An Overview of U.S. Immigration Law

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I. BASIC WAYS TO BECOME A U.S. CITIZEN

1. Be born in the United States or U.S. territory (“jus soli”)
2. Be born abroad with one or both parents U.S. citizens, and meet other requirements (“jus sanguinis”)
3. Naturalize – aliens who have been lawful permanent residents for five 5 (3 years if married to a U.S. citizen).

II. BASIC WAYS TO BECOME A LAWFUL PERMANENT RESIDENT (LPR)

(some categories may be subject to an annual quota) Includes spouse and unmarried children under 21 years old of principal applicant.

1. Through Close Relatives (appx 520,000 persons/year)
1. Spouses of U.S. citizens or permanent residents
2. Parents of U.S. citizens who are over twenty-one years old
3. Children of U.S. citizens
4. Unmarried children of permanent residents
5. Brothers or sisters of U.S. citizens who are over 21 years old
2. Through Employment – (appx. 140,000 persons/year)
1. Minister of Religion and certain other religious workers
2. Alien of “extraordinary ability”
3. Outstanding professor or researcher
4. Multinational executive or manager
5. Member of the “professions” holding an advanced degree or an alien of “exceptional ability”. Must prove alien will not take jobs from U.S. workers or adversely affect labor conditions in U.S. (“Labor Certification”), or that employment is in “national interest”.
6. A skilled worker (requiring at least 2 years of training or experience) or professional. “Labor Certification” required.
7. Unskilled worker – “Labor Certification” required
3. Through Investment – $1 million investment ($500,000 for certain economically distress areas) in U.S. business alien must actively manage, must create 10 new jobs for U.S. workers.
4. Through Asylum (refugee status if abroad) – Must prove alien has a “well founded fear of persecution” based on religion, race, national origin, political belief, or membership in particular social group. (appx. 140,000 persons/year)
5. Through Cancellation of Removal – (Actually a “defense” in removal (“deportation”) proceedings.) Must have been physically present in the U.S. for at least 10 years; be a person of “good moral character”, and must establish that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.
6. Diversity “Lottery” for certain countries – must have H.S. degree or skills. To increase immigration from under represented areas. (55,000 persons/year)

III. MAJOR CATEGORIES OF NON IMMIGRANTS

(Some may have permission to work in the United States for specific employers and periods of time. May include spouses and unmarried children under 21 yrs.)

1. Tourists (B-2) – coming to U.S. for pleasure – if citizen of “visa waiver program” eligible countries (Europe, Japan, Australia, etc.) no visa required but can only stay for up to 90 days w/o extensions of changes of status. If coming with visa – 6 months max but can get extension or change to other non-immigrant status.
2. Business people (B-1) – can’t work in U.S. but can meet with customers and colleagues, go to conferences, business training etc. Can have travel expenses reimbursed by U.S. entity. Same rules as B-2 visitors re: visas / visa waiver, admission periods, etc.
3. Crewman (C) – no changes or extensions
4. Diplomats and staff (A-1, A-2, A-3 or G-1/2) can work for foreign country in U.S. (consular staff, security, tourism, etc. – stay indefinitely as long as in diplomatic status)
5. Students (F-1) must register under SEVIS system (closely monitored), allowed to stay for completion of academic program, may get “practical training” and permission to work on campus or summers. Non academic programs (M-1) also possible but no practical training. Must get visa from consulate abroad.
6. Exchange students and scholars (J-1), may get training in U.S. or post doc degree. Included M.D.’s but may be subject to 2 yr. foreign residency requirement.
7. Intracompany transferees (L-1) can work as managers and executives of multination companies in U.S. Can stay up to 7 years but easily can become LPR’s
8. Professionals (H-1) Must have bachelors degree or higher for profession that normally requires bachelors degree or above. U.S. employer must sponsor. Valid for up to 6 years but can get extensions if applying for LPR. Limited by quota which now has backlog.
9. Treaty Traders and Investors (E-1 / E-2) Executives or managers of business entities in U.S. owned at least 50% by citizens of a country with treaty with U.S. which has made a substantial investment or does substantial trade between U.S. and treaty country. No set $ amount. Can be renewed indefinitely as long as business continues.
10. Trade NAFTA (TN) Currently Canadians and Mexican citizens with occupations on changing list. Includes “management consultants”, scientific technicians, teachers, RN’s etc. Only valid for one year at a time but can be renewed indefinitely.
11. Religious workers (R-1): ordained ministers and religious workers (lay people) doing religious vocations such as Sunday school teacher, deacon, cantor, choir director, etc.
12. Performers including musicians and actors (O-1) and members of international performing groups (P-1). Can only work for “event” in U.S. Need union or peer group approval.
13. Aliens of Distinguished Ability in the Arts, Science or business (O-1): Must be in top 5% of their “field”. Need union or peer group approval. Can be long term. Alternative to H-1.
14. Fiancé(e) (K-1) Coming to U.S. to marry U.S. citizen. Almost like LPR case.

