OVERVIEW
This article is intended to serve many different purposes. In part it provides a general overview of U.S. immigration law, including how U.S. immigration laws are made and the agencies that implement and enforce immigration law. The article also discusses some of the key concepts in U.S. immigration law. Finally, the article discusses additional topics such as citizenship and public benefits issues.
THE CONSTITUTIONAL SOURCES OF IMMIGRATION LAW
The U.S. Constitution does not contain any specific language that gives either Congress or the President the power to control the entry of foreigners. The Constitution includes provisions giving Congress authority to regulate foreign commerce and to adopt a uniform rule of naturalization, but neither provision mentions immigration directly. By 1875, however, the Supreme Court of the United States had determined that the federal government, as represented by the Congress, has nearly complete power to determine immigration policies, thereby restricting the states from enacting immigration legislation of their own. The Supreme Court views controlling a nation’s borders as an implicit federal power, essential to the establishment and preservation of national sovereignty.
U.S. immigration law is primarily concerned with controlling the admission of aliens, including the criteria and means for their selection and the basis and procedure for their removal. Laws set the terms of an alien’s stay in the United States and describe their various rights and benefits and restrictions on their activity. Immigration laws also establish the grounds and procedures for the removal of aliens or, alternatively, relief from removal. They provide for administrative and judicial review of the proceedings involved; and create civil and criminal liability as a means of enforcing immigration controls.
The law of U.S. citizenship is traditionally treated as a part of immigration law. Citizenship law deals primarily with how citizenship is ordinarily gained by birth in the United States, or, under certain circumstances, by birth outside the United States when even one such parent is a U.S. citizen. U.S. law also includes provisions for obtaining citizenship by naturalization and its loss by denaturalization.
BRIEF HISTORY OF U.S. IMMIGRATION LAW
The United States has always had an ambivalent attitude toward immigration. While we like individual immigrants, we worry that large numbers of immigrants may hurt our country.
During its first 100 years the nation had virtually unrestricted immigration. Large numbers of people were needed in the early years to populate an enormous country and to provide the labor that building a nation demanded. Colonial attempts to limit immigration of “undesirable” persons, paupers, criminals, and those inclined to become “public charges” did not find their way into federal legislation until 1875. Over the years the number of qualitative controls on immigration increased steadily to include people with certain diseases, polygamists, the insane, anarchists and the feeble minded, among others. Congress also enacted overtly racist restrictions to deter immigration from particular regions of the world. 1952 saw the first successful attempt to coordinate all of the existing immigration laws into a single statute, the Immigration and Nationality Act of 1952 (INA). Originally combining “quality control” exclusions with a racist national origins quota system and a preference system for certain categories of immigrants, the INA remains the basic statute for current U.S. immigration law.
Since 1952 Congress has enacted several significant amendments to the INA. 1965 saw the end to the racist and controversial national origins quotas and the beginning of per-country quotas instead. That year Congress also reshuffled priorities in the immigrant visa selection system, strengthening the preferences for family members of U.S. citizens and resident aliens.
In 1986 Congress passed the Immigration Reform and Control Act of 1986 (IRCA). That law attempted to address the problem of illegal immigration in two ways. First, Congress granted a one-time amnesty for certain out-of-status foreign nationals, enabling them to become permanent residents. Second, Congress imposed employer sanctions on businesses who hired unauthorized workers. IRCA also established requirements for verifying the employment eligibility of workers. That verification is done on Form I-9.
The Immigration Act of 1990, often referred to as IMMACT 90, increased legal immigration by 35 percent, enabling more family-sponsored immigration and increasing employment-based immigration, while providing a “diversity” program for immigrants from countries traditionally underrepresented in the U.S. immigrant mix (e.g., Ireland and some African countries). This program is also known as the “green card visa lottery.”
In 1996 Congress adopted a get-tough attitude toward out-of-status foreign nationals, enacting the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA, pronounced IRA-IRA). The 1996 law increased penalties for many immigration violations. The law also affects legal immigrants, nonimmigrants, refugees and others in surprisingly many ways.
