Steven C. Thal
Attorney at Law
Know the Status
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CITIZEN
LAWFUL PERMANENT RESIDENT
CONDITIONAL PERMANENT RESIDENT
ASYLEE OR REFUGEE
NONIMMIGRANT VISA HOLDER
UNDOCUMENTED
CITIZENS
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BORN IN THE USA
BORN ABROAD TO USC’S
DERIVED CITIZENSHIP
Child Citizenship Act of 2000
1 USC PARENT
CHILD UNDER 18
RESIDING IN LEGAL & PHYSICAL CUSTODY
WITH PARENT AFTER LEGAL ENTRY AS LPR
(INCLUDES ADOPTED CHILDREN IF ADOPTION IS FINAL)
NATURALIZED
ADVANTAGES OF CITIZENSHIP
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CAN’T BE DEPORTED
CAN VOTE
CAN PETITION FOR CERTAIN RELATIVES
JOB SECURITY CLEARANCES
CAN GET US PASSPORT
PROPERTY OWNERSHIP & TAXES
PUBLIC BENEFITS
Lawful Permanent Resident and
Conditional Permanent Resident
• LPR– Can live and work in U.S. indefinitely, green card
good for 10 years and renewable, subject to
deportation/removal, subject to admissibility issues if
travels outside U.S.
• Lawful Permanent Resident and Conditional Permanent
Resident
• Conditional Permanent Residency-good for 2 years,
requires petition to remove conditions on residence:
marriage & investors
Asylees and Refugees
• Asylees granted protection from
persecution within U.S. by USCIS asylum
office or immigration judge
• Refugees processed outside U.S. for
protection against persecution
• Both can apply to be LPR after 1 year of
status in U.S.
• Both are authorized to work incident to
status and can get Refugee Travel Doc.
Nonimmigrant Visa Holders and
Visa Waiver
• Coming to U.S. for Temporary
Nonimmigrant purpose
• Having a visa doesn’t guaranty entry
• I-94 Record of Admission controls, not visa
• If overstay can be deported, excluded, voids
visa, and can only reapply for new visa in
home country, possible 3 and 10 year bars
• Visa Waiver-mostly Western Europe-90
days limit, no extensions, no change of
status
VISA SAMPLE
PASSPORT
I-94 SAMPLE
Who Are the Players?
• Department of Homeland Security
-Citizenship and Immigration Services
-Customs and Border Protection
-Immigration and Customs Enforcement
• U.S. State Department
• U.S. Department of Labor
• U.S. Department of Justice
Minnesota Immigration
• U.S. Citizenship and Immigration Services
2901 Metro Drive, Suite 100
Bloomington, MN 55425
• Executive Office for Immigration Review
7850 Metro Parkway
Bloomington, MN 55425
How to Get a Green Card
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Family
Employment
Cancellation of Removal
Diversity Visa Lottery
Special Categories
-VAWA, JUVENILES
-NACARA, U Visa
--Religious Workers
-Cuban Adjustment Act
-LIFE Late Legalization
Why Isn’t the Green Card Green?
• What we know as a green card came in a variety of
different colors at different times in its history.
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The green card is formally known as the Alien
Registration Receipt Card, Form I-151 or I-551.
• As World War II ended and large-scale immigration to
the U.S. resumed, alien registration stopped taking
place at post offices and became part of regular
immigration procedure. Aliens registered upon entry at
the port, and the INS issued different documents to
different aliens to serve as their Alien Registration
Receipt Cards.
Why Isn’t the Green Card Green?
• Following passage of the Internal Security Act of 1950,
new regulations issued by the INS rendered the Form I151 even more valuable. Effective April 17, 1951,
regulations allowed those holding AR-3 cards to have
them replaced with a new Form I-151 (the green card).
• By 1951, the green Form I-151 represented security to its
holder. It indicated the right to permanently live and work
in the U.S. As a result of the card's cumbersome official
title, people referred to it by its color. The term green card
designated not only the document itself, but also the
official status.
• During the mid-1970s, the INS studied methods to
produce a counterfeit-proof Alien Registration Receipt
Cards for LPRs. . Despite changes in form number,
design, and color, the document that represents an alien's
right to live and work in the U.S. permanently will probably
always be known as a green card.
