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EMPLOYER SANCTIONS AND DISCRIMINATION

The Immigration Reform and Control Act has effectively made every employer responsible for enforcement of a portion of the Immigration Act.  This is accomplished through a program known as Employer Sanctions.

Every employer must have proof that every employee is authorized to be employed in the United States.  This means that you must be able to provide documents to the employer proving your eligibility for employment, even if you are a U.S. citizen by birth.

Under this law, it is unlawful for a person or entity to hire, recruit or refer for a fee, an individual for employment in the United States if that person does not have authorization to be so employed.  This means that it is unlawful for an individual or a business to hire or continue to employ an alien knowing that the alien is unauthorized with respect to employment.  It is unlawful for a business or individual to hire any person unless the employer has inspected documents designated by the Immigration and Naturalization Service, which establish the identity and employment authorization of the employee and the employer has completed the required I-9 employment verification form.  The verification procedure must take place within 3 days of hiring.  However, if the employee can show within 3 days that he or she has applied for replacement of one of the required documents, the employer can wait an additional 21 days to complete the form.  The Immigration and Naturalization Service may inspect the employer’s I-9’s upon giving 3 days notice.  Employers may be fined $100 to $1,000 per employee for improper, incomplete or missing form I-9’s.  For knowingly employing an alien not authorized to work in the United States, and employers may be fined $1,000 to $3,000 per alien on the first violation.  Subsequent violations are more serious and can lead to criminal charges.  There are no exceptions to this law.

To protect the rights of legal workers who may appear to be foreign because of their accent or race, the law also prohibits employers from unfair immigration-related employment practices in the hiring process on the basis of national origin or citizenship.  Failure to comply with this law can also result in penalties and fines.

BUSINESS ACTIVITIES PERMISSIBLE ON A “B-1/B-2” VISITOR VISA OR UNDER THE VISA WAIVER PROGRAM

The following business activities are allowed in the United States while in the country in either  B-1/B-2 visitor status or under the “visa waiver program” [note references are to the U.S. State Department’s Foreign Affairs Manual (FAM)]:

Aliens Traveling to United States to Engage in Commercial Transactions, Negotiations, Consultations, Conferences, etc.

Aliens should be classified B-1visitors for business, if otherwise eligible, if they are traveling to the United States to:

(1) Engage in commercial transactions, which do not involve gainful employment in the United States (such as a merchant who takes orders for goods manufactured abroad);

(2) Negotiate contracts;

(3) Consult with business associates;

(4) Litigate;

(5) Participate in scientific, educational, professional or business conventions, conferences, or seminars; or

(6) Undertake independent research.

Aliens Coming to United States to Pursue Employment Incidental to Their Professional Business Activities

The statutory terms of INA 101(a)(15)(B) specifically exclude from this classification aliens coming to the United States to perform skilled or unskilled labor. Aliens coming to the United States for the purpose of pursuing employment which does not qualify them for A, C, D, E, G, H, I, J, L, O, P, Q, or NATO status must be classified as immigrants. Exception is made for aliens who may be eligible for B-1 business visas provided they meet the criteria of one of the categories listed below.

Members of Religious and Charitable Activities

Ministers on Evangelical Tour

Ministers of religion proceeding to the United States to engage in an evangelical tour who do not plan to take an appointment with any one church and who will be supported by offerings contributed at each

evangelical meeting.

Ministers of Religion Exchanging Pulpits

Ministers of religion temporarily exchanging pulpits with U.S. counterparts who will continue to be reimbursed by the foreign church and will draw no salary from the host church in the United States.

Missionary Work

Members of religious denominations, whether ordained or not, entering the United States temporarily for the sole purpose of performing missionary work on behalf of a denomination, so long as the work does not involve the selling of articles or the solicitation or acceptance of donations and provided the minister will receive no salary or remuneration from U.S. sources other than an allowance or other reimbursement for expenses incidental to the temporary stay. “Missionary work” for this purpose may include religious instruction, aid to the elderly or needy, proselytizing, etc. It does not include ordinary administrative work, nor should it be used as a substitute for ordinary labor for hire.

When Applicant Is Unable to Qualify for R Status

In cases where an applicant is coming to perform voluntary services for a religious organization, and does not qualify for R status, the B-1 status remains an option, provided that the applicant meets the requirements in 9 FAM 41.31 N9.1, even if he or she intends to stay a year or more in the United States.

Participants in Voluntary Service Programs

a. Aliens participating in a voluntary service program benefiting U.S. local communities, who establish that they are members of, and have a commitment to, a particular recognized religious or nonprofit charitable organization. No salary or remuneration should be paid from a U.S. source, other than an allowance or other reimbursement for expenses incidental to the volunteers’ stay in the United States.

b. A “voluntary service program” is an organized project conducted by a recognized religious or nonprofit charitable organization to assist the poor or the needy or to further a religious or charitable cause. The program may not, however, involve the selling of articles and/or the solicitation and acceptance of donations. The burden that the voluntary program meets the Department of Homeland Security (DHS) definition of “voluntary service program” is placed upon the recognized religious or nonprofit charitable organization, which must also meet other criteria set out in the DHS Operating Instructions with regard to voluntary workers.

c. You must assure that the written statement issued by the sponsoring organization is attached to the passport containing the visa for presentation to the DHS officer at the port of entry. The written statement will be furnished by the alien participating in a service program sponsored by the religious or nonprofit charitable organization and must contain DHS required information such as the:

(1) Volunteer’s name and date and place of birth;

(2) Volunteer’s foreign permanent residence address;

(3) Name and address of initial destination in the United States; and

(4) Volunteer’s anticipated duration of assignment.

Members of Board of Directors of U.S. Corporation

An alien who is a member of the board of directors of a U.S. corporation seeking to enter the United States to attend a meeting of the board or to perform other functions resulting from membership on the board.

Personal/Domestic Employees

Personal/Domestic Employees of U.S. Citizens Residing Abroad

Personal or domestic employees who accompany or follow to join U.S. citizen employers who have a permanent home or are stationed in a foreign country and who are visiting the United States temporarily. The employer-employee relationship existed prior to the commencement of the employer’s visit to the United States.

Personal/Domestic Employees of U.S. Citizens on Temporary Assignment in United States

a. Personal or domestic employees who are accompanying or following to join U.S. citizen employers temporarily assigned to the United States provided you are satisfied that:

(1) The employee has a residence abroad which he or she has no intention of abandoning;

(2) The alien has been employed abroad by the employer as a personal or domestic servant for at least six months prior to the date of the employer’s admission to the United States;

(3) In the alternative, the employer can show that while abroad the employer has regularly employed a domestic servant in the same capacity as that intended for the applicant;

(4) The employee can demonstrate at least one year experience as a personal or domestic servant by producing statements from previous employers attesting to such experience; and

(5) The employee is in possession of an original contract or a copy of the contract, to be presented at the port of entry, which contains the original signatures of both the employer and the employee.

b. The U.S. citizen employer is subject to frequent international transfers lasting two years or more as a condition of the job as confirmed by the employer’s personnel office and is returning to the United States for a stay of no more than four years. The employer will be the only provider of employment to the domestic employee and will provide the employee free room and board and a round trip airfare as indicated under the terms of the employment contract; and

c. The required employment contract has been signed and dated by the employer and employee and contains a guarantee from the employer that, in addition to the provisions listed in item (b) above, the employee will receive the minimum or prevailing wages whichever is greater for an eight hour work-day. The employment contract shall also reflect any other benefits normally required for U.S. domestic workers in the area of employment. The employer will give at least two weeks notice of his or her intent to terminate the employment, and the employee need not give more than two weeks notice of intent to leave the employment.

