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Dream ActivistJust over five years ago, President Obama announced the Deferred Action for Childhood Arrivals (DACA) program, which allowed certain undocumented immigrants who had been brought to the United States as children to remain here. The idea behind the program was that people brought here as children, who had no say in the matter, and who have demonstrated commitment to certain ideals deemed particularly American, should be allowed to remain in the country they call home. The creation of DACA occurred after Congress had failed multiple times to pass legislation addressing this issue, known as the DREAM Act. Since DACA began in 2012, around 800,000 people have benefited. In early September 2017, however, the new White House administration announced plans to terminate the program. This would leave hundreds of thousands of people vulnerable to loss of work authorization and possible deportation. Multiple states have filed suit to challenge the termination of the program, and they have been joined by a group of DACA beneficiaries in Garcia, et al. v. United States, et al., No. 3:17-cv-05380, complaint (N.D. Cal., Sep. 18, 2017).

President Obama first announced DACA on June 15, 2012. At that time, Congress had considered but not enacted the Development, Relief, and Education for Alien Minors (DREAM) Act three times. In order to qualify for DACA protection, applicants had to have entered the U.S. as children and have been present in this country for at least five years. They must not have a felony criminal record, and they must have either attended college or served in the U.S. military. DACA status was initially valid for two years, and it has been subject to renewal several times. DACA beneficiaries are also eligible for work authorization.

On September 5, 2017, the White House announced that it would end the DACA program after a six-month period. The announcement included a request to Congress to enact legislation making DACA protections a formal part of federal immigration law. Senator Richard Durbin (D-IL) re-introduced the DREAM Act shortly afterwards, but if Congress does not act by March 2018, hundreds of thousands of DACA recipients—often known as “Dreamers”—could face deportation.

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INS SealImmigration law in the United States involves a complicated set of laws and regulations, which are administered and enforced by agencies spread across several Cabinet-level departments of the federal government. The immigration system covers two main areas:  benefits and enforcement. While our law practice focuses on immigration benefits, namely immigrant and nonimmigrant visa petitions and applications to adjust status to permanent resident, everything in this system is connected, however distantly. The New Jersey immigration system, according to various studies, is particularly beset with problems, including massive case backlogs. It is useful to look at the entire process, from petitions to removals, since careful and thorough preparation during the petition part of the process can help prevent any contact with other parts of the system.

The Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq., is the country’s primary immigration statute. Prior to 2003, administration of the “benefits” part of the law was split between the Department of State (DOS) and the Department of Justice (DOJ). People seeking visas outside the U.S. applied at U.S. embassies and consulates operated by the DOS. Petitions and applications filed within the U.S. went through a DOJ agency that no longer exists, the Immigration and Naturalization Service (INS). The Homeland Security Act (HSA) of 2002 moved the INS to the newly created Department of Homeland Security (DHS), and it divided its responsibilities among several new agencies. It created U.S. Citizenship and Immigration Services (USCIS) to process immigration petitions and applications.

The enforcement side of the INA involved multiple DOJ agencies before 2003. The INS and the Border Patrol handled investigations of suspected immigration violations, and the INS represented the government in court proceedings seeking removal. Another DOJ agency, the Executive Office for Immigration Review (EOIR), operated a system of courts that heard removal cases and a Board of Immigration Appeals (BIA) to review those courts’ rulings. The HSA kept the the EOIR where it is but moved the enforcement functions of the INS and Border Patrol to two DHS agencies:  Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP). The officers who enforce immigration law and the attorneys who represent the government in immigration court now work for the DHS, while the immigration court judges still work for the DOJ.

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BosniaImmigrants to the United States can become citizens through the process of naturalization, and unlike natural-born citizens, it is possible for them to lose citizenship. The Immigration and Nationality Act (INA) states that a conviction for unlawfully obtaining citizenship can result in the loss of naturalization, but it does not define the scope of the government’s power under this provision. The U.S. Supreme Court ruled earlier this year that the government cannot revoke a person’s naturalization unless the fraudulent statement or action that led to the conviction was materially related to the approval of the naturalization petition. Maslenjak v. United States, 582 US ___ (2017).