HOW IMMIGRATION LEGISLATION IS MADE
Laws in the United States are started in the U.S. Congress, which is divided into two chambers, the Senate and the House of Representatives. After an immigration bill is introduced in either the House or Senate, it is normally referred to either the Senate Judiciary Committee’s Subcommittee on Immigration and Refugee Policy or the House Judiciary Committee’s Subcommittee on Immigration, Refugees, and International Law. Some bills with important immigration provisions may be referred to other subcommittees, however, or to more than one subcommittee. This happened, for example, with the 1996 and 1997 welfare bills, which had important immigration restrictions.
The subcommittees hold hearings on the bill. From there the bill goes to the respective committee, which may make further changes, and which issues a formal report on the bill. Once the full committee votes out its version of the bill, the full House or Senate votes on the measure and may make further changes. From there the bill is introduced in the other legislative chamber, and goes through the same process.
Usually bills passed by both the House and Senate differ in language. In that case they go to a joint House-Senate conference committee. This committee issues a Conference Report outlining compromises made between the House and Senate versions of the bill and the committee’s recommendations. The unified bill is sent back to both the House and Senate floors for a final vote. If both houses pass an identical bill it is considered to have passed the Congress and then is sent to the President for approval or veto. If the President signs the bill it becomes law.
A statute is an act of the legislature declaring, commanding or prohibiting something. Depending on the context, a statute may mean a single act of a legislature, or a body of acts collected and arranged in a certain scheme. People sometimes refer to a statute as the “black letter law,” meaning that what the statute says is absolute, or in black and white. Unfortunately, like anything written, a statute is usually not as clear as people think or would like.
In U.S. immigration law, almost all immigration statutes are enacted at the federal level, by Congress. The main immigration statute, the Immigration and Nationality Act (INA), is codified as Title 8 of the United States Code (U.S.C.). The U.S.C. is the full collection of federal laws of the United States. Different titles of the U.S.C. deal with different subjects. Title 8 of the U.S.C. concerns immigration.
New immigration laws usually amend the INA. Thus, you will see references such as “section 301 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, amending INA section 212(a)(9), 8 U.S.C. section 1182(a)(9).”
While the INA provides the basic structure of the immigration system, the various governmental agencies that administer the immigration laws promulgate regulations to implement the statute. These regulations are published in the Federal Register, and incorporated into the Code of Federal Regulations (C.F.R.). Such regulations must be consistent, however, with the statute, as well as the U.S. Constitution.
The regulations of the Immigration and Naturalization Service (INS) are found in Title 8 of the C.F.R. The State Department’s immigration regulations are in Title 22 of the C.F.R., as are the J-1 regulations issued by the U.S. Information Agency (USIA). The Labor Department’s regulations are in Title 20 of the C.F.R.
AGENCIES INVOLVED IN ADMINISTERING IMMIGRATION LAW
The Departments of Justice and State are primarily responsible for administering the immigration laws. The State Department’s Bureau of Consular Affairs and Visa Office perform consular services overseas that include the initial screening and visa issuance or denial to potential immigrants and nonimmigrants. For most nonimmigrant admission categories, the applicant simply applies to a consular officer for a visa and demonstrates his or her qualifications. For a few nonimmigrant categories and nearly all immigrant categories, a “visa petition,” usually filed by a U.S. citizen or lawful permanent resident (not by the alien beneficiary who hopes ultimately to receive the visa) must be approved by the INS before the consular officer will consider the case. The petitioner takes the initiative to demonstrate to the INS that certain qualifications are met: for example, that the beneficiary has the family relationship to the petitioner necessary for certain immigrant categories, or that there is an insufficient supply of U.S. workers for the job the beneficiary would fill.
Aside from issuing visas, nearly all of the authority to administer and enforce the immigration laws is vested in the Attorney General, who in turn delegates most of her responsibilities to other officials in the Department of Justice (DOJ). The most important DOJ unit for immigration purposes is the INS, headed by a Commissioner. The INS maintains a headquarters office in Washington D.C., as well as four regional service centers and thirty-four district offices throughout the United States and overseas. The district offices, each headed by a district director, as well as the regional service centers, are the basic working units of the INS. Immigration examiners in the district office or at a regional service center rule on a wide variety of matters, including visa petitions, requests for extension of stay filed by nonimmigrants, requests for permission to work filed by nonimmigrants in those categories to which such permission may be granted, and applications for adjustment of status. In addition, the INS controls admission into the United States by inspecting travelers at over two hundred designated ports of entry and by patrolling the border.