GREEN CARD SAMPLE
Fraudulent Green Card
Fraudulent Green Card
IMMEDIATE RELATIVES
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Spouse of U.S. Citizens
Unmarried children under 21 years of age
Parents where U.S. Citizen child is 21
(Visas are always available)
Family Preference Categories
• 1st- Unmarried children over 21 of USC
• 2nd- (a) Spouses and Unmarried children
under 21 of Permanent Residents
(b) Unmarried Children over 21of LPR
• 3rd- Married children of USC
• 4th-Brothers & Sisters of USC
(All have waiting times to get visas)
AFFIDAVIT OF SUPPORT
• Form I-864 required in all family based
cases and certain employment based cases
• Sponsor has to show financial eligibility per
HHS poverty guidelines
• Generally 125% of poverty guidelines
• Must provide tax returns and proof of
employment or assets
• Can have a joint sponsor
AFFIDAVIT OF SUPPORT
• Sponsor agrees to support alien at 125% of
poverty guidelines
• Makes individuals liable to the U.S.
government, state or local agency or private
entity that renders means tested benefits to the
supported alien until the time that the alien
becomes a U.S. citizen, permanently leaves
the U.S., passes away, or works in this country
for 10 years (40 quarters)
ADOPTED CHILDREN Non-Hague
• ADOPTION BEFORE CHILD REACHES
AGE 16
• 2 YEARS OF LEGAL & PHYSICAL
CUSTODY WITH ADOPTIVE PARENT
• RESIDES WITH ADOPTIVE PARENT(S)
• 2nd SIBLING CAN BE UP TO AGE 18
ORPHANS Non-Hague
• ADOPTED BEFORE AGE 16
• NO 2 YEAR LEGAL & PHYSICAL CUSTODY
REQUIREMENT
• HOME STUDY REQUIRED
• CAN BE ADOPTED ABROAD OR IN U.S.
• Death or disappearance, abandonment
and/or desertion, separation or loss of both
parents
Convention Adoption
• Requirements:
• Petitioner must be a U.S. citizen (living in U.S. or
intending to live in U.S.)
• Petitioner adopting as single parent must be over
age 25
• Child is a Convention Habitual Resident
• Child must be under the age of 16 at the time the
petition is filed
Convention Adoption
• Eligibility of child:
• Broader than orphan definition
• 2 biological parents may release the child for
adoption if incapable of providing care
• Father (not only a mother) may be considered a sole
parent
• No sibling exception for under 18 years
• http://adoption.state.gov/hague_convention/countries
.php
Convention Adoption
• Particularities
• Strict filing order of the case: I-800A, I-800 and
then adoption
• Prohibited contact between adoptive parents and
birth parents (or orphanage)
• No requirement that both adoptive parents travel
• Accredited/Approved adoption service provider.
Special Immigrant Juveniles
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Eligibility Requirements:
Be under 21 and unmarried
Be declared dependent upon juvenile court
Reunification with one (or both) parent(s) is not
viable due to abuse, neglect or abandonment, or
similar basis under state law
• Continue to be dependent upon juvenile court
• Determination that it is in child’s best interest not to
be returned to country of nationality
FRAUDULENT MARRIAGE
• PERMANENT BAR TO ANY IMMIGRATION
BENEFIT INA 204(C)
• Did bride and groom intend to establish life
together? Lutwak v. U.S., 344 U.S. 604 (1954)
• Conduct of parties before and after marriage is
relevant. Parties must present evidence which
may include insurance policies, property, leases,
income tax, bank accounts. Matter of Soriano, 19
I&N Dec. 764 (BIA 1988)
• ATTEMPT OR CONSPIRACY CREATES BAR
MARRIAGE FRAUD CRIME
• Marriage fraud. INA §275(c); 8 U.S.C. §1325(c).
5 years + $250,000 fine. U.S. v. Vickerage, 921
F.2d 143 (8th Cir. 1990) [Upheld conviction
where parties knew each other, had sex before
and after marriage, but marriage was one of
convenience].
VIABILITY OF MARRIAGE
• If no legal separation or dissolution at
time of petition, CIS cannot deny petition
because parties not living together or
solely because marriage is not viable.
Matter of McKee, 17 I&N Dec. 332 (BIA
1980)
• Non–legal separation only relevant for
determining whether marriage was
fraudulent at inception. Matter of McKee,
Supra
Marriage Law
• Law of place of marriage governs
• CIS follows State Department Foreign Affairs
Manual Appendix C
• http://travel.state.gov/visa/reciprocity/index.htm
• Customary marriage generally not valid
• Religious marriage valid if recognized by law of
place of marriage
• Must not be contrary to public policy
VAWA
• VIOLENCE AGAINST WOMEN’S ACT
• WWW.ASISTAONLINE.ORG
• MAJOR AMENDMENTS IN 2005
P.L. 109-162 VAWA & DOJ Reauthorization Act
• MALES ALSO QUALIFY
• CAN SELF-PETITION
VAWA
• Spouse or child who is subject to extreme
cruelty or battered
• Resided with USC/LPR spouse/parent
• Marriage in good faith
• Good moral character
• If not in proceedings, eligible for deferred
action and work authorization, including
abused spouses and children of LPRs
VAWA CANCELLATION
• In removal proceedings, battered spouses,
children or parent of battered child (who is
the child of the LPR or USC engaged in the
battery) may apply for relief if she is:
subject to battery or extreme cruelty in the
U.S., physically present in U.S. for 3 years,
a person of good moral character, and her
deportation would result in extreme
hardship to her, her child or her parents.