Under federal criminal law, it is an offense to obtain naturalization for oneself or anyone else by any means that are “contrary to law.” 18 U.S.C. § 1425(a). The statute’s rather vague phrasing has been interpreted to include false statements in connection with a naturalization application. What remained unclear was whether the false statements have to be material to the eventual decision to grant naturalization.

The INA identified several specific grounds for revocation of naturalization, including a conviction under § 1425. In that case, the INA states that the court that enters the conviction should “revoke, set aside, and declare void” the person’s naturalization order. 8 U.S.C. § 1451(e). This section is also silent on the question of whether the underlying unlawful act must be directly material to the naturalization decision.

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Bald Eagle PortraitThe future of immigration law in the U.S. is, to put it as simply as possible, uncertain at the moment. The White House has expressed interest in reducing the total number of immigrants allowed into the country, and it has stepped up immigration enforcement to an even greater degree than the previous administration. In this environment, immigrants living in the U.S. seem to be stepping up their own efforts to claim whichever benefits may be available to them under current immigration laws. U.S. Citizenship and Immigration Services (USCIS) has reportedly seen an increase in the number of naturalization applications that it has received in recent months. Immigrants in the New Jersey and New York areas, including lawful permanent residents, nonimmigrant visa holders, and others, should be aware of their status and their rights under federal immigration law.

The Naturalization Process

“Naturalization” allows an immigrant to become a citizen of the United States, with almost all of the rights and obligations associated with that status. An individual begins the process of becoming naturalized by filing Form N-400 with USCIS. The general eligibility criteria for naturalization can be broadly divided into three groups:  age and immigration status, residence, and education and character. An applicant must be at least 18 years old as of the date they file their N-400, and they must have held lawful permanent resident status (i.e., a “green card”) for at least five years.

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New Melones LakeThe Immigration and Nationality Act (INA) identifies multiple grounds of inadmissibility to the U.S. These include criminal history, national security concerns, prior immigration violations, and health concerns. The INA allows the government to make exceptions with regard to fraud-related activities, based on the impact inadmissibility or removal would have on relatives in the U.S. The Third Circuit Court of Appeals in New Jersey recently reviewed the procedures for this type of waiver in Park v. Atty. Gen., 846 F.3d 645 (3rd Cir. 2017). This issue is unlikely to affect most prospective New Jersey immigrants, but it is important information to consider when planning a visa application.

A “§ 212(i) waiver of inadmissibility,” named for the section of the INA that defines it, applies to individuals previously held to be inadmissible for fraud, willful misrepresentation of a material fact, or falsely claiming U.S. citizenship in connection with seeking an immigration-related benefit. 8 U.S.C. §§ 1182(i), (a)(6)(C). An individual seeking a waiver must first establish that they are “the spouse, son, or daughter of a United States citizen” or lawful permanent resident (LPR). Id. at § 1182(i)(1). They must then show that denying them entry to the U.S. would cause “extreme hardship” to that individual’s relatives. Id. The Department of Justice (DOJ), through the Executive Office for Immigration Review (EOIR), has discretion to decide whether to grant a waiver.

The statute specifically denies the courts jurisdiction to review DOJ decisions regarding this type of waiver. Id. at § 1182(i)(2). Within the EOIR, however, a review process is available at the Board of Immigration Appeals (BIA). Both the immigration courts and the BIA are bound by their own precedential decisions and established practices. The impact of prior decisions on the BIA was a major aspect of the appellant’s argument in Park.

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Supreme CourtThe Immigration and Nationality Act (INA) provides that almost anyone born within the territorial jurisdiction of the United States is a U.S. citizen by birth, also known as “birthright citizenship.” Individuals who were born outside the U.S. may be eligible to claim birthright citizenship if at least one parent was a U.S. citizen who meets certain residency requirements. If an individual was born outside the U.S. to an unwed U.S. citizen parent, more stringent residency requirements apply, but only if the father is the U.S. citizen. A man born in the Dominican Republic to unwed parents, with a U.S. citizen father, challenged the constitutionality of this provision. The U.S. Supreme Court ruled that it violates the Equal Protection Clause of the Fifth Amendment, although the court’s solution was ultimately not beneficial to the respondent. Sessions v. Morales-Santana, 582 U.S. ___ (2017).

