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April 15, 2010

IMMIGRATION OVERVIEW. April 15, 2010. November 8, 2010. Paull Hejinian Partner Fragomen, Del Rey, Bernsen & Loewy 250 Montgomery Street San Francisco, CA 94104 paull@fragomen.com. Classes of people. US citizens Permanent residents (“green card” holders) Nonimmigrants

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April 15, 2010

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  1. IMMIGRATION OVERVIEW April 15, 2010 November 8, 2010

  2. Paull Hejinian Partner Fragomen, Del Rey, Bernsen & Loewy 250 Montgomery Street San Francisco, CA 94104 paull@fragomen.com

  3. Classes of people US citizens Permanent residents (“green card” holders) Nonimmigrants People with pending green card cases Everyone else in the United States People not in the United States

  4. Nonimmigrants Start with a letter Single clear purpose Many rules and restrictions Have an end-date

  5. Most common work categories L-1 “intracompany transferee” Specialized knowledge or manager/executive Worked for same company outside US for >1 year H-1B “specialty occupation” Professional job and foreign national has a degree (or equivalent) Annual limit of 85,000 E-2 “treaty investor” Requires treaty with person’s country of citizenship O-1 “extraordinary ability” Country-specific categories TN for Mexico and Canada H-1B1 for Singapore and Chile E-3 for Australia

  6. Other nonimmigrant categories A and G diplomats B-1 business visitor B-2 tourist F-1 student Includes limited work authorization J-1 exchange visitor Includes limited work authorization

  7. Fantasy nonimmigrant categories Retire and play golf Spend money Paint, draw, or write Consult or otherwise employ yourself Unless qualify for one of the categories above

  8. Loss of nonimmigrant status Termination of employment No grace period Violation of status Work without authorization Unauthorized activities like changing school

  9. Lawful Permanent Residence “Green card” Unlimited duration Right to live in the United States Unrestricted work authorization A “protected class” International travel Naturalization possible but never required

  10. Green card sponsorship Employment PERM (test of the labor market) Long backlogs in some categories Multinational managers, extraordinary ability, national interest waiver, outstanding researchers Family ties Spouses of US citizens “conditional residence” Other family ties Diversity lottery EB-5 investors Asylum

  11. Green card sponsorship Long wait for “priority date” If I-485 pending, creates an ambiguous “adjustment pending” status Work authorization Travel authorization

  12. Maintenance of green card Valid only if US is residence Multiple factors, including taxes Can be challenged at ANY TIME Absences Under 6 months, no presumption But no guarantee! 6 to 12 months, presumption that abandoned Over 12 months, green card invalid for return Exception: Reentry permit for foreign assignments, compelling personal reasons

  13. Loss of green card Formal willing renunciation Form I-407 Abandonment willingly Abandonment unwillingly Formal rescission proceeding before immigration judge

  14. Acquisition of US citizenship Birth in the United States Except children of diplomats Not optional! Birth outside the United States to US citizen Both parents USCs = child automatically US citizen Only one parent USCs = residence requirement for USC parent or grandparent Naturalization – see next slide Naturalization of parents when under 18 Other methods … Military service

  15. Naturalization Permanent resident 5 years 3 years of marriage to US citizen Residence requirements 50% of days in prior 5 (or 3) years Continuity of residence No absence greater than one year No foreign earned income exclusion Home open and available Good moral character

  16. Dual citizenship US allows dual citizenship Long recognized under the law, including by Sup.Ct. “Entanglements” and “competing and conflicting” claims No cross-reporting when naturalize Citizenship oath Must leave and enter the US with US passport

  17. Loss of US citizenship Very rare Performing a statutory act with the intention of losing US citizenship: Formal renunciation before a diplomatic officer Acquiring citizenship in another country Serving in foreign armed forces against the US Serving in foreign armed forces as officer Working for a foreign government Treason, or bearing arms against the US Denaturalization Fraud or concealment of material evidence

  18. Loss of US citizenship Certificate of Loss of Nationality (CLN) 8 USC 1182(a)(10)(E) Inadmissible to the United States if “officially renounces … for the purpose of avoiding taxation by the United States.” Never enforced Very ambiguous

  19. Thank You Questions

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