IMMIGRATION LAW

An Overview

“History Repeats Itself. That’s one of the things wrong with history.” – Clarence Darrow

• Inconsistent laws – series of restrictions usually followed by some measure to alleviate a perceived hardship

• “unchecked” discretion to numerous agencies• Immigration & Nationality Act (1952)

Who is minding the store?

• Dept. of Homeland Security oversees– U.S.C.I.S. – U.S. Citizenship & Immigration Service– C.B.P. – Customs and Border Patrol – I.C.E. – Immigration and Customs Enforcement

• D.O.J. – Dept. of Justice oversees– Executive Office for Immigration Review– Immigration Court and its Judges– Board of Immigration Appeals

• D.H.H.S. – Division of Health & Human Svcs.

• D.O.S. – Dept. of State– Consular Offices throughout the world

• D.O.L. – Dept. of Labor– Labor Certifications

The evolution of the labyrinth

• Naturalization Act of 1790 – limited immigration to “free white persons” + 2 yr. waiting period to naturalize (later changed to 5 years in 1795)

• The Passenger Cases (1849) -- Smith v. Turner >> US Supreme Court held that federal power over foreign commerce superceded that of states>> states couldn’t impose a tax on non-citizens.

• Dred Scott (1856) – S.Crt. Held that citizenship was not necessarily determined by a person’s birth in the U.S.

• Civil Rights Act (1866) – determined that all persons born in the U.S., excluding Indians not taxed, were citizens

• 14th Amendment – all persons born and naturalized and subject to the jurisdiction…” were citizens of the U.S. U.S. v. Wong Kim Ark

Let the games begin… or se jodio el vecindario

• “First Restrictionist Period” – exclusion of convicts and prostitutes (1875)

• 1882 – head tax on aliens + exclusion of “idiots, lunatics,” criminals and those likely to become a public charge

• 1882 – Chinese Exclusion Act (repealed in 1943)• 1885-87 – further restrictions against those who violated

contract labor laws (reinforced the C.E.Act)• Pres. McKinley’s assassination >> Dillingham Commission

issued a report in 1911

• Immigration Act 1917 – Excluded persons from the geographic areas stretching from Afghanistan to

the Pacific Ocean* (*Japan / Philippines excepted)– Organic Acts [Jones and Foraker Acts extended citizenship to Puerto Ricans]

• National Origins Quota Act – 1924 -- Total quota >> 150,000 (2% of the nationality based on 1890 Census)

• Alien Registration Act – 1940 • McCarran-Walter Act of 1952

– Retained the quotas of 1924; visa allotment system based on family preference and skills necessary for the economy

– Est. an entry procedure– Enumerated a list of excludable and deportable individuals– Instituted a system of relief from deportation based on family relationships

with USCs and LPRs

Immigration Act of 1965• Eliminated national origins quota system• Created a category of immediate relatives• Removed restrictions relating to persons from Asia and prohibited discrimination

based on race, sex, nationality, place of birth or residence• Est. an annual quota system of 170,000 (outside the Western Hemisphere) and no

more than 20,000 from any single state• Restricted Western Hemisphere migration after June 30, 1968 to 120,000• Reformulated the preference system based on family relationships and skills• Restricted Western Hemisphere migration for those seeking it on basis of skills

necessary in US labor mkt.

Late 1970s – Early 1980s• Worldwide Quota – 290,000• 1978- adjustment for those paroled into the country prior to Sept. 30,

1980• Regugee Act of 1980 – est. a system for the admission of refugees and

application for asylees (quota set at any given year by President and Congress)

• Select Commission Report (Pres. Carter’s taskforce)– Sanctions on employers – Legalization for those who entered prior to Jan. 1, 1980– The increase of the worldwide quota to 350,000– Creation of additional immigration preferences– Establishment of a statutory immigration court– Separation of enforcement and service functions of the INS

In response to Carter’s taskforce, President Reagan established a Task Force

• Civil sanctions for employers• Limited TPS >> adjustment after 10 years• Worldwide quota >> 310,000 (Canada and

Mexico got 40,000 and transferable)• Expedited exclusion hearings; est. asylum

officers• Laws for the interdiction of vessels on the high

seas.

1980s

• Immigration Reform and Control Act of 1986– Blanket amnesty for agricultural workers and

others in U.S. since 1982– Universal process for working in U.S. (proof of

legal status)• Immigration Marriage Fraud Amendments of

1986– Two year process (Conditional)

1990s – the liberal years

• Immigration Act of 1990 – Worldwide quota set to 700,000 (465,000 family;

140,000 employment; 65,000 diversity NEW CATEGORY)

– Employment creation category for investors– Asylees who could adjust increased to 10,000– New visa categories: O and P

1993: the first attempt at the WTC

• Led to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

• Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA)

• NACARA – 1997• HRIFA – 1998• Dec. 2000 – last extension of “amnesty” under

245(i) of the INA

So, where are we now?