IV. OTHER CATEGORIES OF ALIENS “LEGALLY” IN THE U.S. (Employment Authorized)

1. Asylum applicants with pending applications
2. Temporary Residents – aliens who were granted “amnesty” under IRCA and must file for permanent residency
3. Late filing “amnesty” applicants (aliens illegally in U.S. before 1/1/82) covered under several class actions now pending.
4. Temporary Protected Status – humanitarian reasons (eg: Bosnians)
5. Family Fairness Doctrine – Certain relatives of aliens granted “amnesty” who are waiting under quotas to become P.R.’s
6. Others – (individual humanitarian reasons, those with certain pending applications or extended voluntary departure, govt. witnesses,

V. GROUNDS OF EXCLUSION (applies to all aliens at time of “entry” at border or port of entry – includes LPR’S)

All aliens, whether immigrants or nonimmigrants must not be excludable to legally enter the U.S. (some grounds may be waived – usually must have US Citizen or permanent resident relative)

PLEASE NOTE: THIS IS A VERY TECHNICAL AREA OF LAW, ESPECIALLY ISSUES INVOLVING CRIMINAL ACTIVITIES. THE DEFINITIONS OF “CONVICTION”, “CRIME OF MORAL TURPITUDE”, “AGGREVATED FELONY” AND THE LEGAL CONSEQUENCES OF EXPUNGEMENTS AND OTHER POST CONVICTION RELIEF ARE NOT SETTLED LAW. ALSO, MANY OF THESE ACTIVITIES ARE ALSO VIOLATIONS OF STATE AND FEDERAL CRIMINAL LAWS AND MAY BE PROSECUTED AS SUCH.

1. A. Health related grounds.
2. B. Criminal and related grounds
   1. Crimes of moral turpitude (but one petty offense exception)
   2. Crimes involving controlled substances (drugs)
   3. Multiple convictions (non moral turpitude) aggravated sentence over 5 years.
3. C. Security Related Grounds – Terrorists
4. D Public Charge grounds
5. E. Labor Certification for Certain Immigrants -Must prove alien will not take job from U.S. citizens or adversely affect labor conditions.
6. F. Aliens who previously were deported or committed fraud
7. G. Unlawful presence in the US for 180 days / 1 year – With several important exceptions, an alien who remains illegally in the U.S. for 180 days and leaves the U.S. cannot legally return for 3 years and if illegally in U.S. for 1 year or more and leaves the U.S. cannot legally return for 10 years. Includes aliens otherwise eligible to get visa or “green card”. Waivers possible for spouse and children of U.S. citizens and permanent residents.

VI. GROUNDS OF REMOVAL (formerly call “deportation”)
(Applies all aliens not at border or port of entry – includes LPR’s)

All aliens, whether immigrants or nonimmigrants, can be deported after entering U.S. (some grounds may be waived – usually must have US Citizen or permanent resident relative).

