is the principal applicant. As See INA §203(d); 8 CFR §204.2(a)(4).
29
with dependent family members for nonimmigrant The children are also immediate relatives of a U.S. citizen
visa purposes, the derivative family members in- pursuant to the definition of “child” in INA §101(b)(1),
clude a spouse and unmarried children under 21.27 which includes step-children.
30
To be a derivative child, the applicant must meet the 8 CFR §§245.1(b)(1), 1245.1(b)(1).
31
definition of that term set forth in INA §101(b)(1). 8 CFR §§245.1(b)(2), 1245.1(b)(2).
32
8 CFR §§245.1(b)(3), 1245.1(b)(3). However, 8 CFR
§§245.1(a), 1245.1(a) and 245.8, 1245.8 provide exceptions
by considering certain special immigrants to be paroled for
22 adjustment of status (AOS) purposes.
See INA §203(e)(2).
23 33
INA §245(a). See 8 CFR §§245.1(b)(4), 1245.1(b)(4), which also pro-
24 vide exceptions to ineligibility for immediate relatives of
INA §212.
25
U.S. citizens, certain special immigrants, and certain nurses.
INA §237. 34
26
See 8 CFR §§245.1(b)(5), 1245.1(b)(5), which also pro-
See INA §203(d). vide exceptions to ineligibility for immediate relatives of
27
INA §101(b)(1)(A)–(F). U.S. citizens and certain special immigrants.
268 NAVIGATING THE FUNDAMENTALS OF IMMIGRATION LAW (2008–09 ED.)