Pre-1996Exclusion v. deportationExclusion for those at the

border and/or airportsDeportation for all those in the

US

1996 – IIRAIRAAdmissibility v. RemovalAdmissibility for all those at

the border, airports and have entered illegally

Removal only for those who have entered legally

All those subject to admissibility are not “persons within the U.S.”

Inadmissible or Removable?Grounds for Inadmissibility:Applies to all those at airport, border and

who entered US illegally• Health• Public charge• Crime

– CMTs– Aggravated felons– Drugs – suspicion – Prostitution within 10 yrs. of application

• Firearms• National Security – Expedited Removal• Fraudulent use of documents• Fraud• Polygamy• Communist / supporter of totalitarian

regimes

Grounds for Removal:Applies to all LPRs and Visa holders• Health only if he/she becomes public

charge• National Security / Terrorism – but not

subject to Expedited Removal• Fraud• Public charge within first 5 years of

admission• Crime:

– CMTs– Aggravated felonies– Drug convictions (but not simple possession of

marijuana)

Coming to America: Refugees, Nonimmigrants and Immigrants

Nonimmigrant Visas: the ABCs• Temporary stay• Dual Doctrine exception• Application / Procedure• Extension / Change• Adjustment• VWP

• Categories: Tourism, Education, Family, Employment, Gov’t., etc.

Immigrant Visas: LPR• Family – based• Employment• Asylees / Refugees• Registry• Cancellation of Removal• Diversity• Legalization / special relief

Process

Outside the U.S.:Depending on the process Family – Dept. of State

beneficiary is outside USEmployment – D.O.L. (in most

cases) for the certification; DOS if worker is outside US;

Refugees – HHS

Inside the U.S.:Depending on the processFamily – USCIS (beneficiary is

in the U.S.)Employment – DOL for the

certification; USCIS for the adjustment if worker is in the U.S.

Asylees – USCIS

Immigrant Preference CategoriesFamily1st – sons and daughters of USCs2nd 2A – immediate relatives of LPRs 2B – sons and daughters of LPRs3rd – married sons and daughters of

USCs (includes spouses and minor children)

4th – siblings of USCs (includes spouses and minor children)

Employment1st – persons of extraordinary ability in the

sciences, arts, education, business or athletics; outstanding professors or researchers; multinational exec’s or managers (28.6%)

2nd – professionals with advanced degrees and/or exceptional ability in the arts, business, science to benefit the US or sought by an employer (28.6%)

3rd – skilled workers, professionals and “other workers” (other workers limited to 10,000 visas) (28.6%)

4th – special workers (religious, Panama Canal, Foreign Service workers, Amerasian minors, etc.)

5th – employment creation – investing $1million and employs at least 10 US workers

PRIORITY DATES … “I don’t wanna wait in vain…” – Bob Marley

Monthly Visa Bulletin (see Handout)Family CategoriesEmployment Categories

GeneralIndiaChinaMexico

Family-Sponsored All Charge-ability Areas Except Those Listed

CHINA- mainland born

INDIA MEXICO PHILIPPINES

F1 01APR06 01APR06 01APR06 08AUG93 01JUN99

F2A 01MAR11 01MAR11 01MAR11 01FEB11 01MAR11

F2B 15MAY05 15MAY05 15MAY05 01MAY93 08SEP02

F3 08AUG02 08AUG02 08AUG02 01APR93 22OCT92

F4 01MAY01 01MAY01 01MAY01 08SEP96 01OCT89

Naturalization“You make me feel like a natural [wo]man…”

Requirements: (excludes those who acquired at birth overseas)• Over 18 (unless derivative)• At least 5 yrs. as LPR (unless LPR status gained via marriage >> 3 yrs.)• Continuous presence during the required LPR status period• No continuous absence longer than 180 days• 3 months residency in state where application filed• Good moral character – no crimes of moral turpitude; no aggravated felonies• Taxpaying• Knowledge of English (except those 50 yrs. old that are LPRs for 20 yrs. and

those 55 yrs. old that are LPRs for 15 yrs.)• Knowledge of US History and Civics• Attachment of constitutional principles• Oath of Allegiance

Where are we now?

• Deferred Action – I-821D• Some proposals– Worker programs– Dream Act– Comprehensive Reform – what would that look

like?