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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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flagsApplying for immigration benefits involves a substantial amount of paperwork, and it requires close and careful attention to detail. While mistakes can cause delays and other difficulties in an application, outright falsehoods have far worse consequences. The Board of Immigration Appeals (BIA) affirmed a removal order last year based, in part, on a finding that the respondent falsely represented himself as a U.S. citizen. Matter of Richmond, Int. Dec. 3867, 26 I&N Dec. 779 (BIA 2016). A key question before the BIA was whether a person’s intent in making a false statement is relevant.

The Immigration and Nationality Act (INA) provides a lengthy list of grounds for inadmissibility, including health problems, criminal activity, and national security concerns. Prospective immigrants with a history of immigration violations may also be deemed inadmissible. This includes someone “who falsely represents, or has falsely represented, [themselves] to be a citizen of the United States for any purpose or benefit under [the INA] or any other Federal or State law.” 8 U.S.C. § 1182(a)(6)(C)(ii)(I). The words “purpose or benefit” are important.

According to the BIA’s ruling, the respondent in Richmond is a citizen of Trinidad and Tobago, who entered the U.S. on a nonimmigrant visa in May 2001. After a conviction for second-degree assault—which was later overturned on appeal—the Department of Homeland Security (DHS) brought removal proceedings. It alleged that he was deportable for overstaying his visa under 8 U.S.C. § 1227(a)(1)(B) and for a conviction of an aggravated felony under § 1227(a)(2)(A)(iii).

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visaThe Immigration and Nationality Act (INA) gives multiple federal agencies under several Cabinet departments jurisdiction over different—sometimes overlapping—processes. U.S. Citizenship and Immigration Services (USCIS), which is part of the Department of Homeland Security (DHS), handles most visa petitions and applications for adjustment of status. The courts that hear removal cases and other matters are part of the Executive Office of Immigration Review (EOIR), which is part of the Department of Justice. The Board of Immigration Appeals (BIA), also part of EOIR, recently resolved a dispute over whether an immigration judge (IJ) could adjudicate a request for a waiver of inadmissibility by a U visa petitioner, when the petitioner was already in the IJ’s court for another matter. Matter of Khan, 26 I&N Dec. 797 (BIA 2016). The BIA held that USCIS has exclusive jurisdiction to decide whether to grant waivers of inadmissibility.

A prospective immigrant who wishes to come to the U.S. must establish that they do not fall under any of the categories of inadmissibility set forth by the INA. These include criminal convictions, national security issues, and health-related factors. See 8 U.S.C. § 1182(a). USCIS has discretionary authority, however, to admit many otherwise inadmissible people on a temporary nonimmigrant basis. Id. at § 1182(d)(3)(A)(ii). This is known as a waiver of inadmissibility.

The INA creates numerous categories of nonimmigrant visas for people who intend to come to the U.S. for a limited period of time before returning home. These include tourist and business visitor visas, student visas, and various types of work visas. The respondent in Khan was seeking a U visa, which is available to crime victims who are actively assisting law enforcement in an investigation or prosecution. 8 U.S.C. §§ 1101(a)(15)(U), 1184(p). The total number of U visas that may be issued each fiscal year is capped at 10,000, not counting spouses and parents of the principal beneficiaries. A U visa is valid for up to four years and can be extended under some circumstances.

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Marbury v. MadisonAn ongoing dispute in immigration law, which has taken on new urgency since January, involves the question of whether local authorities are obligated to cooperate with federal officials on immigration enforcement. Numerous judges have ruled that the Constitution prohibits the federal government from requiring local officials to cooperate. A recent court ruling held that a local policy requiring cooperation with federal officials is unconstitutional. LaCroix v. Junior, Nos. F17-376, F17-1770, order (Fla. 11th Jud. Cir., Mar. 3, 2017). While Immigration and Customs Enforcement (ICE) and others often claim that this issue only pertains to undocumented immigrants, it actually has the potential to affect all immigrants, from people here on tourist visas to permanent residents with green cards, and many citizens as well.

The term “sanctuary cities” refers—often pejoratively—to local jurisdictions that do not cooperate with ICE to some extent. ICE often places “detainers” on individuals in local custody when it suspects them of immigration violations. The detainer directs local officials to hold the person until ICE can take custody of them, even if the person is otherwise entitled to release. Many cities and counties have stated that they will not detain people solely based on a detainer, unless ICE also presents a warrant or court order. Reasons cited by local officials include due process concerns regarding warrantless detainer requests and Tenth Amendment concerns relating to the different roles of the federal and local governments.

Legislative and executive actions have sought to penalize “sanctuary cities.” Recent court decisions have directly addressed this issue, and the U.S. Supreme Court has more broadly limited federal authority to direct local officials. In Printz v. United States, 521 U.S. 898 (1997), the court ruled that requiring local officials to perform duties reserved to the federal government—in that case, enforcing provisions of the federal Brady Handgun Violence Prevention Act—violates the Tenth Amendment. The Constitution expressly reserves authority over immigration to the federal government, U.S. Const. Art. I § 8, cl. 4, so Printz would certainly seem to apply to federal efforts to direct local officials.

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