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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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Algodones sand-dune-fenceThe Deferred Action for Childhood Arrivals (DACA) program, first announced in June 2012, allows undocumented immigrants who arrived in the U.S. as children to remain here and work, provided they meet certain eligibility criteria. The purpose of the program is to focus immigration enforcement priorities away from people who contribute to American society. The status of the program under the new administration, however, remains uncertain. Some recent enforcement actions have resulted in the arrest and detention of DACA beneficiaries. One such individual has filed suit against the U.S. Department of Homeland Security (DHS) and an official of its agency, Immigration and Customs Enforcement (ICE). Ramirez Medina v. Asher, No. 2:17-cv-00218, pet. for writ of habeas corpus (W.D. Wash., Feb. 13, 2017).

DACA constitutes an agreement by the federal government to refrain from immigration enforcement actions against approved individuals for a two-year period. This was made renewable for additional two-year periods in 2014 and 2016. Beneficiaries are also granted work authorization. They are not, however, granted lawful immigration status, which is outside of the president’s authority under federal immigration law. The program attracted close to a million applications, more than 700,000 of which were approved.

To be eligible, a candidate had to be under the age of thirty-one as of June 15, 2012, and had to have entered the U.S. prior to their sixteenth birthday and before June 15, 2007. They had to be physically present in the U.S. without lawful immigration status on both June 15, 2012 and the date they applied for DACA. They could not have a felony or major misdemeanor conviction, nor more than three minor misdemeanor convictions. They had to pass a national security-related background check. Finally, they had to have a high school diploma or GED, honorable discharge from the U.S. Armed Forces, or current enrollment in school.
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marriageThe Immigration and Nationality Act (INA), the nation’s primary source of immigration law, allows noncitizens who marry U.S. citizens to obtain lawful permanent residence without numerical limitations. In order to address concerns about marriages whose sole intent is to facilitate immigration benefits, the INA sets restrictions on people who seek lawful permanent residence after less than two years of marriage. A violation of these restrictions can result in a finding of deportability, but the INA allows waivers in some situations. The Board of Immigration Appeals (BIA) recently ruled on a waiver claim in a case involving marriage fraud. Matter of Tima, 26 I&N Dec. 839 (BIA 2016). The ruling offers an extensive summary of this area of immigration law but resulted in the denial of the respondent’s claims.

An individual who obtains lawful permanent resident (LPR) status through marriage to a U.S. citizen is granted “conditional permanent resident” status if, at the time they obtain such status, they have been married for less than two years. 8 U.S.C. § 1186a. Within two years of obtaining conditional status, they must apply to have the conditions removed. The purpose of this two-year conditional period is to give the government time to investigate whether the marriage was solely entered into for immigration purposes.

If the parties are no longer married after two years, that is not automatic evidence of marriage fraud, but it will likely bring additional scrutiny from investigators. If the government concludes that the marriage was a sham, or if the immigrant fails to apply by the two-year deadline, conditional permanent residence is automatically revoked. The immigrant may then be subject to deportation. 8 U.S.C. § 1227(a)(1)(D)(i).

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visa mapThe new president issued three executive orders (EOs) in January 2017 regarding immigration. The most recent of the three, EO 13769, is the most well-known. Descriptions range from a “travel ban” to a “Muslim ban,” depending on who is describing the order. The EO, which bars entry to the U.S. from seven countries with majority-Muslim populations, is currently subject to a temporary restraining order, and multiple court challenges are pending in courts around the country. New Jersey’s Newark Liberty International Airport saw a considerable amount of confusion after the issuance of the EO, when federal agents attempted to enforce the order without clear guidelines. All we can offer is a very general overview of the EOs, since their impact—and even their legal validity—remains uncertain.

The first order, EO 13767, is entitled “Border Security and Immigration Enforcement Improvements.” 82 Fed. Reg. 8793 (Jan. 25, 2017). It directs immigration officials to increase patrols and deportations in response to an alleged “recent surge of illegal immigration at the southern border with Mexico.” Id. at 8793. It also makes “the immediate construction of a physical wall on the southern border” the official policy of the federal government. Id.

EO 13768 is entitled “Enhancing Public Safety in the Interior of the United States.” 82 Fed. Reg. 8799 (Jan. 25, 2017). It primarily sets enforcement priorities with regard to deportations. The order also addresses so-called “sanctuary jurisdictions,” which it defines as non-federal governments that “willfully refuse to comply with” a statute regarding communication between local and federal law enforcement. Id. at 8801, 8 U.S.C. § 1373. The federal government is probably limited, however, in its authority to require local governments to participate in immigration enforcement, an area of exclusively federal jurisdiction under the Constitution. See, e.g. Printz v. United States, 521 U.S. 898 (1997); South Dakota v. Dole, 483 U.S. 203 (1987).

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Pulaski SkywayA ruling from the Administrative Appeals Office (AAO) of U.S. Citizenship and Immigration Services (USCIS) establishes new eligibility criteria for “national interest waivers” (NIWs). Matter of Dhanasar, Int. Dec. No. 3882, 26 I&N Dec. 884 (AAO 2016). The NIW is a type of employment-based immigrant visa petition in the second preference (EB-2) category. Normally, a petition for an EB-2 immigrant visa must include an employment offer and a labor certification from the Department of Labor. The NIW waives those requirements. USCIS had relied on the decision in Matter of N.Y. State Dep’t of Transp. (“NYSDOT”), 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998), to determine eligibility for NIWs. The decision in Dhanasar overturns NYSDOT and establishes a more consistent standard.

EB-2 visas are available to individuals “who are members of the professions holding advanced degrees” or who have “exceptional ability in the sciences, arts, or business.” 8 U.S.C. § 1153(b)(2)(A). According to the statute, the individual’s exceptional ability must have the potential to “substantially benefit” the nation. Id. The individual must have an offer from an employer in the U.S., and they must obtain a labor certification, which basically shows that hiring an immigrant will not adversely affect U.S. workers. 8 C.F.R. § 204.5(k)(4)(i); 20 C.F.R. §§ 656.17(h)-(i).

USCIS is authorized by statute to waive the job offer and labor certification requirement by issuing an NIW, if doing so would “be in the national interest.” 8 U.S.C. § 1153(b)(2)(B)(i), 8 C.F.R. § 204.5(k)(4)(ii). The NYSDOT decision established a three-part test that required a prospective immigrant to establish (1) that there is “substantial intrinsic merit” in their field of employment, (2) that the likely benefits of their work will be “national in scope,” and (3) that requiring a labor certification would “adversely affect[]…the national interest.” Dhanasar, 26 I&N Dec. at 887, quoting NYSDOT, 22 I&N Dec. at 217.

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