The second important administrative unit in the DOJ is the Executive Office of Immigration Review (EOIR), which consists of two subunits, the immigration judges and the Board of Immigration Appeals (BIA). The immigration judges conduct removal hearings, while the BIA is an administrative appeals body separate and independent from the INS, and directly accountable to the Attorney General. The BIA decides appeals from decisions of immigration judges. The BIA issues several thousand decisions a year, most of which are not publicly available. These decisions are known as Matter of [last name of alien], or In re [last name of alien]. A few BIA decisions are designated as “precedents,” which means that they are binding on the BIA and immigration judges. Precedent decisions are printed in a series of volumes known as “Administrative Decisions Under Immigration and Nationality Laws of the United States,” or I. & N. Dec. for short. Thus, you may see references to citations such as “Matter of Smith, 21 I. & N. Dec. 123 (BIA 1997).” Appeals from the BIA to the federal courts is possible.
Alien
An “alien” is a foreign-born person who is not a citizen or national of the United States. INA section 101(a)(3), 8 U.S.C. section 1101(a)(3). Within U.S. immigration law there are four broad classes of aliens: (1) persons seeking admission to the United States; (2) persons admitted permanently as immigrants (also called permanent residents or green card holders); (3) persons admitted temporarily as nonimmigrants; and (4) undocumented persons or “illegal” aliens who are here without permission from the federal government. Generally, until a person has been admitted to the United States they have virtually no rights under U.S. law. Congress determines who will be admitted. Once they are admitted, however, aliens can claim certain general protections under the Constitution.
Nonimmigrant v. Immigrant
Aliens may come to the United States as nonimmigrants or immigrants. The primary distinction between nonimmigrants and immigrants is that most nonimmigrants must intend to return to their country of origin after their period of authorized stay has ended, while immigrants can and normally have the intent to stay permanently in the United States.
Nonimmigrants are persons who come temporarily to the United States for a particular purpose (e.g., as students, tourists, diplomats, or temporary workers). An applicant for a nonimmigrant visa usually must convince the INS or consular officer that they do not intend to immigrate to the United States and that they intend to return to their home at the end of their authorized stay. However, the State Department and the INS have long recognized a doctrine of “dual intent.” The INS has stated, for example, that the fact that a nonimmigrant visa applicant has “previously expressed a desire to enter the United States as an immigrant-and may still have such a desire-does not of itself preclude the issuance of a nonimmigrant visa to him nor preclude his being a bona fide nonimmigrant.” Matter of H-R-, 7 I. & N. Dec. 651, 654 (INS Reg. Comm’r 1958). Thus the possibility exists for an individual to apply for and receive a nonimmigrant visa after being denied an immigrant visa, or while waiting for an immigrant visa priority date to become current. Receiving a nonimmigrant visa in such circumstances is often difficult, however. Much depends on the facts of the particular case, the credibility of the applicant, and the attitude of the consular or INS decision maker.
It is often possible to extend periods of nonimmigrant stay, and under certain circumstances a nonimmigrant may “adjust status” to that of an immigrant, thereby gaining the right of permanent residence.
Immigrants are people who have a right to live permanently in the United States. They go by different names: lawful permanent residents (LPRs); green card holders; permanent residents. They all mean the same thing.
Aliens generally qualify for immigrant status by having a close family member or employer sponsor them. Once immigrant visa status is approved, they are admitted for lawful permanent residence and are issued an alien registration card (“green card”), which grants them rights of reentry and the right to live anywhere in the United States and to work in any way they choose.
Most resident aliens are eligible for U.S. citizenship after five years of residence. However, they need not naturalize, and may maintain lawful permanent resident status indefinitely.