If a person’s mother was a U.S. citizen at the time of their birth outside the U.S. and was not married to their father, they are a citizen by birth as long as the mother had at least one year of continuous physical presence in the U.S. before the birth. 8 U.S.C. § 1409(c). The standard is very different, however, if the father was a U.S. citizen, the mother was not, and they were not married. In order for the person to have birthright citizenship, the father must have “a blood relationship [with the person] established by clear and convincing evidence,” must have “agreed in writing to provide financial support for the person” during their childhood, and must have acknowledged paternity or been adjudicated to be the father prior to the person’s 18th birthday. Id. at § 1409(a).

The respondent in Morales-Santana challenged a deportation order, arguing in part that § 1409(a) was unconstitutional because it discriminated against individuals born to unwed U.S. citizen fathers. He was born in the Dominican Republic to a U.S. citizen father who met all but one of the statutory requirements, missing the five years of U.S. residency by only 20 days. The Second Circuit Court of Appeals ruled that this part of the statute was unconstitutional, distinguishing the case from prior rulings affirming its constitutionality. See, e.g. Miller v. Albright, 523 U.S. 420 (1998).

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Adoption SymbolThe federal Immigration and Nationality Act (INA) gives several specific and distinct meanings to the word “child.” A person petitioning for an immigrant visa for their child must establish that the intended beneficiary meets a statutory definition of “child.” In cases of adoption, this can be complicated. The Board of Immigration Appeals (BIA) ruled on an adoptive parent’s appeal of a rejected visa petition. It found that, although the adoption occurred after the statutory cut-off date, the adoption decree’s retroactive effect placed the beneficiary within the INA’s definition of a “child.” Matter of Huang, Int. Dec. #3844, 26 I&N Dec. 627 (BIA 2015).

The “immediate relatives” of a U.S. citizen, including children, are not subject to any numerical limitation under the INA. 8 U.S.C. § 1151(b)(2)(A)(i). The INA defines “child,” in part, as “a child adopted while under the age of sixteen years.” Id. at § 1101(b)(1)(E)(i). Immigration regulations state that “the child must have been under 16 years of age when the adoption is finalized.” 8 C.F.R. § 204.2(d)(2)(vii)(C). Neither the statute nor the regulation defines “finalized.” This has led to confusion in cases in which the adoption process began before the child turned 16 but was not completed until after their 16th birthday.

The BIA gave the “sixteen years old” provision a “literal interpretation” in Matter of Cariaga, 15 I&N Dec. 716, 717 (BIA 1976). The petitioner in that case filed adoption paperwork after the beneficiary turned 18. The court, however, made the adoption decree retroactive to 12 years earlier, when the beneficiary was about six years old. The BIA held that this did not meet the INA’s definition. It affirmed its literal reading of the statute in Matter of Drigo, 18 I&N Dec. 223 (BIA 1982).

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Residency PaperworkThe future of the H-1B specialty worker visa program has been uncertain since the new presidential administration took over in January 2017. The White House formally addressed the program for the first time in an executive order (EO) issued in April. EO 13788 of April 18, 2017, 82 Fed. Reg. 18837 (Apr. 21, 2017). The EO, entitled “Buy American and Hire American,” directs the federal government to purchase products manufactured in the United States and to hire American workers whenever possible. It also directs certain cabinet departments to review immigration regulations, including the H-1B program, and possibly to revise its rules and guidance in order “to protect the interests of United States workers in the administration of our immigration system.” EO 13788 § 5(a), 82 Fed. Reg. 18838. It provides no specific guidelines with regard to the H-1B program, although the language of the EO suggests that the administration does not intend to eliminate the program entirely, as some have feared.

H-1B visas are available to workers in “specialty occupations.” 8 U.S.C. § 1101(a)(15)(H)(i)(b). This refers to an occupation that requires the “theoretical and practical application of a body of highly specialized knowledge,” as well as at least a bachelor’s degree or the equivalent in the relevant field of study. Id. at § 1184(i)(1). Additionally, the intended visa holder must have any and all required licensure for the job, if any, and must have either received the academic degree mentioned earlier or obtained enough on-the-job experience to equal the work required for a degree. Id. at § 1184(i)(2).