Note: Deportation proceedings are civil in nature – no criminal safeguards or procedures apply (right to counsel & jury, 4th & 5th amendment, etc.)

PLEASE NOTE: THIS IS A VERY TECHNICAL AREA OF LAW, ESPECIALLY ISSUES INVOLVING CRIMINAL ACTIVITIES. THE DEFINITIONS OF “CONVICTION”, “CRIME OF MORAL TURPITUDE”, “AGGREVATED FELONY” AND THE LEGAL CONSEQUENCES OF EXPUNGEMENTS AND OTHER POST CONVICTION RELIEF ARE NOT SETTLED LAW. ALSO, MANY OF THESE ACTIVITIES ARE ALSO VIOLATIONS OF STATE AND FEDERAL CRIMINAL LAWS AND MAY BE PROSECUTED AS SUCH.

1. Entering U.S. without inspection
2. Excludable at entry (see above)
3. Non-immigrants who overstayed or violated terms of visa
4. Smugglers
5. Marriage fraud
6. Criminal Offenses: crimes of “moral turpitude” (but one petty offense exception), multiple convictions if aggregated sentence = 5+ yrs,
7. “Aggravated Felonies” – Very Serious because no waivers or relief in removal proceedings are usually available, mandatory detention is required, etc. May not be a felony or even that serious a crime. Includes crimes of violence, drugs, firearms/explosives, theft, domestic violence (including violation of restraining order), fraud, perjury, alien smuggling, money laundering, counterfeiting, forgery, child pornography, running a house of prostitution, slavery, national security offenses, obstruction of justice, bribery or conspiracy to any of the above.
8. Certain firearm offenses,
9. Use of fraudulent documents (includes use for completion of I-9)
10. Terrorists and national security grounds
11. Public charges – within 5 years. of entry
12. Drug Activities – no conviction necessary.

VII. RIGHTS AND OBLIGATIONS OF ALIENS

1. Constitutional rights applying to property, due process of law and criminal procedures apply to all people in U.S.
2. Right to own property in U.S. with some national security restrictions
3. Must pay income taxes like U.S. residents even if not legally in U.S.
4. Subject to draft laws regardless of status
5. Right to use courts (special federal “alien” jurisdiction)
6. Right to primary education (Plyler v. Doe)
7. Undocumented aliens are eligible for following types of “welfare”:
8. Emergency medical care (medical in Calif.), school lunch programs and pre-natal care for low income women (Saves $3 for $1 spent) H. U.S. citizen children of undocumented aliens eligible for: AFDC, food stamps, SSI if disabled, Medical/Medicade.

VIII. PROPOSALS FOR CHANGE

On May 25, 2006 the Senate voted 62 to 36 to approve compromise immigration reform legislation (S. 2611, the Comprehensive Immigration Reform Act of 2006), thereby setting the stage for what became a contentious House/Senate conference, in which the Senate-passed bill could not be harmonized with the harsh, enforcement-only bill (H.R. 4437) passed by the House in December 2007. The Senate bill, which adopted the “comprehensive” approach urged by President Bush, included a path to permanent legal status for most of the 12 million undocumented immigrants in the country, a new temporary worker program, significant increases in family- and employment-based permanent visas, important reforms to the agricultural worker program, significant reforms to the high-skilled immigration programs, and relief for undocumented high school graduates (DREAM Act). The bill also included some very harsh enforcement provisions and erosion of due process protections. After not being able to work out a resolution both the House and Senate set out on a course of “fact gathering” hearings (“road shows”) emphasizing testimony from their particular point of view (Senate pro-reform, House pro-enforcement). After the 2006 midterm elections, in which many of the politicians that opposed reform failed to be reelected, there was another attempt by the administration and the Senate to pass legislation. However, by July it was apparent that no compromise could be worked out. However, in the waning days of this session of Congress, there are three bills pending in Congress:

The Development, Relief, and Education for Alien Minors (DREAM) Act of 2007. Senator Richard Durbin (D-IL) will offer the DREAM Act as an amendment to H.R. 1585, the Department of Defense authorization bill, which will soon be debated in the Senate. The amendment will need 60 votes to pass. Its adoption would be a giant step forward for the DREAM Act, which would then stand an excellent chance of becoming law this year. If passed, the “Development, Relief, and Education for Alien Minors (DREAM) Act” would facilitate access to college for immigrant students in the U.S. The “DREAM Act” would also provide a path to permanent residence for ambitious immigrant youth who were brought to the U.S. as young children and who want to pursue higher education or military service, enabling them to contribute fully to our society.

AgJOBS (S. 340 and H.R. 371) is supported by both agricultural producers and farm workers. It addresses employers’ need for a stable, legal workforce while providing undocumented farm workers with a path to legalization, if they meet many requirements and continue working on our nation’s farms. This bipartisan bill would help the U.S. by keeping our farms in operation and providing American households with access to safe, homegrown food.

The “Save Our Small and Seasonal Business Act of 2007″ (S. 988) would help small business employers who are reliant on seasonal workers to hire qualified individuals to work during peak months. This exemption is set to expire on September 30, 2007 unless the provisions of S. 988 are passed. Write to your Senators, and urge them to provide relief for small business employers.

I. BASIC WAYS TO BECOME A U.S. CITIZEN

1. Be born in the United States or U.S. territory (“jus soli”)
2. Be born abroad with one or both parents U.S. citizens, and meet other requirements (“jus sanguinis”)
3. Naturalize – aliens who have been lawful permanent residents for five 5 (3 years if married to a U.S. citizen).

II. BASIC WAYS TO BECOME A LAWFUL PERMANENT RESIDENT (LPR)

(some categories may be subject to an annual quota) Includes spouse
and unmarried children under 21 years old of principal applicant.

1. Through Close Relatives (appx 520,000 persons/year)
1. Spouses of U.S. citizens or permanent residents
2. Parents of U.S. citizens who are over twenty-one years old
3. Children of U.S. citizens
4. Unmarried children of permanent residents
5. Brothers or sisters of U.S. citizens who are over 21 years old
2. Through Employment – (appx. 140,000 persons/year)
1. Minister of Religion and certain other religious workers
2. Alien of “extraordinary ability”
3. Outstanding professor or researcher
4. Multinational executive or manager
5. Member of the “professions” holding an advanced degree or an alien of “exceptional ability”. Must prove alien will not take jobs from U.S. workers or adversely affect labor conditions in U.S. (“Labor Certification”), or that employment is in “national interest”.
6. A skilled worker (requiring at least 2 years of training or experience) or professional. “Labor Certification” required.
7. Unskilled worker – “Labor Certification” required
3. Through Investment – $1 million investment ($500,000 for certain economically distress areas) in U.S. business alien must actively manage, must create 10 new jobs for U.S. workers.
4. Through Asylum (refugee status if abroad) – Must prove alien has a “well founded fear of persecution” based on religion, race, national origin, political belief, or membership in particular social group. (appx. 140,000 persons/year)
5. Through Cancellation of Removal – (Actually a “defense” in removal (“deportation”) proceedings.) Must have been physically present in the U.S. for at least 10 years; be a person of “good moral character”, and must establish that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.
6. Diversity “Lottery” for certain countries – must have H.S. degree or skills. To increase immigration from under represented areas. (55,000 persons/year)

III. MAJOR CATEGORIES OF NON IMMIGRANTS

(Some may have permission to work in the United States for specific employers and periods of time. May include spouses and unmarried children under 21 yrs.)