Consular Processing Overseas v. Adjustment of Status in the United States
Aliens who qualify for one of the immigrant visa classifications can become permanent residents in either of two ways. They can obtain an immigrant visa overseas at a U.S. consular post in their homeland, through a procedure known as consular processing. Alternatively, they may be able to adjust their status through the INS in the United States. INA section 245, 8 U.S.C. section 1255. Adjustment permits an alien who is otherwise qualified to apply to the INS for lawful residence if a visa is immediately available. Adjustment, which is discretionary, may be denied if the INS officer believes that the applicant entered as a nonimmigrant with the preconceived intent of remaining as an immigrant. The INS official ruling on the adjustment application must determine that the usual requirements for approval of a visa petition are met and also must make the determinations ordinarily made by a consular officer (primarily, that the alien is not disqualified under one of the grounds of inadmissibility set forth in INA section 212(a), 8 U.S.C. section 1182(a)). As in consular processing determinations, the burden in adjustment of status is on the alien to demonstrate that he or she is not inadmissible at the time of adjustment.
Entry v. Admission
Until 1996, aliens who “entered” the United States, even surreptitiously, by evading inspection, were subject to deportation grounds and procedures. Aliens who had not entered the United States were subject to exclusion grounds and procedures. Aliens in deportation proceedings had greater constitutional and procedural rights than aliens in exclusion proceedings. This gave an advantage to those aliens who had crossed the border illegally and successfully evaded inspection rather than abide by the law and seek admission at the border. To eliminate this advantage, in 1996 Congress replaced the term “entry” with “admission” to mean the lawful entry of an alien into the country after inspection. INA section 101(a)(13), 8 U.S.C. section 1101(a)(13). Admitted aliens have greater rights than nonadmitted aliens under U.S. immigration law.
Exclusion v. Inadmissibility
With enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Congress changed the term “exclusion” to “inadmissibility” throughout the INA. Despite the change in terminology, the terms “exclusion” and “inadmissibility” are functionally equivalent. Both refer to the state of being ineligible for admission to the United States because of a failure to meet one or more of several predetermined admission criteria, or grounds of inadmissibility. INA section 212(a), 8 U.S.C. section 1182(a). Until 1996, the distinction between the terms “exclusion” and “deportation” was an important one, hinging on whether an alien had made an “entry” into the United States.
Removal v. Exclusion/Deportation
The IIRIRA also consolidated exclusion and deportation proceedings into one “removal” proceeding. Although there is now only one type of proceeding, some differences remain that are functionally equivalent to pre-IIRIRA exclusion and deportation. Consistent with pre-IIRIRA law, an alien who has not been admitted to the United States has the burden to prove admissibility. If an alien has been admitted to this country, however, the government has the burden to show deportability.
Visa v. Status
A visa stamp in an alien’s passport is not necessarily the same as that alien’s status in the United States. A visa is like a key to a door; you need it to enter the United States, but once you have been admitted you can ignore the key while you remain in the room (i.e., the United States). You may also have more than one visa stamp (i.e., more than one key to the U.S. door), but you use only one visa stamp to enter the United States. The I-94 card or other documentation that an nonimmigrant receives when admitted controls how long that alien may remain in the United States, not the visa stamp or expiration date on the underlying petition for visa classification.
For example, the INS may approve a petition for three years in the H-1B nonimmigrant worker classification. Because of reciprocity limits in some countries, however, the consular officer may stamp the H-1B visa in the passport as being valid for only three months. See, e.g., U.S. Dep’t of State, 9 Foreign Affairs Manual (FAM) Part IV Appendix C, Reciprocity Schedule for Iran (H visas limited to three months). When arriving in the United States, however, the alien is supposed to be admitted for the length of time stated on the underlying petition for visa classification (in this case, three years). Is the H-1B worker out of status four months later, because the visa is no longer valid? No. The alien is in valid immigration status because he was admitted for three years and the ending date on his I-94 card shows that.
Or consider an F-1 student whose F-1 visa expires two months after graduation, but who has applied for and received one year of optional practical training. Is the student out of status after her visa expires? No, because her status has been extended in the United States for 12 months.
If an alien leaves the United States for any reason, however, they need another “key” (i.e., visa) to reenter. If the alien’s visa is still valid, they may reenter on that visa. If an alien’s visa has expired, they need a new visa to be readmitted to the United States. Once in the United States again, status controls, not the visa validity period.