Personal Employees of Foreign Nationals in Nonimmigrant Status

A personal or domestic employee who accompanies or follows to join an employer who is seeking admission into, or is already in, the United States in B, E, F, H, I, J, L, M, O, P, or Q nonimmigrant status, must meet the following requirements:

(1) The employee has a residence abroad which he or she has no intention of abandoning (notwithstanding the fact that the employer may be in a nonimmigrant status which does not require such a showing);

(2) The employee can demonstrate at least one year’s experience as a personal or domestic employee;

(3) The employee has been employed abroad by the employer as a personal or domestic employee for at least one year prior to the date of the employer’s admission to the United States; OR

If the employee-employer relationship existed immediately prior to the time of visa application, the employer can demonstrate that he or she has regularly employed (either year-round or seasonally) personal or domestic employees over a period of several years preceding the domestic employee’s visa application for a nonimmigrant B-1 visa;

(4) The employer and the employee have signed an employment contract which contains statements that the employee is guaranteed the minimum or prevailing wages, whichever is greater, and free room and board, and the employer will be the only provider of employment to the employee;

(5) The employer must pay the domestic’s initial travel expenses to the United States, and subsequently to the employer’s onward assignment, or to the employee’s country of normal residence at the termination of the assignment.

Personal Employees/Domestics of Lawful Permanent Residents (LPRs)

Personal employees of all lawful permanent residents (LPRs), including conditional permanent residents and LPRs who have filed a Form N-470, Application to Preserve Residence for Naturalization Purposes, must obtain permanent resident status, as it is contemplated that the employing LPR is a resident of the United States.

Professional Athletes

a. Professional athletes, such as golfers and auto racers, who receive no salary or payment other than prize money for his or her participation in a tournament or sporting event.

b. Athletes or team members who seek to enter the United States as members of a foreign-based team in order to compete with another sports team shall be admitted provided:

(1) The foreign athlete and the foreign sports team have their principal place of business or activity in a foreign country;

(2) The income of the foreign-based team and the salary of its players are principally accrued in a foreign country; and

(3) The foreign-based sports team is a member of an international sports league or the sporting activities involved have an international dimension.

c. Amateur hockey players who are asked to join a professional team during the course of the regular professional season or playoffs for brief try-outs. The players are draft choices who have not signed professional contracts, but have signed a memorandum of agreement with a National Hockey League (NHL)-parent team. Under the terms of the agreement, the team will provide only for incidental expenses such as round-trip fare, hotel room, meals, and transportation. At the time of the visa application or application for admission to the United States, the players must provide a copy of the memorandum of agreement and a letter from the NHL team giving the details of the try-outs. If an agreement is not available at that time, a letter from the NHL team must give the details of the try out and state that such an agreement has been signed.

Yacht Crewmen

Crewmen of a private yacht who are able to establish that they have a residence abroad which they do not intend to abandon, regardless of the nationality of the private yacht. The yacht is to sail out of a foreign home port and cruising in U.S. waters for more than 29 days.

Investor Seeking Investment in United States

An alien seeking investment in the United States, including an investment that would qualify him or her for status as an E-2 investor. Such an alien is precluded from performing productive labor or from actively participating in the management of the business prior to being granted E-2 status.

Horse Races

An alien coming to the United States to perform services on behalf of a foreign-based employer as a jockey, sulky driver, trainer, or groomer.

Outer Continental Shelf (OCS) Employees

a. The Outer Continental Shelf Lands Act Amendments of 1978 (OCSLA) were enacted on September 18, 1978. 43 U.S.C. 1356 of OCSLA directs, that with specified exceptions, all units operating on the Outer Continental Shelf (OCS) must employ only U.S. citizens or lawful permanent resident (LPR) aliens as members of the regular complement of the unit. Subsequently, the U.S. Coast Guard issued regulations (33 CFR 141) which became effective on April 5, 1983. The regulations contain guidelines concerning exemptions available to units operating on the OCS.

b. Not included are nonmembers of the regular complement of a unit such as specialists, professionals, or other technically trained personnel called in to handle emergencies or other temporary operations, and extra personnel on a unit for training or for specialized operation; i.e., construction, alteration, well logging, or unusual repairs or emergencies.

Other Business Activities Classifiable B-1

While the categories listed below generally may be classified under the proper applicable nonimmigrant class, i.e., A, E, H, F, L, or M visas, you may issue B-1 visas to otherwise eligible aliens under the criteria provided below.

Commercial or Industrial Workers

a. An alien coming to the United States to install, service, or repair commercial or industrial equipment or machinery purchased from a company outside the United States or to train U.S. workers to perform such services. However, in such cases, the contract of sale must specifically require the seller to provide such services or training and the visa applicant must possess specialized knowledge essential to the seller’s contractual obligation to perform the services or training and must receive no remuneration from a U.S. source.

b. These provisions do not apply to an alien seeking to perform building or construction work, whether on-site or in-plant. The exception is for an alien who is applying for a B-1 visa for supervising or training other workers engaged in building or construction work, but not actually performing any such building or construction work.

Foreign Airline Employees

Foreign airline employee aliens who:

(1) Seek to enter the United States for employment with a foreign airline that is engaged in international transportation of passengers and freight;

(2) Are working in an executive, supervisory, or highly technical capacity; and

(3) Otherwise meet the requirements for E visa classification but are precluded from entitlement to treaty trader E-1 classification solely because there is no treaty of friendship, commerce, and navigation in effect between the United States and the country of the aliens’ nationality, or because they are not nationals of the airline’s country of nationality.

Employees of Foreign Airlines Coming to United States to Join Aircraft

Employees of foreign airlines coming to the United States to join aircraft may also be documented as B-1 visitors in that they are not transiting the United States and are not admissible as crewmen. Such applicants, however, must present a letter from the headquarters branch of the foreign airline verifying their employment and the official nature of their duties in the United States.

Clerkship

Except as in the cases described below, aliens who wish to obtain hands-on clerkship experience are not deemed to fall within B-1 visa classification.

Medical

An alien who is studying at a foreign medical school and seeks to enter the United States temporarily in order to take an “elective clerkship” at a U.S. medical school’s hospital without remuneration from the hospital. The medical clerkship is only for medical students pursuing their normal third or fourth year internship in a U.S. medical school as part of a foreign medical school degree. (An “elective clerkship” affords practical experience and instructions in the various disciplines of medicine under the supervision and direction of faculty physicians at a U.S. medical school’s hospital as an approved part of the alien’s foreign medical school education. It does not apply to graduate medical training, which is restricted by 212(e) and normally requires a J-visa.)

Business or Other Professional or Vocational Activities

An alien who is coming to the United States merely and exclusively to observe the conduct of business or other professional or vocational activity may be classified B-1, provided the alien pays for his or her own expenses. However, aliens, often students, who seek to gain practical experience through on-the-job training or clerkships must qualify under INA 101(a)(15)(H) or (L), or when an appropriate exchange visitors program exists (J).

Participants in Foreign Assistance Act Program

An alien invited to participate in any program furnishing technical information and assistance under section 635(f) of the Foreign Assistance Act of 1961, 75 Statute 424.

Peace Corps Volunteer Trainers

An alien invited to participate in the training of Peace Corps volunteers or coming to the United States under contract pursuant to sections 9 and 10(a)(4) of the Peace Corps Act (75 Statute 612), unless the alien qualifies for A classification. (See 9 FAM 41.113 PN11.1 for notation to be inserted on any visa issued under this legislation.)

Internship with United Nations Institute for Training and Research (UNITAR)

Participants in the United Nations Institute for Training and Research (UNITAR) program of internship for training and research who are not employees of foreign governments.

Aliens Employed by Foreign or U.S. Exhibitors at International Fairs or Expositions

Aliens who are coming to the United States to plan, construct, dismantle, maintain, or be employed in connection with exhibits at international fairs or expositions may, depending upon the circumstances in each case, qualify for one of the following classifications.

Foreign Government Officials

Aliens representing a foreign government in a planning or supervisory capacity and/or their immediate staffs are entitled to “A” classification if an appropriate note is received from their government, and if they are otherwise properly documented.

Employees of Foreign Exhibitors

Employees of foreign exhibitors at international fairs or expositions who are not foreign government representatives and do not qualify for “A” classification ordinarily are classified B-1.

Employees of U.S. Exhibitors

While alien employees of U.S. exhibitors or employers are not eligible for B-1 visas they may be classifiable as H-1 or H-2 temporary workers.