no fault of his or own or for technical reasons)35 to such a nonimmigrant status, unless he or she
since entry;36 first signs and submits the written waiver re-
ƒ Were admitted as a visitor under the visa waiver quired by INA §247(b) and 8 CFR §247;44
provisions of 8 CFR §§212.1(e), 1212.1(e);37 ƒ Are claiming eligibility for AOS as an immediate
ƒ Were admitted as a Visa Waiver Pilot Program relative or other family-based category and are
(now a permanent program)38 visitor;39 not the beneficiary of a valid, unexpired immi-
grant petition (Form I-130);45
ƒ Seeks AOS pursuant to an employment-based im-
migrant visa petition and is not maintaining a law- ƒ Are already admitted as a lawful permanent resi-
ful nonimmigrant status at the time of filing;40 and dent on a conditional basis under INA §§216 or
216A (based on marriage to a U.S. citizen, the
ƒ Have ever been employed in the United States duration of which marriage was less than two
without authorization or have otherwise at any years at the time the immigrant visa was granted)
time violated the terms of their admission.41 regardless of any other visa category for which
“Ineligible aliens” include those who: he or she may be eligible;46
ƒ Are seeking or engaging in “gainful employ- ƒ Are admitted to the United States as a fiancé(e)
ment” in the United States and are not the benefi- or spouse (K-1 or K-3 status) or the dependent of
ciary of a labor certification issued by the De- a fiancé(e) or spouse (K-2 or K-4 status) unless
partment of Labor (unless exempt from this re- the AOS application is based on marriage to the
quirement);42 K visa petitioner and, in the case of a fiancé(e),
ƒ Are subject to the two-year foreign residence the marriage was contracted within 90 days of
requirement of INA §212(e), unless such re- entry into the United States;47
quirement has been fulfilled or waived, and in the ƒ Are S status nonimmigrants, unless the AOS ap-
case of a physician who was granted a waiver plication is made pursuant to the request of law
based on the “Conrad State 30” program, the enforcement authorities as specified in INA
terms of INA §214(k) and 8 CFR §§212.7(c)(9), §101(a)(15)(S) and 8 CFR §§245.11, 1245.11;48
1212.7(c)(9) have been met (having to do with and
serving three years in the medically underserved ƒ Seek AOS based upon a marriage occurring on or
area for which the waiver was granted);43 after November 10, 1986, and while the applicant
ƒ Have an A, E, or G nonimmigrant status or an was in exclusion, deportation, or removal pro-
occupational status that would entitle him or her ceedings or judicial proceedings related thereto.49
Note that the absolute bar to adjustment of arriv-
35
8 CFR §§245.1(d)(2), 1245.1(d)(2), which include a list of ing aliens in removal proceedings has been re-
situations that might result from “no fault of the applicant or moved.50
for technical reasons.”
36
See 8 CFR §§245.1(b)(6), 1245.1(b)(6), which also pro- 44
8 CFR §§245.1(c)(3), 1245.1(c)(3).
vide exceptions to ineligibility for immediate relatives of 45
U.S. citizens and certain special immigrants. 8 CFR §§245.1(c)(4), 1245.1(c)(4).
37 46
8 CFR §§245.1(b)(7), 1245.1(b)(7) (pertaining to aliens 8 CFR §§245.1(c)(5), 1245.1(c)(5).
47
entering Guam pursuant to §14 of Pub. L. No. 99-396, “Om- 8 CFR §§245.1(c)(6), 1245.1(c)(6).
nibus Territories Act”). 48
8 CFR §§245.1(c)(7), 1245.1(c)(7).
38
See Visa Waiver Permanent Program Act, Pub. L. No. 49
See 8 CFR §§245.1(c)(8), 1245.1(c)(8), which provide a
106-396, 114 Stat. 1637 (Oct. 30, 2000). detailed explanation of the procedure and exceptions relating
39
See 8 CFR §§245.1(b)(8), 1245.1(b)(8), which also pro- to this ground of ineligibility. See also INA §245(e).
vide exceptions to ineligibility for immediate relatives of 50
71 Fed. Reg. 27585 (May 12, 2006), published on AILA
U.S. citizens. InfoNet at Doc. No. 06051561 (posted May 15, 2006); see
40
8 CFR §§245.1(b)(9), 1245.1(b)(9). M. Aytes, “Eligibility of Arriving Aliens in Removal Pro-
41 ceedings to Apply for Adjustment of Status and Jurisdiction
See 8 CFR §§245.1(b)(10), 1245.1(b)(10), which also pro-
vide exceptions to ineligibility for immediate relatives of to Adjudicate Applications for Adjustment of Status” (Jan.
U.S. citizens, certain special immigrants, and others. 12, 2007), published on AILA InfoNet at Doc. No. 07030661
42 (posted Mar. 6, 2007) (hereinafter USCIS Memorandum,
8 CFR §§245.1(c)(1), 1245.1(c)(1).
43
Jan. 17, 2007); see also M. Kenney, “USCIS Adjustment of
8 CFR §§245.1(c)(2), 1245.1(c)(2). Status of ‘Arriving Aliens’ with an Unexecuted Final Order
continued
ADJUSTMENT OF STATUS FOR BEGINNING PRACTITIONERS 269

APPLICATION PROCEDURE The number of photographs required depends on


The AOS application is made initially at the ap- the type of case and ancillary benefits sought;
propriate USCIS service center (unless the applicant ƒ Medical Examination of Aliens Seeking Adjust-
is in removal proceedings, or other exceptions, such ment of Status, Form I-693, and Supplement
as asylum, apply).51 Generally, the application is (supplied by the Centers for Disease Control and
adjudicated at the district office having jurisdiction Prevention to the Designated Civil Surgeons) (to
over the residence of the applicant if it is a family- document that there are no medical grounds for
based application, and at the service center if it is denial);56
any other type of application (employment-based, ƒ Affidavit of Support, Form I-864 (for family-
special immigrant, etc.).52 An AOS application made based cases or those employment-based cases in
in the course of removal proceedings is made with which the sponsor is a relative)57 or I-134 (for
the immigration judge.53 dependent family members in employment-based
The application is made on Form I-485,54 but cases) (to document that there is no ground for
several other forms and documents must be submit- denial based on likelihood of becoming a “public
ted along with this form to comply with the regula- charge”);58
tions and to prove eligibility. ƒ Approval Notice, Form I-797 (for Form I-130,
Forms and Documentation Required I-140, I-360 or I-526 petition, if applicable);
Following is a list of the most common forms ƒ Copy of applicant’s