Nonimmigrant (Temporary) Visa Categories
An alien who wishes to come to the United States as a nonimmigrant must fit into one of numerous qualifying categories, designated by the symbols “A” through “S,” corresponding in general to the paragraphs in INA section 101(a)(15), 8 U.S.C. section 1101(a)(15), where they are defined. Most nonimmigrant categories require that the alien intend the stay to be temporary and that the alien has a residence in a foreign country that s/he does not intend to abandon. Most nonimmigrant categories have no limit on the number of aliens who can enter the United States.
Immigrant (Permanent) Visa Categories
INA section 203, 8 U.S.C. section 1153, sets forth three broad types of immigrant visa categories: family-sponsored (section 203(a)); employment-based (section 203(b)); and diversity-based (section 203(c)). There is no limit on the number of immediate relatives of U.S. citizens who may immigrate. Other immigrant visa categories, however, have annual numerical limits.
The terms “refugee” and “asylum seeker” both refer to people who fear persecution. The legal test is the same for both groups: they must show that they have a well-founded fear of persecution “on account of race, religion, nationality, membership in a particular social group or political opinion.” INA section 101(a)(42)(A), 8 U.S.C. section 1101(a)(42)(A). The procedures differ, however, based on location. Refugees are aliens who appeal for protection from persecution while still in another country. They do not reach U.S. soil until they have been processed, screened, and selected as refugees. Asylum seekers make the same appeal but are physically in the United States or at its border when they seek protection.
Typically those who gain admission through the overseas refugee programs are located in a refugee camp in a foreign country at the time of selection. Sometimes, however, they are selected and processed for refugee status while still within their countries of origin. The President retains the authority to decide yearly, after consultation with Congress, the number of refugees to be selected for admission from abroad, and from what areas worldwide.
Unlike beneficiaries of the overseas refugee programs, applicants for asylum reach the territorial United States on their own and only then claim protection against involuntary return. Applicants enter by several means: some enter on nonimmigrant visas and overstay; others enter without inspection before filing their claim; others ask for asylum at a border post or when they first encounter the border patrol; and still others are nonimmigrants still in status who file, for example, because a sudden political change at home makes it risky for them to return. No statutory ceiling exists on how many people can be given asylum each year. Historically 15-30 percent of applicants have successfully received asylum. In nearly all circumstances asylum applicants remain in the United States while their claims are reviewed, which can take years.
People selected as refugees or granted asylum status are eligible to remain permanently in the United States, and after completion of processing, are granted lawful permanent resident status.
Grounds of Inadmissibility
Well before any Congress enacted numerical limits on immigration to the United States, it acted to exclude aliens on qualitative grounds. Although there are many grounds of inadmissibility, the number of aliens actually barred is relatively small, and has decreased over time. Generally, the grounds of inadmissibility apply equally to immigrants and nonimmigrants.
The grounds of inadmissibility listed in the INA are exclusive. They cannot be enlarged by executive fiat or disregarded by executive officers or the courts. An alien may not be held inadmissible on a ground other than those given in INA section 212, 8 U.S.C. section 1182.
The several grounds of inadmissibility set forth in nine broad categories, forming an imposing list of obstacles. The enumerated grounds of inadmissibility are: health-related; criminal and related; national security; the likelihood of becoming a public charge (i.e., relying on public benefits); lack of labor certification (or for foreign doctors, lack of certain medical qualifications); having undergone removal in the past five years; failure to possess certain required documents; permanent ineligibility for citizenship and draft evasion; and a miscellaneous category that includes polygamists, international child abductors, and guardians of certain helpless aliens.
The grounds of inadmissibility are wholly distinct from the numerical requirements. For example, an alien who qualifies for immigrant visa classification under the family-sponsored first preference as the unmarried daughter of a U.S. citizen might nevertheless be inadmissible because she has AIDS.
Waivers of some of the grounds of inadmissibility are possible, but can be difficult to obtain.