Aliens Normally Classifiable H-1 or H-3

There are cases in which aliens who qualify for H-1 or H-3 visas may more appropriately be classified as B-1 visa applicants in certain circumstances; e.g., a qualified H-1 or H-3 visa applicant coming to the United States to perform H-1 services or to participate in a training program. In such a case, the applicant must not receive any salary or other remuneration from a U.S. source other than an expense allowance or other reimbursement for expenses incidental to the alien’s temporary stay. For purposes of this Note, it is essential that the remuneration or source of income for services performed in the United States continue to be provided by the business entity located abroad, and that the alien meets the following criteria:

(1) With regard to foreign-sourced remuneration for services performed by aliens admitted under the provisions of INA 101(a)(15)(B), the Department has maintained that where a U.S. business enterprise or entity has a separate business enterprise abroad, the salary paid by such foreign entity shall not be considered as coming from a “U.S. source;”

(2) In order for an employer to be considered a “foreign firm” the entity must have an office abroad and its payroll must be disbursed abroad. To qualify for a B-1 visa, the employee must customarily be employed by the foreign firm, the employing entity must pay the employee’s salary, and the source of the employee’s salary must be abroad; and

(3) An alien classifiable H-2 shall be classified as such notwithstanding the fact that the salary or other remuneration is being paid by a source outside the United States, or the fact that the alien is working without compensation (other than a voluntary service worker classifiable B-1in accordance with 9 FAM 41.31 N9.1-5). A nonimmigrant visa petition accompanied by an approved labor certification must be filed on behalf of the alien.

Incidental Expenses or Remuneration

A nonimmigrant in B-1 status may not receive a salary from a U.S. source for services rendered in connection with his or her activities in the United States. A U.S. source, however, may provide the alien with an expense allowance or reimbursement for expenses incidental to the temporary stay. Incidental expenses may not exceed the actual reasonable expenses the alien will incur in traveling to and from the event, together with living expenses the alien reasonably can be expected to incur for meals, lodging, laundry, and other basic services.

Honorarium Payment

INA 212(q) provides that a B-1 nonimmigrant may accept an honorarium payment and associated incidental expenses for usual academic activities (which can include lecturing, guest teaching, or performing in an academic sponsored festival) if:

(1) The activities last no longer than nine days at any single institution or organization;

(2) Payment is offered by an institution or organization described in INA 212(q);

(3) The honorarium is for services conducted for the benefit of the institution or entity; and

(4) The alien has not accepted such payment or expenses from more than five institutions or organizations over the last six months.

Entertainers

a. Except for the following cases, B visa status is not appropriate for a member of the entertainment profession (professional entertainer) who seeks to enter the United States temporarily to perform services. Instead, performers shall be accorded another appropriate visa classification, which in most cases will be P, regardless of the amount or source of compensation, whether the services will involve public appearance(s), or whether the performance is for charity or U.S. based ethnic society. (See 9 FAM 41.31 N13.7 on B-2 visas for amateur performances.)

b. The term “member of the entertainment profession” includes not only performing artists such as stage and movie actors, musicians, singers and dancers, but also other personnel such as technicians, electricians, makeup specialists, film crew members coming to the United States to produce films, etc.

Participants in Cultural Programs

A professional entertainer may be classified B-1if the entertainer:

(1) Is coming to the United States to participate only in a cultural program sponsored by the sending country;

(2) Will be performing before a nonpaying audience; and

(3) All expenses, including per diem, will be paid by the member’s government.

Participants in International Competitions

A professional entertainer may be classified B-1if the entertainer is coming to the United States to participate in a competition for which there is no remuneration other than a prize (monetary or otherwise) and expenses.

Still Photographers

The Department of Homeland Security (DHS) permits still photographers to enter the United States with B-1visas for the purpose of taking photographs, provided that they receive no income from a U.S. source.

Musicians

An alien musician may be issued a B-1visa, provided:

(1) The musician is coming to the United States in order to utilize recording facilities for recording purposes only;

(2) The recording will be distributed and sold only outside the United States; and

(3) No public performances will be given.

Medical Doctor

A medical doctor otherwise classifiable H-1 as a member of a profession whose purpose for coming to the United States is to observe U.S. medical practices and consult with colleagues on latest techniques, provided no remuneration is received from a U.S. source and no patient care is involved. Failure to pass the Foreign Medical Graduate Examination (FMGE) is irrelevant in such a case.

Trainees

a. Aliens already employed abroad, who are coming to undertake training and who are classifiable as H-3 trainees. Department of Homeland Security (DHS) regulations state that in order for an alien to be classifiable as H-3, the petitioner must demonstrate that:

(1) The proposed training is not available in the alien’s own country;

(2) The beneficiary will not be placed in a position which is in the normal operation of the business and in which citizens and resident workers are regularly employed;

(3) The beneficiary will not engage in productive employment unless such employment is incidental and necessary to the training; and

(4) The training will benefit the beneficiary in pursuing a career outside the United States.

b. They will continue to receive a salary from the foreign employer and will receive no salary or other remuneration from a U.S. source other than an expense allowance or other reimbursement for expenses (including room and board) incidental to the temporary stay. In addition, the fact that the training may last one year or more is not in itself controlling and it should not result in denial of a visa, provided you are satisfied that the intended stay in the United States is temporary, and that, in fact, there is a definite time limitation to such training.

Artists

An artist coming to the United States to paint, sculpt, etc. who is not under contract with a U.S. employer and who does not intend to regularly sell such art-work in the United States.

Obtaining a Green Card Through Investment

(1)     Introduction

On November 2, 2007, the Wall Street Journal published an article: “Got

$500,000?  The U.S. Awaits (Government’s EB-5 Program Offers Foreign

Investors Green Cards for Job Creation)”.

A Federal program known as EB-5 (Immigrant-Investor Visa), administered by the

U.S. Citizenship & Immigration Services (“USCIS”), encourages foreign

investors to invest their way to living in the U.S.A.

Morrie Berez, chief of the EB-5 program at USCIS, stated: “The opportunity is

truly beautiful to individuals who want to live and contribute their energy in

the United States, and it creates economic growth and especially jobs for

Americans.”

There are 10,000 EB-5 Visas available every year, and only 867 issued in 2007.

Based on the favorable currency arbitrage (Euro/Dollar, UK Pound/Dollar) the

EB-5 Visa is a cost-effective, time-efficient way to immigrate to the U.S.

An investor (and immediate family) can now obtain green cards (Permanent US

Residency) with an EB-5 Visa by investing $500,000 into a Government approved

Regional Center (currently, over 30 Regional Centers).  Investors receive the

security of permanent US residence without repeated visa applications.

Citizenship may be obtained after five years.

The investment may be made in one of three forms with the EB-5 Visa:

1.   Invest $1,000,000 into a business and hire ten employees anywhere in the

USA, or

2.   Invest $500,000 and hire ten employees in an area where the unemployment

rate exceeds the national average by 150% or the rural population is less than

20,000, or

3.   Invest $500,000 into a Government designated Regional Center and avoid

direct employment.

The $500,000 investment is the least expensive way to satisfy the visa

requirements in order to receive the permanent green card after the two-year

period.  Although the first two types of investment lead to permanent green

card status, they require an additional showing that at the end of the two

year period, ten qualified individuals have maintained jobs in the targeted

employment area.

The minimum period of the investment is approximately three years.  Once an

investor emigrates they may apply to have ‘conditions’ removed after 1 year

and 9 months in the USA.  Processing takes up to six months. ‘Conditions

removal’ means that the investment is no longer tied to the EB5, and the

investor is then free to sell the investment.

The EB-5 Visa investment may be a passive investment, requiring no active

business management.  With a green card via an EB-5 investment visa investors

have the flexibility to take any job, run any business, retire and live

anywhere in the USA, with the benefits enjoyed by U.S. citizens including

property ownership or education.

