Basic Immigration Law

1. Basic Immigration Law Illinois Coalition for Immigrant and Refugee Rights (312) 332-7360 www.icirr.org

2. overview of immigration categories CITIZENS by birth through parents by naturalization “ALIENS” immigrants lawful permanent residents (LPRs) refugees/asylees other lawful statuses non-immigrants e.g. visitors, students, temporary workers undocumented

3. US citizenship -  by BIRTH in the US or on US territory (as provided by 14th Amendment of US Constitution) -  through PARENTS even though born outside US    * acquired at birth (when at least one parent is already a US citizen)    * derived from parents after birth before turning 18 (when at least one parent becomes a US citizen) - through NATURALIZATION

4. non-immigrants v. immigrants NON-IMMIGRANTS enter the US with the intention of remaining temporarily and returning to their home country. IMMIGRANTS enter with the intention of remaining in the US permanently.

5. non-immigrants v. immigrants DHS presumes that everyone entering the US intends to stay permanently. THEREFORE non-immigrants must show that they have ties to their home country that would make them return.

6. common types of non-immigrant visas -  visitors (B-1 or B-2) -  students (F and J) -  temporary workers (most prominently H, but also includes wide range of visas) special cases - K visas (fiances and spouses of US citizens) - V visas (certain spouses and children of lawful permanent residents)

7. lawful permanent residents (LPRs) • family • employment • refugee/asylee • diversity (lottery) • cancellation • country-specific laws • registry • amnesty

8. employment-based immigration Immigrants must be sponsored by prospective employer. Most categories cover only immigrants with high levels of education or skill. Immigrants with lower skill levels must go through labor certification (i.e. the sponsor must prove that it could not find a worker already lawfully in US to fill the job and therefore it must sponsor the immigrant).

9. refugees/asylees individuals who have a well-founded fear of persecution in their native country due to - race - religion - nationality - political opinion - membership in specific social group

10. refugees/asylees refugees: identified outside the US (usually in UN-sponsored camps) and resettled in US through the State Department and international relief organizations  asylees: enter US by some other means and make claim for political asylum while in US (Less than 25% of asylum claims are successful.)

11. refugees/asylees Refugees can apply for LPR status (green cards) one year after admission—their LPR grant date is backdated to their date of admission. Asylees can apply for LPR status one year after being granted asylum—their LPR grant date is backdated one year from the date on which the LPR status is approved.

12. diversity program (visa lottery) This program is run by the Department of State each year to diversify the range of countries sending immigrants to the US. 55,000 visas are made available. Individuals send entries to DOS during a one-month entry period (usually in fall). DOS draws names; individuals whose names are drawn can apply for visas at the US consulate of their country.

13. diversity program (visa lottery) This program excludes the top 15 sending countries: Excluded countries generally include Canada, Mexico, El Salvador, Haiti, India, Pakistan, China, Vietnam, the Philippines, Russia, Great Britain Who usually benefits: • Smaller Asian countries (e.g. Bangladesh) • African countries • Countries with a small percentage of immigrants • Western European countries (e.g. Ireland)

14. cancellation of removal A form of relief from deportation available to people who - have been in the US for at least 10 years - have a parent, spouse, or minor child who is a US citizen or LPR - can show that this USC or LPR relative would experience a very high level of hardship if the applicant is deported Individuals can apply affirmatively for cancellation, but this involves placing themselves in removal proceedings. THEREFORE anyone considering cancellation should consult with experienced counsel.

15. country-specific relief Cuban Adjustment Act Nicaraguan Adjustment and Central American Relief Act (NACARA) (benefiting certain Cubans, Nicaraguans, Salvadorans, Guatemalans, and Eastern Europeans) Haitian Refugee Immigration Fairness Act (HRIFA)

16. registry To be eligible, individuals must * have entered the US before a certain cutoff date* have been in the US continuously since that date* have good moral charactercurrent registry cutoff date: January 1, 1972

17. amnesty • authorized under 1986 Immigration Reform and Control Act • covered immigrants present in US since before 1/1/1982 who met certain other qualifications • allowed 2 million undocumented immigrants (out of 3 million) to gain legal status • Another 500,000 immigrants are members of class action lawsuits challenging how USCIS ran the amnesty program; many are now eligible for the legalization program set up by the LIFE Act of 2000.

18. late amnesty Another 500,000 immigrants are members of class action lawsuits challenging how USCIS ran the amnesty program (CSS, LULAC/Newman, Zambrano, Proyecto San Pablo) Many of these class members are now eligible for the “LIFE Legalization” program set up by the LIFE Act of 2000.

19. family-based immigration two-step process: • sponsoring relative files petition to sponsor immigrant (e.g. Form I-130) • immigrant applies for LPR status (e.g. Form I-485)

20. who qualifies immediate relatives of US citizens • parents • spouses • minor (under 21) children

21. who qualifies preference categories: • 1st unmarried adult sons and daughters of US citizens • 2A spouses and minor children of LPRs • 2B unmarried adult sons and daughters of LPRs • 3rd married adult sons and daughters of US citizens • 4th brothers and sisters of US citizens

22. derivatives Immigrants in preference categories can bring along their spouses and minor unmarried children as derivative beneficiaries. Immediate relatives cannot bring along any derivative relatives.

23. Who DOESN’T qualify • grandparents • grandchildren • aunts/ uncles • nieces/ nephews • cousins • boyfriends/ girlfriends • domestic partners • friends • pets

24. preference system • Only a limited number of immigrants in each preference category can receive residency each year. • THEREFORE long waiting lists have formed in each category—an immigrant’s spot on the waiting list is determined by the date her sponsoring petition was filed (her priority date)

25. preference system The State Department’s monthly visa bulletin shows how far each waiting list has moved. The visa bulletin lists the cutoff dates for each category; immigrants with priority dates before the cutoff dates can apply for residency.