Admission Procedures
Under our double-check admissions system, aliens wishing to enter the United States ordinarily must first obtain an appropriate visa at a U.S. consular post overseas. A visa is not a guarantee of entry to the United States, however. When an alien arrives at a port of entry, whether at an airport, seaport, or land border, an INS inspector makes an independent determination whether the alien should be admitted to the United States. This process is known as “inspection.” As discussed above, a person is not lawfully admitted to the United States until he/she has been inspected. A person may be physically on U.S. soil, but not be admitted yet. A person undergoing secondary inspection at an airport; a person in a car talking to an INS inspector at a border crossing post; passengers on a ship in a U.S. harbor waiting to deboard: all these are examples of people physically in the United States who have not yet been inspected and admitted.
The visa application process differs for nonimmigrants and immigrants. Nonimmigrants must prove that they are qualified for the visa category they are seeking. Upon arrival at the port of entry, the nonimmigrant applicant must present a passport and visa, if required, and may be asked questions bearing on eligibility for admission. If admitted, the nonimmigrant normally will be given an arrival-departure record (INS Form I-94), endorsed to show the visa status and period of admission. Form I-94, usually stapled to a passport page, is to be turned in when leaving the United States. The INS keeps a counterpart as a control.
A nonimmigrant may apply to the INS to extend his or her stay in the United States or change to another nonimmigrant status. A change of status does not require a new visa if the alien will not be leaving the United States. But neither does it eliminate the need for a visa; if the alien goes abroad and wishes readmission in the new status, a visa in the new classification is required.
The immigrant admission process is usually more elaborate. Nearly all potential immigrants must be sponsored by a family member who is a U.S. citizen or resident alien, or a U.S. employer. The immigrant visa application is usually examined carefully and questions are sometimes put relating to its contents, but ultimately to the issue of admissibility. Admission is recorded in the passport, and the alien registration card is processed for later delivery to the alien, who becomes a lawful permanent resident when the inspection ends.
Technically, any alien who appears inadmissible to the INS inspector at the port of entry is to be detained for a removal hearing. In practice, an inspector facing a long line will detour a questionable applicant to “secondary” inspection for more intensive interrogation. If the alien is not admitted there, the inspector may “defer” inspection to a later time at the local INS district office. The alien is usually paroled into the United States pending the deferred inspection. Alternatively, the inspector may serve the alien with a notice of removal hearing for determination of admissibility by an immigration judge.
In some circumstances the INS may permit an alien to withdraw his or her application for admission and return home. In that case, the alien’s visa is canceled and the issuing consulate is advised of the circumstances. By withdrawing an application for admission an alien avoids the legal restrictions placed on those who have undergone removal procedures in the United States.
Grounds of Deportability
The very first immigration law in 1798 granted the President authority to deport any alien found “dangerous to the peace and safety of the United States.” The Supreme Court has repeatedly sustained Congress’ power to provide for the banishment of aliens from the United States. The Court has justified this power as being inherent in our nation’s sovereignty–the same basis as Congress’ power to determine inadmissibility. The Court has rejected constitutional challenges to Congress’ deportation authority, holding that deportation is a civil rather than a criminal sanction.
INA section 237, 8 U.S.C. section 1227, contains six broad categories of deportation, many with numerous subparts. Some grounds of deportability are designed to protect the integrity of the admissions process. Others penalize aliens who have committed certain crimes. Others relate to fraudulent alien registration or entry documents. Some involve security-related grounds. One deportation ground targets aliens who become a public charge within five years of entry. Another ground is targeted at aliens who have engaged in immigration document fraud.
Some but not all of these deportation grounds may be waived by the Attorney General. An alien might seem safe from removal on some grounds after five years. However, if the alien leaves the country and then reenters, the reentry may activate the grounds of deportability again from the date of reentry.
Removal Procedures
In 1996 Congress consolidated the formerly separate exclusion and deportation hearing process into one removal proceeding. Despite the unified name, some aspects of the removal procedure differ, depending on whether or not the alien has been admitted to the United States. For example, an alien in removal proceedings who is seeking admission has the burden of proof to show “clearly and beyond doubt” that he or she is entitled to be admitted and is not inadmissible under INA section 212, 8 U.S.C. section 1182. By contrast, if an alien establishes that she is lawfully present pursuant to a prior admission, the INS has the burden of proof to establish “by clear and convincing evidence” that the alien is deportable.