The Only Thing Every Consumer Lawyer Needs to Know About Immigration Law

Although decided over a decade ago, Rodriguez v. Kline, 186 Cal. App. 3d 1145, (1986) is still the lead case in California regarding immigration status and its relevance to a plaintiff’s claim for damages in a personal injury context.  The so-called “illegal alien” defense may be raised at trial in limine to obtain a determination as a matter of law that plaintiff is an undocumented alien who is not legally allowed to be employed in the United States.  If the Court makes such a determination, the finder of fact must apply the wage scale appropriate in the plaintiff’s native country, which can be considerably less than in the United States.  Thus, plaintiff’s claim for diminished earnings can be substantially reduced.

Prior to the California Court of Appeal for the Second District’s decision in Rodriguez, the law was somewhat split.  In Metalworking Machinery, Inc v. Superior Court , 69 Cal. App. 3d 791, (1977) which dealt with discovery issues, it was established that a plaintiff’s legal status was discoverable where future wage loss was an issue.  However, in  Clemente v. State of California, 40 Cal. 3d 202, (1985) the California Supreme Court approved of the trial court’s ruling excluding proffered evidence of plaintiff’s citizenship (or rather, lack of legal immigration status in the United States) as speculative, remote and hence irrelevant to the damage issue under Evidence Code Section 352.  There was no evidence that the plaintiff intended to leave the United States and the court concluded it was speculative to presume that he might be deported sometime in the future.  It also concluded that any testimony by plaintiff’s wife regarding her husband’s immigration status, assuming she was even competent to testify, would be “highly prejudicial”.

In Rodriquez  the Court of Appeal set out a method for determining the “illegal alien” defense:

“We are convinced the competing concerns expressed in Clemente can best be reconciled by treating any question regarding a plaintiff’s citizenship or lawful place of residence as one of law, to be decided exclusively by the trial court outside the presence of the jury.  Resolution of this question is, of course, prerequisite to any ruling upon the admissibility of evidence regarding future earnings.

Today we require our jurors to perform such intellectually Herculean feats as establishing what actions a truly reasonable man might have taken in a given situation, fixing the appropriate price to be paid for a described amount of subjective pain and anguish, weighing in comparative balance varying degrees, and even dissimilar types, of fault, etcetera, etcetera.  Difficult as these labors may be, they nonetheless are of the rheostat variety in that any answer selected necessarily will fall within the applicable range and be capable of finding support in the evidence, i.e., a percentage of fault between none and total;  damages in a sum between nothing and millions.  However, one’s citizenship is comparable only to an on-off switch;  a person either is subject to deportation or he is not.  If he has been injured through the fault of another, his recovery should not be raised or lowered based upon the probabilities that the law’s commands actually will be carried out in any particular instance.

Therefore, whenever a plaintiff whose citizenship is challenged seeks to recover for loss of future earnings, his status in this country shall be decided by the trial court as a preliminary question of law. (See Evid.Code, s 310.)  At the hearing conducted thereon, the defendant will have the initial burden of producing proof that the plaintiff is an alien who is subject to deportation.  If this effort is successful, then the burden will shift to the plaintiff to demonstrate to the court’s satisfaction that he has taken steps which will correct his deportable condition.  A contrary rule, of course, would allow someone who is not lawfully available for future work in the United States to receive compensation to which he is not entitled. ”

If only it were that simple.  There are tomes of treatises and over a century of stare decisis  on the very issue of who is subject to deportation from the United States.  The labyrinth of regulations and the hodge-podge of contradictory statutory amendments that comprise our immigration law are considered by many to be one of the most complex areas of federal legislation. Given that tens or hundreds of thousands of dollars of potential future earnings may be dependent on the success or failure of the “illegal alien” defense, it is important for counsel to understand that concepts of citizenship and deportability are subject to interpretation.

The Rodriguez Test

The Rodriquez court sets up as the touchstone for future earnings based on U.S. standards and the plaintiff’s eligibility to avoid deportation. However, there are many permanent residents (i.e. aliens who have so-called “green cards”), who are deported each year for various reasons, often times related to criminal activity. Also, under the Marriage Fraud Act of 1986, permanent residency based on a marriage is conditional and must be renewed after two years. Contrarily, there are many aliens who are living in the United States on temporary “nonimmigrant visas”, who are allowed to work here under various restrictions. In many cases their authorization can be extended up to five years and in some cases, indefinitely. Finally, there are many foreigners who are in limbo, those who are permitted to stay and work here for a limited period of time, but who may later qualify for permanent residence. This group includes people granted so-called “amnesty” or those who apply for asylum. Thus, it is not enough to know whether the plaintiff has his or her “green card.” Much can be done by an alien to legally avoid deportation short of becoming a permanent resident. However, since many benefits under the Immigration & Nationality Act can take several months to many years to perfect, legal action should be taken promptly.

Some Basic Definitions

Under the Rodriguez Test the Courts are going to focus on the issue of deportability and eligibility for discretionary relief. Knowledge of a few basic definitions is essential. First, an “alien” means any person who is not a citizen or national of the United States, section 101(a)(3) of the Immigration and Nationality Act, (8 U.S.C. 1101 et.seq., hereinafter referred to as “I.N.A.”). This becomes important when one considers that there is a small but significant group of people who, although born abroad or raised abroad, may claim U.S. citizenship by birth in the United States or through ancestry. Often times the problem is that these individuals have no proof of their U.S. citizenship and applications to the Immigration and Naturalization Services (I.N.S.) or U.S. Passport Office may be very time consuming. Nevertheless, a bona fide claim to U.S. citizenship cannot be overlooked. Citizens are not deportable unless, in the case of naturalized citizens, there were willful material misrepresentations made when they applied for citizenship.

Aliens, even those who are permanent residents, can be deported under any of the hundred plus grounds enumerated in Section 241 of the I.N.A. These include the original “criminals, beggars, prostitutes and anarchists” as well as many other categories such as drug traffickers (no conviction necessary), communists and even those who failed to file annual registration forms (no longer required). Also, permanent residents who remained abroad for a long period of time, usually over a year, may be considered to have abandoned their right to live here.

Those who “entered without inspection” or violated or overstayed their legal status comprise the bulk of deportable aliens (Section 241(a)(2) of I.N.A.) This one ground covers those people who came illegally or stayed longer than permitted by their visas. For instance, most tourists are openly granted six months to stay in the country.

Furthermore, aliens who were improperly admitted because they were “excludable” by law existing at the time of such entry are also deportable under I.N.A. Section 241(a)(1). This so-called “re-entry” doctrine means that the even more formidable grounds of excludability found in Section 212 of I.N.A. come into play. For example, an alien who became a permanent resident before the law was changed to bar homosexuals can be deported if he makes a short innocent trip to Mexico and re-enters the United States. However, if he had never left, he could not be deported. In this example, from Rosenberg v. Fleuti, 374 U.S. 449, 10 LEd 2d 1000 (1963), the Supreme Court was so torn between maintaining Congress’s plenary power over immigration and the compelling facts of the case, that they determined that Mr. Fleuti did not in fact make a “meaningful departure” from the United States and thus did not “enter” the United States when he returned. The Fleuti doctrine is strictly limited to permanent residents who make brief innocent trips abroad. However, it points out two recurring themes in immigration law: the draconian nature of many of the law’s provisions, and the appellate court’s frequent romps in Wonderland, trying to carve just verdicts by drawing highly technical distinctions.

Although some of the grounds of deportability or excludability can be waived, usually it is required that the alien have a U.S. citizen or permanent resident spouse, parent or child. Also, it is easier to get a waiver for a convicted murderer than for someone who has a drug conviction, with the sole exception of possession of less than 30 grams of marijuana.

Finally, it should be pointed out that deportation proceedings are civil in nature. The Courts have long held that the sanction of deportation is not a “penalty” and accordingly all those Constitutional protections that apply in criminal proceedings are inapplicable. There is no right to government appointed counsel, jury trials, speed trials, exclusionary rules, or even the rules of evidence. Although the right to due process under the 5th Amendment applies, the Administrative Procedure Act is inapplicable and the immigration judges, most of whom were former INS trial attorneys, are still part of the Department of Justice, which also runs the INS. Thus, it will come as no surprise that nearly all aliens who are unlucky enough to be “ordered to show cause” why they should not be deported are found to be deportable.