Both the employer and the prospective visa holder must meet eligibility criteria before the government will issue an H-1B visa. The employer must obtain a labor certification from the U.S. Department of Labor (DOL). Id. at § 1182(n)(1). This requires certifying to the DOL that the employer will pay a wage to the H-1B worker that is comparable to what it would pay to an American worker and provide the same general working conditions. The goal here is to prevent employers from driving down wages and other conditions of employment. The employer must also certify that the H-1B worker will not immediately “displace a United States worker.” Id. at § 1182(n)(1)(E).

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Wedding cakeFederal immigration law provides multiple ways that a person can become a naturalized citizen of the United States. Children may be able to obtain naturalization if one or both parents successfully complete the naturalization application process, but this does not apply to all children of newly naturalized citizens. The Immigration and Nationality Act (INA) draws a distinction between children who were either born in wedlock or have been “legitimated” under the laws of their home country, as opposed to children who were born out of wedlock. While the United States has done away with most legal distinctions between children born in and out of wedlock, they persist in some countries, and they may still be a factor under the INA. A recent decision by the Board of Immigration Appeals (BIA) addresses some confusion over this process. Matter of Cross, Int. Dec. 3826, 26 I&N Dec. 485 (BIA 2015).

The INA states that a child born outside the U.S. automatically becomes a U.S. citizen if at least one parent is a citizen, the child is less than 18 years old, and the child lawfully resides in the U.S. in the citizen parent’s custody. 8 U.S.C. § 1431(a). This applies whether the parent obtained citizenship “by birth or naturalization.” This may seem straightforward, but the way the INA defines a “child” for the purposes of this provision makes it more complicated.

For the purposes of the naturalization provisions of the INA, a “child” is defined as an unmarried person who is under the age of 21 and who, before the age of 16, was “legitimated under the law of the child’s [or the father’s] residence or domicile.” 8 U.S.C. § 1101(c)(1). The concept of “legitimation” or “legitimacy” relates to whether a child’s parents were married at the time of their birth and whether the child’s father has gained legal recognition as the father. Amendments to the INA enacted in 1995 changed most instances of the terms “legitimate child” and “illegitimate child” to “child born in wedlock” and “child born out of wedlock,” respectively.

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Serbia mapBecoming a naturalized citizen allows immigrants to make a permanent home in the United States. The Immigration and Nationality Act (INA) only allows the government to revoke a person’s naturalization under a very limited set of circumstances. The U.S. Supreme Court is currently considering a case, Maslenjak v. United States, in which the federal government is claiming authority to strip individuals of naturalization based on a very broad interpretation of the narrow circumstances allowed by the INA. The result of the case could affect naturalized citizens throughout the country, as well as immigrants who hope to become naturalized in the future.

The Fourteenth Amendment to the U.S. Constitution states that anyone “born or naturalized in the United States” is a citizen, with an exception for children born to foreign diplomats and others protected by diplomatic immunity. This is known as “birthright citizenship.” See United States v. Wong Kim Ark, 169 U.S. 649 (1898). People born outside the U.S. to one or more U.S. citizen parents may also be able to claim birthright citizenship under the provisions of the INA. See 8 U.S.C. § 1401. People born outside the U.S. to parents who are not citizens must seek U.S. citizenship through the naturalization process.

The INA defines “naturalization” as “the conferring of nationality of a state upon a person after birth,” with “nationality” defined to include citizenship. Id. at §§ 1101(a)(21) – (23). To be eligible for naturalization, an individual must meet multiple criteria, typically including residence in the U.S. as a lawful permanent resident for at least five years. Id. at § 1421 et seq. Once a person has become a naturalized citizen, the INA only allows revocation in limited circumstances, most of which are related to acts or omissions during the process of applying for naturalization. “[C]oncealment of a material fact or…willful misrepresentation” is a ground for revocation. Id. at §§ 1451(a). Conviction for the federal crime of “knowingly procuring naturalization in violation of law” can result in the loss of naturalization at the conclusion of the criminal proceeding. Id. at § 1451(e), 18 U.S.C. § 1425(a).

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