All removal proceedings begin with a notice to appear. This is similar to the old orders to show cause. The notice to appear indicates the reasons the INS believes the alien is inadmissible or deportable, and the time and place of hearing before an immigration judge. The alien is also advised of the right to counsel at no expense to the government and given a list of free legal services programs.
Expedited Removal
“Expedited removal” is the term coined by the IIRIRA for the truncated procedures by which immigration officers may summarily determine that an alien is not admissible to the United States. This is also sometimes called “summary exclusion.” Under INA section 235(b), 8 U.S.C. section 1225(b), if an immigration officer determines that an arriving alien is inadmissible because they arrived with either no immigration documents or fraudulent documents, the officer may order the alien removed from the United States without a regular removal hearing. However, if the alien indicates either a fear of persecution or an intention to apply for asylum, the officer must refer the alien for an interview by an asylum officer.
Relief from Removal
There are many forms of discretionary relief from deportability and inadmissibility. The number and variety are such that it is advisable to seek legal counsel for guidance about the forms of relief that are most likely to succeed in a particular instance.
One common kind of relief from deportation is voluntary departure. VD, as it is often called, can be granted by the INS for up to 120 days before removal proceedings, or for up to 60 days by an immigration judge at the end of removal proceedings. INA section 240B; 8 C.F.R. sections 240.25, 240.26.
The IIRIRA limited voluntary departure in several ways. For example, extensions of voluntary departure are no longer possible. Nor may an alien granted voluntary departure obtain work authorization. This limits the usefulness of voluntary departure to help foreign nationals who have fallen out of status.
Many aliens believe that obtaining lawful permanent resident (LPR) status in the United States ends their immigration concerns. Once a green card holder, always a green card holder, they think. Wrong. LPR status can be lost, either intentionally or by accident, especially if the person remains outside of the United States for too long. As one author has pointed out, “[k]nowing how to keep your client an LPR is just as important as knowing how to obtain the status in the first place.” Endelman, “You Can Go Home Again — How to Prevent Abandonment of Lawful Permanent Resident Status,” 4-91 Immigration Briefings 23 (Apr. 1991).
LPRs who go abroad generally have three ways to reenter the United States. First, if they are out of the United States for less than a year, they normally reenter on the strength of their alien registration receipt card (INS Form I-551), more commonly called a green card. Second, they may apply in advance for a reentry permit (INS Form I-131). Third, they may apply for a special immigrant visa as a returning resident at a U.S. consulate or embassy overseas. None of these three ways is foolproof.
The IIRIRA may affect how INS inspectors treat returning LPRs. INA section 101(a)(13)(C), 8 U.S.C. section 1101(a)(13)(C) states that an LPR is not regarded as seeking an admission into the United States unless one of six factors apply. One of those factors is whether the LPR has been absent from the United States continuously for more than 180 days. This means as a practical matter that most LPRs who leave the United States for less than six months and then reenter should have no problems. The INS will not even consider them to be seeking an admission. By contrast, if an LPR has been outside the United States for more than six months, he or she will have to be formally readmitted, and all the grounds of inadmissibility will apply.
Another one of the six factors affecting whether an LPR will have to go through admission upon reentry is whether he or she is deemed to have abandoned LPR status. Here are some factors in deciding whether an LPR has abandoned his or her status: (1) length of absence; (2) whether the LPR maintained a residence in the United States while overseas; (3) whether the immigrant was employed in the foreign country; (4) whether his or her family accompanied him or her to the foreign country; and (5) whether the immigrant maintained ties with the United States, such as property holdings, bank accounts, and family.
Here are four practical tips for preserving LPR status:
- The LPR should continue to file U.S. tax returns and keep a U.S. bank account.
- When returning to the United States on a visit, the LPR may want to use a one-way rather than a round-trip ticket.
- When coming to the United States, if possible, the LPR should return to a dwelling they own, such as a house or a condominium, rather than to a rented apartment. If there is a rented apartment, the lease should not be on a weekly basis, but rather for a longer period of time.
- The LPR should leave some possessions permanently in the United States.
These are some of the more common tips to preserve LPR status. Any LPR who plans to be outside the United States for more than six months should consult a good immigration lawyer.