Congress, nevertheless, has allowed certain categories of deportable aliens to apply for relief from deportation. Aliens who are not in proceedings may also apply for various benefits under the law. It is not the purpose of this article to attempt a comprehensive catalogue of the numerous “pigeonholes” that enable an alien to legalize his or her status, however, they fall into four basic categories: family re-unification, employment related skills, asylum and “amnesty.” Except for withholding of deportation under I.N.A. Section 243(h) based on establishing a clear probability of persecution, the relief is discretionary. Also, the alien must not be inadmissible under the numerous grounds contained in Section 212.

In many cases, there are quotas that limit the number of aliens who can become permanent residents in any given year. Also, certain countries, such as Mexico, have huge backlogs since only 20,000 quota numbers per year can be issued to any single country. Thus, timing becomes critical. Finally, there may be two ore even three different government bureaucracies involved, the INS, Department of Labor and State Department, each with its own regulations and processing delays.

Family Re-Unification Categories

Aliens who are the parents of U.S. citizens over 21 years of age, unmarried children under 21 of U.S. citizens (usually naturalized) or married to U.S. citizens may become permanent residents and are not subject to quotas. Also, unmarried sons, daughters and spouses of permanent residents, adult children of U.S. citizens and siblings of citizens over 21 years old may qualify for preference under the quota system. As mentioned above, benefits gained through a marriage of less than two years’ duration must be re-validated in regard to the bona fides of the marriage after a two years probation period. If the alien is no longer married or cannot show good cause why the marriage was terminated, he or she loses his status and becomes deportable.

Employment Related Skills

If an alien has a job offer for which it can be demonstrated that there are no minimally qualified “American workers” available and prevailing wage and labor conditions are met, he or she may be granted a labor certification. This requirement may be waived for certain professionals, intra-company transferees, religious workers and internationally famous scientists and artists. It is not necessary to be an engineer or systems analyst to qualify. There are many jobs, such as housekeepers, which “American workers” do not seem to be interested in and there are many skilled and semi-skilled occupations, such as specialty cooks or auto mechanics, in which most qualified workers are already employed. Although the quota for professionals is usually open, other worker may have to wait two or three years for quota numbers and certain countries, including Mexico, have even longer waits.

Asylum

Aliens who have a well founded fear of persecution on the account of race, religion, nationality, membership in a particular social group, or political opinion may be granted asylum in the United States. One year thereafter, subject to quota limitation, they may apply for permanent residence. Although the recent Supreme Court case of INS v. Cardoza-Fonseca, 107 S.Ct. 1207, 94 L.Ed., 2d 434 (1987), has lowered the standard of proof necessary to qualify for asylum, statistics indicate that relatively few applicants from U.S. backed countries undergoing civil strife (e.g. El Salvador, Guatemala, Philippines) are in fact granted asylum, at least compared to those fleeing communist controlled countries. Nevertheless, the INS has been required through litigation to grant employment authorization in non-frivolous applications until they can be adjudicated. In Los Angeles there is currently a one to two year backlog. Additionally, applicants can renew their claims de novo in deportation proceedings. There are also pending in Congress several bills that would provide a safe haven for El Salvadorans and Nicaraguans who came to the United States before a certain date.

“Amnesty”

Under the Immigration Control and Reform Act of 1986, aliens who have continuously lived in the United States since January 1, 1982 are eligible to apply for a newly created status of “temporary resident” They must have applied for legalization prior to May 4, 1988 and spouses and dependent children are not included unless they qualify on their own. Under a separate section of law, special agricultural workers who have worked at least 90 days during the period between May 1, 1985 and May 1, 1986, performing seasonal agricultural services may also qualify for temporary residence. These individuals, as well as certain Afghan, Polish, Ugandan and Ethiopian aliens, had until November 4, 1988 to apply.

However, even after the May 4 and November 4 deadlines passed, an alien who has resided in the United States for seven years and can show that his deportation would result in “extreme hardship” to himself or a United States citizen or permanent resident parent, spouse or child, can apply for suspension of deportation. Although by no means automatic, many aliens who did not qualify or did not apply for legalization may have very good suspension cases.

Temporary residents under the legalization section are allowed to remain and work in the United States for only 2 1/2 years. After an 18 month probation period they have one year to apply for permanent residency, at which time they still must be eligible, e.g., no crimes, welfare, etc. and either pass a basic English and citizenship exam or show they are enrolled in an authorized citizenship course. If they do not qualify for permanent residency, they become deportable.

Although the Rodriguez case briefly discusses the so-called “amnesty” law, which had just been enacted when the decision was rendered, it did not consider the temporary nature of this newly created status. Although it is expected that most temporary residents will eventually qualify for permanent residency, like the marriage cases, a condition subsequent must be met. Whether plaintiff will have to demonstrate to the trial judge that he or she can speak English or continues to have a viable marriage should be considered.

Nonimmigrants and All the Rest

There are many aliens who reside in the United States on temporary nonimmigrant visas. As long as they maintain their status and are eligible to renew their permission to remain here, they are not deportable. Some of these nonimmigrants have employment authorization and are allowed to work within certain very specific parameters. Often times stays can be extended to five years and certain classes may renew their stays and employment authorization for an indefinite period. Surely, these aliens should be entitled to some extent to loss earnings based on a U.S. standard even though they are not permanent residents.

Finally, under 8 CFR Sections 242.5 and 274a.12, of the INS regulations, various classes of aliens who may be deportable, but for which there are humanitarian reasons or other enumerated grounds may be allowed to temporarily stay in the United States and be granted work authorization.

Preparing to Meet the “Illegal Alien Defense”

Plaintiff’s counsel should retain an immigration expert as soon as the issue becomes apparent. Although it may take five years to get to trial, it may take equally long to obtain immigration benefits. Preventive law is the key. The expert should personally interview the plaintiff making sure that any language problem is corrected by use of a translator. The expert should be aware of any criminal, prior immigration or deportation history.

Plaintiff’s trial counsel should follow up with the expert and the client to make sure the case is progressing properly. Sometimes the client, who has not previously considered his illegal immigration status to be significant, needs encouragement to obtain the necessary documentation and complete the required forms. Make sure your client is aware that leaving the United States, fraudulent statements to the INS or American Consul or even minor criminal acts can result in deportation or a bar to future legal benefits.

Conclusion

It was naive of the Rodriguez court to think that deportability is like an on-off switch. Immigration law is a complex and dynamic area of federal regulation of which the State courts have very little comprehension. There are many factors that can affect an alien’s ability to legally remain in the United States. The issue is by no means as black and white as the Rodriguez decision implies. It is for this reason that the effective use of immigration law can be critical in maximizing recovery when future earnings are a significant portion of plaintiff’s claim.

LOVE, MARRIAGE, GREENCARDS AND DIVORCE

It is well known amongst the foreign born that the “easiest and fastest” way to become legal in the United States is through marriage to a United States citizen.  Far less known are the numerous laws and regulations that attempt to defeat aliens in improperly obtaining immigration benefits based on non-bonafide relationships.  In what may have been an over reaction by Congress based on exaggerated reports of abuse, numerous laws and amendments to those law have been passed in the last decade to ferret out immigration fraud while attempting to deal in a humanitarian manner with bonafide marriage that fail.  Unfortunately, this hodgepodge of federal law are not always consistent with the various states’ substantive and procedural law.  Often times, unjust outcomes can result if the immigration consequences of family law procedures are not considered.

I.  ALL YOU REALLY NEED TO KNOW – THE THREE QUESTIONS

As family law practitioners, there are probably only three things you need to know about immigration law:

1.  Is your client an alien?

2.  Is your client’s immigration status based on the marriage? (Or, can legal status be obtained at some future date based on the marriage?)