1. Tourists (B-2) – coming to U.S. for pleasure – if citizen of “visa waiver program” eligible countries (Europe, Japan, Australia, etc.) no visa required but can only stay for up to 90 days w/o extensions of changes of status. If coming with visa – 6 months max but can get extension or change to other non-immigrant status.
2. Business people (B-1) – can’t work in U.S. but can meet with customers and colleagues, go to conferences, business training etc. Can have travel expenses reimbursed by U.S. entity. Same rules as B-2 visitors re: visas / visa waiver, admission periods, etc.
3. Crewman (C) – no changes or extensions
4. Diplomats and staff (A-1, A-2, A-3 or G-1/2) can work for foreign country in U.S. (consular staff, security, tourism, etc. – stay indefinitely as long as in diplomatic status)
5. Students (F-1) must register under SEVIS system (closely monitored), allowed to stay for completion of academic program, may get “practical training” and permission to work on campus or summers. Non academic programs (M-1) also possible but no practical training. Must get visa from consulate abroad.
6. Exchange students and scholars (J-1), may get training in U.S. or post doc degree. Included M.D.’s but may be subject to 2 yr. foreign residency requirement.
7. Intracompany transferees (L-1) can work as managers and executives of multination companies in U.S. Can stay up to 7 years but easily can become LPR’s
8. Professionals (H-1) Must have bachelors degree or higher for profession that normally requires bachelors degree or above. U.S. employer must sponsor. Valid for up to 6 years but can get extensions if applying for LPR. Limited by quota which now has backlog.
9. Treaty Traders and Investors (E-1 / E-2) Executives or managers of business entities in U.S. owned at least 50% by citizens of a country with treaty with U.S. which has made a substantial investment or does substantial trade between U.S. and treaty country. No set $ amount. Can be renewed indefinitely as long as business continues.
10. Trade NAFTA (TN) Currently Canadians and Mexican citizens with occupations on changing list. Includes “management consultants”, scientific technicians, teachers, RN’s etc. Only valid for one year at a time but can be renewed indefinitely.
11. Religious workers (R-1): ordained ministers and religious workers (lay people) doing religious vocations such as Sunday school teacher, deacon, cantor, choir director, etc.
12. Performers including musicians and actors (O-1) and members of international performing groups (P-1). Can only work for “event” in U.S. Need union or peer group approval.
13. Aliens of Distinguished Ability in the Arts, Science or business (O-1): Must be in top 5% of their “field”. Need union or peer group approval. Can be long term. Alternative to H-1.
14. Fiancé(e) (K-1) Coming to U.S. to marry U.S. citizen. Almost like LPR case.

IV. OTHER CATEGORIES OF ALIENS “LEGALLY” IN THE U.S. (Employment Authorized)

1. Asylum applicants with pending applications
2. Temporary Residents – aliens who were granted “amnesty” under IRCA and must file for permanent residency
3. Late filing “amnesty” applicants (aliens illegally in U.S. before 1/1/82) covered under several class actions now pending.
4. Temporary Protected Status – humanitarian reasons (eg: Bosnians)
5. Family Fairness Doctrine – Certain relatives of aliens granted “amnesty” who are waiting under quotas to become P.R.’s
6. Others – (individual humanitarian reasons, those with certain pending applications or extended voluntary departure, govt. witnesses,

V. GROUNDS OF EXCLUSION (applies to all aliens at time of “entry” at border or port of entry – includes LPR’S)

All aliens, whether immigrants or nonimmigrants must not be excludable to legally enter the U.S. (some grounds may be waived – usually must have US Citizen or permanent resident relative)

PLEASE NOTE: THIS IS A VERY TECHNICAL AREA OF LAW, ESPECIALLY ISSUES INVOLVING CRIMINAL ACTIVITIES. THE DEFINITIONS OF “CONVICTION”, “CRIME OF MORAL TURPITUDE”, “AGGREVATED FELONY” AND THE LEGAL CONSEQUENCES OF EXPUNGEMENTS AND OTHER POST CONVICTION RELIEF ARE NOT SETTLED LAW. ALSO, MANY OF THESE ACTIVITIES ARE ALSO VIOLATIONS OF STATE AND FEDERAL CRIMINAL LAWS AND MAY BE PROSECUTED AS SUCH.