With rare exceptions (primarily concerning the children of foreign diplomats), anyone who is born in the United States is automatically a U.S. citizen. The citizenship of children born overseas is not entirely straightforward. Generally speaking, if one of the parents is a U.S. citizen who has lived in the United States for varying lengths of time after the age of 14, the child will be a U.S. citizen. Children born with dual citizenship who wish to retain both citizenships should use multiple passports to enter each country as a citizen and not use a visa whenever possible. This establishes a record of citizenship that will be useful if citizenship questions are raised.
Naturalization is ordinarily available to persons who have been lawful permanent residents for at least five years. The period of lawful permanent residence is reduced to three years for the spouse of a U.S. citizen, and also in certain other circumstances. An alien seeking naturalization must undergo an FBI check of their criminal record; must show that they have good moral character; and must normally show an elementary understanding of the English language and a knowledge and understanding of the fundamentals of U.S. history and government. INA section 312, 8 U.S.C. section 1423. Requirements for naturalization are simplified and expedited for aliens who are serving, or have served honorably, in the armed services of the United States, and for children.
All naturalization applicants must take an oath of allegiance to the United States. INA section 337, 8 U.S.C. section 1448. The oath states in part that “I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen.” Despite that language, becoming a naturalized U.S. citizen does not necessarily mean that the person must give up his or her prior citizenship. If another country decides to continue to treat one of its citizens as still a citizen, despite his or her acquisition of U.S. citizenship, the United States must and does respect that decision. Thus, many naturalized U.S. citizens are “dual” nationals, meaning that they are citizens of more than one country.
The benefits of citizenship achieved by naturalization are several: ability to run for most public office positions, the ability to vote, and entitlement to public benefits.
PUBLIC BENEFITS / RIGHTS OF ALIENS
The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Welfare Act) created a dramatic effect on the public benefits and government services received by legal immigrants. For the first time legal immigrants do not have equal access to the programs that their taxes fund. While the Welfare Act appears to ban all noncitizens from several major benefit programs, the full extent of the restrictions remains unclear and subject to several exemptions, the discretion of individual states and to the final interpretation of numerous ambiguous terms and provisions of the law. Moreover, some restrictions are likely to invite constitutional challenges in the courts, which could impede full implementation of the Welfare Act for years.
The Welfare Act’s full impact may not be felt for quite some time because several of its provisions will be implemented at the discretion of individual states, and other provisions will only be fully implemented after five years. As enacted, the Welfare Act effectively bars almost all noncitizens from receiving two significant federal programs: Food Stamps, the major food assistance program for the poor; and Supplemental Security Income (SSI), the cash assistance program for low-income persons who are aged, blind or disabled. The Welfare Act also allows states to exclude legal aliens from three federal programs administered on the state level: non-emergency Medicaid; social services funded by Title XX block grants, including care for children and disabled persons, and domestic violence programs; and the new Temporary Assistance for Needy Families (TANF) program, which replaced Aid to Families with Dependent Children (AFDC). Three groups of legal aliens are exempted from these restrictions: refugees and asylum seekers; legal residents who are veterans or are serving in the U.S. military and their dependents; and lawful permanent residents who have worked 40 “qualifying quarters” (10 years) for social security purposes.
Other provisions of the Welfare Act restrict access to “federal public benefits” to “qualified” aliens. Such aliens include only lawful permanent residents, refugees, persons paroled into the United States for at least a year and those granted asylum, withholding of deportation or conditional entrant status. Because the term “qualified alien” is defined so narrowly, many aliens who are lawfully in the United States and working, such as applicants for asylum or adjustment of status, and nonimmigrants in H-1B, F-1 or J-1 status, are not considered “qualified aliens” for federal public benefit purposes. In light of these and other public benefit restrictions, it is imperative that nonimmigrant visa holders have sufficient funds for themselves and their families, and that they know that taking public assistance may create immigration problems.
As many courts have noted, immigration law is one of the most complicated areas of U.S. law, second perhaps only to tax law in complexity. New immigration laws such as the IIRIRA make it even more difficult to properly and ethically advise foreign nationals. Add to the mix the human element: aliens who desperately want to come to or stay in the United States; family members or employers whose goals, desires or dreams may differ from that of the principal alien. All these factors make immigration law challenging and difficult.