3.  If so, will a dissolution of that marriage result in your client losing that status or future eligibility?

II.  THE ANSWERS

A.  Is Your Client an Alien?

By definition, ” an alien is anyone who is not a citizen or national of the United States” ( Section 101(a)(3) of the Immigration and Nationality Act (INA), 8 USC §1101(a)(3)).   Under the 14th Amendment of the U.S. Constitution a U.S. citizen is either a person born in the territory of the United States (e.g.: one of the 50 states, Washington, D.C., Puerto Rico, etc.) and subject to its jurisdiction, or those who have been naturalized. This includes the children of naturalized parents, when both parents, or in certain circumstances one parent, naturalized when the child was under 18 years of age.  Nationals are people born in certain trust territories of the United States (e.g.: Guam, American Samoa, etc.).  Everyone else is an alien.

Aliens, at least once they set foot in the United States, come in three categories:  immigrants, non-immigrants, and undocumented.  Immigrants are those who intend to remain permanently in the United States and non-immigrants are those who are here legally here temporarily.  The “undocumented”, a losse term which I prefer to “illegal aliens”, can either be persons who came here without being inspected (e.g.: crossed the border surreptitiously), or those who came legally as non-immigrants but who have overstayed the time they were legally granted to remain here.

Immigrants who are legally in the country are called “lawful permanent residents” and are issued alien registration cards (official “Form I-551″ or the older and now expired “Form I-151″), which are commonly called “greencards” – because in the early 1950′s they were a sort of aqua-marine blue color.  In fact, for many years they have been white in color with red, and blue highlights, on a security coded laminated card that contains a picture and fingerprint of the alien.  Unfortunately, there are several other cards legally issued to aliens.  They include the “Temporary Resident Alien” (Form I-688) or “Employment Authorization” (Form I-688A, or I-688B) which resembles the alien registration card but are only evidence of a temporary right to remain in the country.

An alien, as well as his spouse and minor children, can be granted permanent resident status under several different grounds.  Primarily the goals of family reunification and the utilization of skilled and professional workers are the motivating forces behind current law.  Also many refugees and asylees are granted “greencards”. But there are as many obscure categories ranging from American Indians born in Canada to certain religious workers who also qualify (see Appendix II, Outline on Elligibility for Immigration Benefits).  As will be discussed in some detail below, certain aliens who gained their immigration status through marriage (or the marriage of one of their parents), or through investment, are only granted “conditional permanent resident” status and must file at some later date a petition to remove the “conditional status” or a waiver application in order to retain their legal right to remain here permanently.  By the way, “permanent resident status” isn’t really that permanent.  It can be lost in numerous ways.  For example, committing relatively minor crimes, becoming a public charge after immigrating, or even remaining out of the U.S. for over one year without obtaining a special re-entry permit.

Nonimmigrants, come here for a limited purpose, such as tourism, business or education.  There are currently over one hundred categories and subcatigories, ranging from  ”A-1″ diplomatic visa holders, to “R-1″ religious workers, not to mention “Trade NAFTA”, and “NATO” non-immigrant visa holders.  Some, like the E-1 “Treaty Traders” or E-2 “Treaty Investors” can remain nearly a lifetime in the U.S.; others, like the most popular B-2 “visitor for pleasure” are only granted a maximum six month stay, though extensions can be granted.  In most categories, especially categories that allow people to work or study in the United States, (E-1, E-2, F-1 or M-1 “students”, H-1 “professional workers”, J-1 “exchange visitors”, L-1 “intracompany transferees”, “Trade NAFTA” status, etc.) spouses and minor children are also granted derivative visas to come here while the principal alien is pursuing their employment or studies.

In regard to the “undocumented” I’d like to make one important comment.  Many non-immigration lawyers do not realize that legal immigration status is very transient and fluid.  It can be easily lost, and often regained.  Sometimes, nothing more that a short trip abroad, as in the case of an overstayed tourist, is enough to restore status, provided that upon the aliens return to the U.S. he or she in fact intends to do sight seeing or visiting friends for the period of time allowed.  Even those who “entered without inspection” can become legal if in deportation proceedings they can convince the immigration judge that they are statutory eligible and deserving of some form of relief from deportation.  Such relief can be an application for asylum, or an application for suspension of deportation for those continuously here for more than seven years for whom extreme hardship would result  if they were deported.  Aliens with job skills or those who have close relatives who are U.S. citizens or permanent resident aliens, or aliens who plan on marrying U.S. citizens or permanent resident aliens, can also legalize their status here.  Oftentimes there is a long wait created by quota backlogs.  Thus, many people may be here “illegally” today, but may be eligible and entitled to a legal status a some indefinite time in the future.

B. Is Your Client’s Immigration Status Based on the Marriage? (Or, Can LegalStatus be Obtained at Some Future Date Based on the Marriage?)

1.  Nonimmigrants:  As mentioned previously, aliens in the U.S. on a temporary stay may bring their spouse and unmarried children under 21 years of age with them on dependent status.  Thus, if your client is such a dependent, she or he may lose that status upon the dissolution of the marriage.  Unless they qualify for some independent status based on their own qualifications or family relationships, they may fall out of status and become deportable (which is not the same thing as actually being deported!).

It may be of interest to family law practitioners that the California Supreme Court has determined  that California trial courts do not lack jurisdiction to render a judgment of dissolution, despite the husband’s status as a nonimmigrant alien, since that status does not preclude a finding of residence for purposes of Civil Code section 4530(a),  In Re Marriage of Dick, 15 Cal App. 4th 144; 18 Cal Rptr. 2d 743 (April l993).  The Court found that the federal requirement of maintaining a residence in a foreign country is not necessarily inconsistent with establishing domicile under state law.  A nonimmigrant alien in the U.S. on a renewable visa may have the dual intent of remaining in this country indefinitely and of returning to his or her home country if so compelled.  At most, alien status can operate as an evidentiary fact against the alleged intent to remain in the state permanently.    Further, it is unnecessary for California courts to carry out immigration policy by denying nonimmigrant aliens a judicial forum when they otherwise meet domiciliary requirements and when they are subject to the state courts for other purposes.

2.  Lawful Permanent Residents:  This is the most critical area involving the inter-relationship between immigration law and family law.  As is more fully discussed in Appendix 1 – ” A Short Overview of Immigration Law”, in 1986 Congress passed the Immigration Marriage Fraud Act (IMFA) which has been significantly amended several times.  The crux of the legislative scheme is that aliens (and their unmarried children under 21 years of age) who have not been married at least two years at the time the alien’s application for permanent residence is adjudicated (i.e.: at the adjustment of status  or immigrant visa interview) are only granted “conditional permanent resident status”.  This conditional status, although in every other way the legal equivalent to full permanent resident status, expires after two years.  During the last three months (e.g.: 21st – 23rd  month after status was granted) a “joint petition” must be filed and signed by the husband and wife which must document that the marriage was not entered into for immigration purposes.  Usually, supporting documentation includes joint tax returns, bank statements, utility bills, insurance policies, and other evidence of financial commingling.  In really “good” cases evidence may include a deed to real property (the family home) or a baby’s birth certificate, all of course in the names of both husband and wife.  It is not necessary for the parties to have a conventional marriage, be living together or even have a viable marriage although the absence of such will lead to closer Immigration and Naturalization Service (INS) scrutiny and a more lengthy investigation.  All that the law requires under section 216(d) of the Immigration and Nationality Act (8 U.S.C. §1186a) is the following:

“(i)  the qualifying marriage – (I) was entered into in accordance with the laws of the place where the marriage took place, (II) has not been judicially annulled or terminated, other than through the death of a spouse, and (III) was not entered into for the purpose of procuring an alien’s entry as an immigrant; and (ii) no fee or other consideration was given (other than a fee or consideration to an attorney for assistance in preparation of a lawful petition) for the filing of a petition under section 204(a) or 214(d) with respect to the alien spouse or alien son or daughter.