26. sample visa bulletin(April 2008)

27. where to apply for residency • All immigrants can apply at the US consulate of their home country (consular processing). • Certain immigrants can apply in the US at the USCIS (adjustment of status).

28. who is eligible to apply for adjustment • Immigrants who entered lawfully (on non-immigrant visas) and are maintaining lawful status • Immigrants who entered lawfully and are the immediate relatives of US citizens • Immigrants who qualify under section 245(i) Everyone else must apply at a US consulate

29. 245(i) Immigrants qualify for adjustment under 245(i) IF - their sponsoring petition was filed before 4/30/2001 -     (if their petition was filed after 1/14/1998) they were physically present in the US on 12/21/2000 Immigrants who qualify under 245(i) must pay a $1,000 penalty on top of the filing fees when they apply for residency.

30. conditional residence Immigrants who are • sponsored by a spouse and • approved for LPR status within 2 years of their marriage receive conditional resident status.

31. conditional residence Within 90 days of the two-year anniversary of the approval of their residency, conditional residents and their sponsoring spouses must - jointly petition to USCIS to remove the condition • go through an interview to prove that the marriage is valid and not entered into for immigration purposes. Certain exceptions apply in cases involving hardship.

32. VAWA Certain immigrants who are/have been in abusive relationships can self-petition under the Violence Against Women Act (VAWA). • Spouse or child of citizen or LPR • Bona fide relationship • Lived with abuser • Subjected to physical or mental abuse • Residing in US when application filed • Good moral character • Extreme hardship if deported

33. inadmissibility So everyone who applies to get into the US or for LPR status gets approved—RIGHT? WRONG!!!

34. inadmissibility Immigrants can be denied admission/residency for any of several reasons, including: • Communicable disease • Drug abuse • Criminal history • Terrorism/ national security/ involvement in persecution • Public charge • Immigration violations • Unlawful voting/ false claims to US citizenship

35. public charge Immigrants can be denied if USCIS believes they will rely on government benefits for their subsistence. BUT USCIS reads this ground narrowly to involve only use of • Cash benefits • Long-term institutional care (e.g. Medicaid payments for nursing home care)

36. public charge Public charge will not be triggered by use of • Food and nutritional programs • Medical assistance (other than long-term institutional care) • Housing benefits • Child care and foster care benefits • Other non-cash benefits • Benefits available to victims of domestic violence self-petitioning under VAWA or T-visa, U -visa

37. affidavit of support • Sponsors of immigrants seeking LPR status based on family relationships must file an affidavit of support.

38. affidavit of support • The affidavit must show that the sponsor has enough income to support his own household plus the immigrant and any spouse or children applying with him at 125% of poverty level ($26,500 for four). • If sponsors cannot meet the income requirement, they can get a “joint sponsor” who meets the requirement to file an affidavit.

39. affidavit of support • Affidavits are legally binding— If the immigrant ever uses a public benefit, the agency issuing the benefit can seek reimbursement from the sponsor. The sponsor’s obligation ends only when the immigrant • dies • naturalizes • works 40 calendar quarters • loses LPR status

40. unlawful presence bars • Anyone who is present in the US without legal status for 180 days, leaves, and attempts to reenter lawfully is barred from returning for 3 years. • Anyone who is present in the US without legal status for one year, leaves, and attempts to reenter lawfully is barred from returning for 10 years.

41. unlawful presence bars • Anyone ordered deported who attempts to reenter lawfully is barred from admission for - 10 years - 20 years after second and later deportation - life if deported for aggravated felony

42. unlawful presence bars • Anyone who - leaves the US after being in the US without legal status for a total of one year, or - has been ordered deported and attempts to reenter unlawfully is barred from admission for life.

43. deportability Any noncitizen can be deported (removed). Grounds include: • immigration status violations • unlawful presence in US • terrorism/ national security/ involvement in persecution • public charge (within first 5 years of admission) • marriage fraud • alien smuggling • unlawful voting/ false claims to US citizenship

44. criminal grounds of deportability • crimes involving moral turpitude • drug offenses • firearms offenses • domestic violence/ stalking • aggravated felonies

45. aggravated felonies • Include many serious offenses (murder, rape, firearms offenses) • Also include many minor offenses, i.e. crimes of violence or theft with sentences of one year or more (could include petty theft, shoplifting, simple battery)

46. why naturalize? US citizens can • vote • serve on juries • hold elective office • hold many government jobs (especially those involving security clearance) • sponsor parents, married sons and daughters, and siblings to immigrate • receive government benefits

47. naturalization requirements • 18 years old or older • LPR for at least five years (three years if married to US citizen for entire period) • continuously resided in US during 5-/3-year qualifying period (without absences of more than 6 months) • physically present in US for at least half of 5-/3-year qualifying period (i.e. 30 or 18 months)

48. naturalization requirements • is of good moral character • shows attachment to US Constitution • able to speak, read, and write English • able to pass test regarding US history and civics

49. English/civics requirements • Answer six out of ten history and government questions from a list of 100 questions • Read aloud one short English sentence • Write one short English sentence read by interviewing officer

50. exceptions to English/civics requirements Applicants are exempt from English requirements if • 55 years old and living in US as LPRs for 15 years • 50 years old and living in US as LPRs for 20 years when they file their application. In these cases, the applicants take the civics test in their native language.