1. Health related grounds.
2. Criminal and related grounds
   1. Crimes of moral turpitude (but one petty offense exception)
   2. Crimes involving controlled substances (drugs)
   3. Multiple convictions (non moral turpitude) aggravated sentence over 5 years.
3. Security Related Grounds – Terrorists
4. Public Charge grounds
5. Labor Certification for Certain Immigrants -Must prove alien will not take job from U.S. citizens or adversely affect labor conditions.
6. Aliens who previously were deported or committed fraud
7. Unlawful presence in the US for 180 days / 1 year – With several important exceptions, an alien who remains illegally in the U.S. for 180 days and leaves the U.S. cannot legally return for 3 years and if illegally in U.S. for 1 year or more and leaves the U.S. cannot legally return for 10 years. Includes aliens otherwise eligible to get visa or “green card”. Waivers possible for spouse and children of U.S. citizens and permanent residents.

VI. GROUNDS OF REMOVAL (formerly call “deportation”)
(Applies all aliens not at border or port of entry – includes LPR’s)

All aliens, whether immigrants or nonimmigrants, can be deported after entering U.S. (some grounds may be waived – usually must have US Citizen or permanent resident relative).

Note: Deportation proceedings are civil in nature – no criminal safeguards or procedures apply (right to counsel & jury, 4th & 5th amendment, etc.)

PLEASE NOTE: THIS IS A VERY TECHNICAL AREA OF LAW, ESPECIALLY ISSUES INVOLVING CRIMINAL ACTIVITIES. THE DEFINITIONS OF “CONVICTION”, “CRIME OF MORAL TURPITUDE”, “AGGREVATED FELONY” AND THE LEGAL CONSEQUENCES OF EXPUNGEMENTS AND OTHER POST CONVICTION RELIEF ARE NOT SETTLED LAW. ALSO, MANY OF THESE ACTIVITIES ARE ALSO VIOLATIONS OF STATE AND FEDERAL CRIMINAL LAWS AND MAY BE PROSECUTED AS SUCH.

1. Entering U.S. without inspection
2. Excludable at entry (see above)
3. Non-immigrants who overstayed or violated terms of visa
4. Smugglers
5. Marriage fraud
6. Criminal Offenses: crimes of “moral turpitude” (but one petty offense exception), multiple convictions if aggregated sentence = 5+ yrs,
7. “Aggravated Felonies” – Very Serious because no waivers or relief in removal proceedings are usually available, mandatory detention is required, etc. May not be a felony or even that serious a crime. Includes crimes of violence, drugs, firearms/explosives, theft, domestic violence (including violation of restraining order), fraud, perjury, alien smuggling, money laundering, counterfeiting, forgery, child pornography, running a house of prostitution, slavery, national security offenses, obstruction of justice, bribery or conspiracy to any of the above.
8. Certain firearm offenses,
9. Use of fraudulent documents (includes use for completion of I-9)
10. Terrorists and national security grounds
11. Public charges – within 5 years. of entry
12. Drug Activities – no conviction necessary.

VII. RIGHTS AND OBLIGATIONS OF ALIENS

1. Constitutional rights applying to property, due process of law and criminal procedures apply to all people in U.S.
2. Right to own property in U.S. with some national security restrictions
3. Must pay income taxes like U.S. residents even if not legally in U.S.
4. Subject to draft laws regardless of status
5. Right to use courts (special federal “alien” jurisdiction)
6. Right to primary education (Plyler v. Doe)
7. Undocumented aliens are eligible for following types of “welfare”:
   Emergency medical care (medical in Calif.), school lunch programs
   and pre-natal care for low income women (Saves $3 for $1 spent)
8. U.S. citizen children of undocumented aliens eligible for: AFDC, food stamps, SSI if disabled, Medical/Medicade.