In cases where the marriage has been terminated it is still possible to obtain a waiver of the requirement to file a joint petition.  Under section 216(c)(4) ( 8 US.C. §1186(c)(4)) there are three separate and independent grounds for a waiver:

a.  Extreme hardship would result if the alien were deported, such  extreme hardship resulting from circumstances occurring during the period of  conditional permanent resident status. – Note:  It is not necessary for the marriage to be bonafide in order to qualify for this waiver.

b.  The qualifying marriage was entered into in good faith by the alien spouse, but the marriage has been terminated (other than through death of the spouse).  Note:  The prior requirement that the divorce be for “good cause” and the requirement that the alien must be the petitioner for the divorce were eliminated by the amendments in the Immigration Act of 1990.

c.  The qualifying marriage was entered into in good faith by the alien spouse and during the marriage the alien spouse or child was battered by or was the subject of extreme cruelty perpetrated by his or her spouse.  This waiver does not  require that the parties have had their marriage dissolved.  The INS has defined this exception as including, but not limited to, “being the victim of any act or threatened act of violence, including any forceful detention which results or threatens to result in physical or mental injury.  Psychological or sexual abuse or exploitation shall be considered acts of violence.” 8 CFR §216.5(e)(3)(i).  A waiver based upon extreme mental cruelty must be supported by the evaluation of a professional recognized by the INS.  Licensed clinical social workers, psychologists and psychiatrists are professional s so recognized.  The information is to remain confidential.

Although the joint petition must usually be filed during the three month window, the waiver application  can be filed at any time.  Even if the joint petition or waiver is denied by the INS it can be renewed in deportation proceedings and through the appeal procedure eventually be reviewed by the courts.

Some additional points in regard to the effect of a dissolution of marriage for an aliens who acquired that status through marriage.  If the alien is already a “full” permanent resident than the fact the marriage has been terminated should not affect his or her status unless of course it was a sham marriage entered into solely for the purpose of acquiring immigration benefits.  Lawful permanent resident status can be revoked if it was based on a fraudulent application although a statute of limitations or eligiblilty for a waiver may result in the alien being allowed to retain legal status.  Also, if the alien acquired his or her status based on being a “dependent” of the principal alien eligible for permanent residency (ex.: principal alien qualified based on job skills or family relationship) then full permanent residence is automatically granted and a subsequent divorce, no matter how soon after permanent residency is granted, does not affect his or her immigration status.

Finally, a permanent resident married to a U.S. citizen is eligible to apply for naturalization (U.S. citizenship) after only three years if he or she has been a permanent resident for three years and married to the citizen for that period of time.  If the alien is not living with the citizen at the time the application for naturalization is adjudicated then the person must be a permanent resident for usual residency period of five years.  In other words, the divorce may cause the alien to wait an additional two years in order to become eligible to become a U.S. citizen.

3.  The Undocumented:  Even those in the U.S. illegally may be affected by the dissolution of their marriages.  First off, although In re Matter of Dick, 15 Cal App. 4th 144; 18 Cal Rptr. 2d 743 (April l993), involved legal nonimmigrants, I would assume the Courts reasoning would apply with even more force to those in the state illegally.  Unlike legal nonimmigrant who when they applied for their visas were required to state that the purpose of their stay in this country is only temporarily, undocumented and overstayed nonimmigrants clearly have the intent to remain in this country permanently.

A dissolution of marriage can have consequences on the immigration status of someone not legally in this country in several ways.  First, the alien may be entitled to some inchoate status based on the marriage.  For instance, the alien may be married to a U.S. citizen who has not yet prepared and filed the necessary applications with the INS., or the application may still be pending.  It currently takes nearly a year to schedule an interview at the Los Angeles District Office of INS on this type of case.

If the alien is married to a permanent resident (as opposed to a U.S. citizen), there may be a long quota backlog until a visa  can be issued abroad or adjustment of status to permanent resident status be granted at the local INS office.  Or, the alien’s spouse may be the principal applicant in an application based on his or her job skills or relationship to a U.S. citizen parent, sibling or adult son or daughter.  A final judgment of dissolution of marriage would legally cut off their spouse from claiming dependent status no matter how long or bona fide the marriage was.

An alien in deportation proceedings may be eligible for certain waivers or other benefits based on the marriage.  For instance, in order to be eligible for waivers of excludability for certain crimes or for having committed fraud in applying for immigration benefits, an alien must have a spouse, parent or child who is a U.S. citizen or permanent resident.  Asylum applications include spouse and children.  Suspension of deportation requires that an alien have resided more than seven years in the U.S. and prove extreme hardship to a spouse, parent or child who is a U.S. citizen or permanent resident.  There are many other situations where eligibility for relief may be based on the marriage even though one or both parties are not currently legally in the country.

On the other hand,  a final judgment of dissolution of marriage may be just what the immigration lawyer prescribes.  Two situations come to mind.  First, the very common situation where the alien is living with a U.S. citizen or permanent resident.  The alien may   want to marry the citizen or permanent resident but for the fact that they are still married to their spouse in the “old country”.  There are still countries which do not allow divorces (ex.: The Philippines)  Once the marriage is terminated the alien can marry his or her new love and be accorded the appropriate immigration benefits.  The second situation involves aliens who are the sons and daughters of usually recently naturalized U.S. citizens or permanent residents.  As unmarried children they may obtain a better (e.g.: shorter backlogged) quota classification.  In fact, only the unmarried children of permanent residents  can be petitioned for parents.  U.S. citizens can petition for both married and unmarried children but in most cases the quota is only current for the unmarried children.  Note however, that INS has adopted the concept of a “sham” divorce, which involves divorces wherein the parties only obtained the divorce for immigration purposes.  Usually this doctrine is applied to revoke permanent residency when the alien is granted permanent residency as an unmarried son or daughter of a U.S. citizen or permanent resident and then remarries his or her divorced spouse and files a petition to accord that spouse immigration benefits through the marriage.

C. If So, Will a Dissolution of That Marriage Result in Your Client Losing That Status or Future Eligibility?

1. Consult With a Certified Immigration Specialist

Although the possibility of a waiver for aliens with conditional permanent resident status was briefly discussed above,  quite frankly, the legal implications of the termination of the a marriage on the immigration status of the alien are not within the expertise of family law practitioners.  The alien should be referred to a qualified immigration lawyer, preferably a specialist certified by the State Bar of California Board of Legal Specialization in the field of immigration and nationality law.  As is simply illustrated by Appendix II “Outline on Elligibility for Immigration Benefits” the scope of immigration law is vast and complex.  Although your client’s immigration status may be affected by the dissolution of marriage proceedings, he or she may qualify for immigration benefits in their own right.  The proceedings, with the negotiated cooperation of the parties, can also be timed so as to have a minimum effect.  It is in the interest of both husband and wife to make sure that they each have the legal right to live and work in the U.S., or else the ability to pay support, exercise visitation rights, and comply with court orders may be jeopardized. From the family law practitioners point of view, the problems associated with enforcing U.S. family law court orders and judgments abroad should be avoided if at all possible.  Although attempting to have a former spouse “deported” may provide some sort of catharsis for the legal spouse, the departure may only be temporary and may result in the alien spouse avoiding his legal responsibilities.

There are two more topics that should briefly be mentioned although they do not necessarily involve dissolution of marriage proceedings.  They involve battered immigrant woman and children and widows of U.S. citizens.

1.  Rights of Battered Immigrant Women and Children:  In September of 1994 the Violent Crime Control and Law Enforcement Act of 1994 (the “Crime Bill”) was signed into law.  In it  are provisions which amended existing law to provide self petitioning rights for battered women and their children who are married to U.S. citizens or permanent resident aliens.  Thus aliens who have been held captive so to speak, by their husbands or wives who refuse to petition for them in order to exert psychological leverage can now petition themselves.  The law was amended to provide that the legal termination of a marriage may not be the sole basis for revocation of a petition filed by the U.S. citizen or permanent resident spouse.  Finally, a new section was added which authorizes the suspension of deportation of battered aliens or their children who have resided continuously in the U.S. for three years and them grants permanent resident status.  It additionally allows the Attorney General to determine what constitutes credible evidence of such abuse.  The law does not require that the alien be married to the abusing partner.  Only that the “battering or extreme cruelty” be done by a U.S> citizen or permanent resident alien.

3.  Rights of Widows and Widowers of U.S. Citizens:  A widow or widower of a U.S. citizen, if married for at least two years, may petition for permanent resident status within two years of the spouse’s death, if at the time of his or her death they were not legally separated or divorced and the alien has not remarried.   The unmarried children under 21 years of age of the widow  or widower can also be included.

III. CONCLUSION

Although love, marriage, greencards and divorce is an often repeated pattern, perils can arise for the family law practitioner not familiar with the basic tenants of immigration law.  Most what you need to know about the immigration consequences of marriage terminations can be explained with the following colloquy:

Question (which should be asked of all new clients):  Are you a U. S. citizen?  If affirmative, proceed as usual.

If not, ask the following two questions:  Is your immigration status in the U.S. based on your marriage to a U. S. citizen or lawful permanent resident?  If you are not a permanent resident (have your green card), is your immigration status based or your husband’s or wife’s nonimmigrant visa status?

If so, what is your current immigration status?  When did you acquire it?  When does it expire?

If client is a conditional permanent resident (“CR-1” or “CR-6” on “green card”) then they should be advised the following:  Between 21 and 24 months after he or she became conditional permanent resident (e.g.,  three months to one day before their status expires) he or she must file a joint petition with their spouse with documentation that the marriage was not entered into solely for immigration purposes.  If the joint petition or a waiver is not timely filed  then their conditional permanent resident status will automatically expire and they could be deported from the U.S.

If their spouse refuses to sign the joint petition or dissolution or marriage proceeding are pending then the alien spouse must file a waiver application.  Waiver applications can be filed at any time and can be filed at any time and can be based on any of three grounds:

a) An extreme hardship to alien based on circumstances arising after conditional resident status was granted.

b) Good faith marriage – The marriage was entered into on good faith by the alien spouse and has been terminated by divorce or annulment.

c) Battered spouse or child – The marriage was entered into in good faith and during the marriage, the alien spouse or child was battered or was the subject of extreme cruelty perpetrated by his or her U. S. citizen or permanent resident spouse or parent.

Denial of the joint petition or waiver application can be reviewed by the immigration judge or deportation proceedings and the government bears the burden of proof in showing the marriage was not bona fide.  If alien is a “full” lawful permanent resident then they may lose eligibility to apply for naturalization (U. S. citizenship) after only 3 years and will have to wait the usual 5 years.

If alien is a nonimmigrant dependent (e.g., on a temporary visa such as a F-2 spouse of a student, H-4 spouse of a specialty occupation or worker, etc.), then “dependent” status may be lost and the “dependent” spouse will have to apply for a new non-immigrant status based on their own eligibility if pssible.

If alien never acquired status based on the marriage but could have (e.g., spouse was a U. S. citizen or lawful permanent resident who never filed a petition on behalf of the alien spouse) then alien spouse and children may qualify to self petition if they can show that they qualify as a “battered spouse” or a “battered child.”

Finally, if there is any question that an aliens immigration status might be affected by the commencement of dissolution of marriage proceedings, a qualified immigration lawyer should be consulted.

Appendix I

A Short Overview of Immigration Law

In 1952 the basis of our current immigration law, the Immigration and Nationality Act (the “INA” )(8 U. S. Code), was passed into law.  Over the years it has been repeatedly amended with major revisions and interpreted by the courts with often less than logical or intuitive results.  The primary announced goals of the Act were to reunite families and protect the American Labor force.  Additionally, international treaties and humanitarian concerns created provisions for refugees, asylees, “amnesty” temporary residents, protected status and a whole host of other statutes which allow foreign born people to remain legally in the U. S. for various periods of time.  Additionally, there are provisions for aliens to come temporarily to the U. S. for purposes ranging from tourism and business to “specialty occupation” (professional) workers, intra company transferees and students.

Despite these many methods of legally coming to the United States, most categories are for a short period of time or limited purpose, and lawful permanent resident status remains an elusive if not impossible goal for those who are not very closely related to U. S. citizens, or do not have special skills or college degrees, or are not refugees.  Indeed, because of long back longs in the quota’s that restrict the number of relatives and qualified workers from immigrating to the Unites States, even those who may legally qualify for benefits under the law may have to wait many years.  For instance, the quota for spouses and minor children of lawful permanent residents is backlogged over four years for most countries and even longer for those born in Mexico and the Philippines.  The longest backlog is currently for Philippine born brothers and sisters of (usually naturalized U. S. citizens – currently at 17 years!  Since there is no quota limiting the number of “immediate relatives,” which includes the spouse and minor, unmarried children of U. S. citizens, the advantage of immigrating based on a qualifying marriage is obvious.  Additionally, under recent changes in  procedural law, it is now possible for an alien who came to the United States illegally (e.g., without being properly inspected and admitted into the U.S.) to “adjust their status” in the U. S. to that of a lawful permanent resident without returning to their home country to apply for an immigrant visa.  And, as a final incentive, adjustment of status applicants are immediately eligible to obtain an employment authorization document (“E.A.D.” or “work permit”) upon the filing of their application with INS and under certain circumstances can obtain permission to travel abroad and return to the U. S. legally while awaiting the final processing of their application.

By 1986 there was a belief that many of the “marriage petitions” with the INS filed were based on bogus marriages entered into solely for immigration benefits.  There has been much controversy regarding the statistics used to come to this conclusion, nevertheless, Congress passed the Marriage Fraud Act (I.M.F.A.) to create safeguards to protect the integrity of the Nation’s immigration laws.  The hurdles which were created by the new law were overbroad and created obstacles for even bonafide marriages that were terminated before the two year “probation period” established by IMFA.  For instance, the law required the alien to initiate divorce proceedings in order to qualify for the “good faith” waiver, thereby creating a race to the courthouse in order to eligible to retain lawful status.  Thus, in 1992, amendments were passed to ameliorate some of the harsh unintended consequences of the law.  Also, concerns regarding immigrant woman abused by their U. S. citizen husbands, and sympathy for widows, widowers and step children of U. S. citizens resulted in other amendments of a humanitarian nature.

Unfortunately, passage of Proposition 1987 in California has “upped the ante” for those residing in California in violation of U. S. immigration law.  With it becoming more difficult to obtain basic government benefits from driver’s licenses to primary education, the need to obtain lawful permanent resident status and legally maintain  it has become even more important.

EMPLOYER SANCTION PROVISIONS

A. Applies to all employees hired after 11/6/86 -even U.S. citizens

B. Employer must verify identity and employment eligibility of every new employee and complete I-9 form within 3 days of hiring.

C. Employer must accept any appropriate combination of documents. Cannot require “green card”.  Choice is up to worker.

D. Documents must only “reasonably appear to be genuine” and relate to person presenting them.  Good faith defense if I-9 properly done. There is no government agency that will verify authenticity of documents.

E. Person who uses false, forged or counterfeit document may be fined $250 – $2,000 per document and can be deported (no waiver).

F. Employer must keep “tickler” system to update expired documents.

G. Must be very thorough in completing I-9.  Fines are imposed for even technical violations such as not  providing dates, signatures or addresses, I.D. numbers on documents, or leaving blank spaces.

H. Investigations initiated by complaints (rejected job applicants, fired employees), other govt. agencies (DOL), by random computer list

I. Fines:  1st offense: Paperwork $100 -$1,000 per violation.  Unlawful hiring of an unauthorized alien $250 – $2,000 per violation.  Increases to $3,000 – $10,000 or criminal charges for 3rd offenses

J. Employer has right to hearing in front of ALJ.  Must request hearing within certain time limits.  Employer has right to counsel.  May be able to negotiate settlement with INS.

J. Anti-Discrimination Provisions:  If employer is found to be discriminating based on “national origin or citizenship” status, employer may be ordered to hire affected individual(s), pay back wages and may be fined $250 – $2,000 per individual (1st offense,) $2,000 -$5,000 (2nd offense), $3,000 – $10,000 (3rd offense)