U VISAS
• Suffered substantial physical or mental
abuse as a result of having been a victim of
a qualifying criminal activity
• Must have information concerning that
criminal activity
• Helpful in the investigation or prosecution of
the crime
• The criminal activity violated U.S. laws
U VISA Qualifying Crimes
•Abduction
•Abusive Sexual Contact
•Blackmail
•Domestic Violence
•Extortion
•False Imprisonment
•Genital Female Mutilation
•Felonious Assault
•Hostage
•Incest
•Involuntary Servitude
•Kidnapping Manslaughter
•Murder
•Obstruction of Justice
•Peonage
•Perjury
•Prostitution
•Rape
•Sexual Assault
•Sexual Exploitation
•Slave Trader
•Torture
•Trafficking
•Witness Tampering
•Unlawful Criminal
Restraint
•Other Related Crimes
TRIGGERING EVENTS
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Marriage, Separation, Divorce
Changing Address: Sponsor or Immigrant
Travelling outside the U.S.
Children Turning 21
Committing Crimes or Being a Crime Victim
Notice to Appear for Immigration Court
Death of a Petitioner or Spouse
Expiration of Status or Employment Card
CONTACT INFORMATION
Steven C. Thal
10580 Wayzata Boulevard,
Ste. 100
Minnetonka, MN 55305 USA
PHONE: 952-541-1090
FAX: 952-541-1186
On the Web: http://www.thalvisa.com
email: [email protected]
Thank You.
Employment-Based Immigration 101
Sandra Feist
Grell & Feist LLC
[email protected]
(612) 354-2682
Overview
• Nonimmigrant Options
• Permanent Residence Options
• Miscellaneous
Nonimmigrant Options
• H-1B
– Requirements
– LCA Obligations
– The H-1B Cap
• L-1A/L-1B
– L-1A Multinational Managers/Executives
– L-1B Specialized Knowledge
Nonimmigrant Options (cont’d)
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TN NAFTA Option for Mexican and Canadian citizens
E-2 Investors
F-1 Students
J-1 Exchange Visitors
– 212(e)
• O-1 Individuals of Extraordinary Ability
• R-1 Religious Workers
EB Permanent Residence Categories
• First Preference Categories
– Aliens of Extraordinary Ability
– Outstanding Professors or Researchers
– Multinational Managers/Executives
• Second Preference Categories
– PERM Labor Certification-based I-140 Petitions
– National Interest Waivers
• New York State Dept. of Transportation
• Physician NIW Option
EB Permanent Residence Categories
• Third Preference
• Miscellaneous
– Investors
– Religious Workers
Miscellaneous
• The Visa Bulletin
• AC21
– Adjustment Portability
– H Extensions beyond 6 years
Immigration 101: Asylum & Removal
Sarah Brenes
The Advocates for Human Rights
[email protected]
612.746.4684
Overview of U.S.
Immigration System
Federal
Government –
Executive
Branch
Department of
Homeland
Security
U.S.
Citizenship
and
Immigration
Services
(USCIS)
Immigration
and Customs
Enforcement
(ICE)
Department of
Justice
Customs and
Border
Protection
(CBP)
Executive
Office of
Immigration
Review
(EOIR)
Persons Seeking Protection
Refugee: Person who, owing to a well-founded
fear of persecution on account of race, religion,
nationality, social group, or political opinion, is
unwilling or unable to avail himself of the
protection of his government
Asylum: Protection given to persons determined
to be “refugees” while inside the US
Trafficking, Crime Victims, VAWA, SIJS
Venues for Seeking Protection
Refugee: UNHCR
Asylum:
At the border with CBP
Affirmatively with USCIS after entering the U.S.
Defensively with the Immigration Judge
T-Visa: USCIS
U-Visa: USCIS
VAWA: USCIS or Immigration Judge
SIJS: USCIS after obtaining state court findings
Burden of Proof: Asylum v. Withholding
Asylum
– Applicant must establish
that persecution is
“reasonable possibility”
– As little as a 1/10 chance
could constitute wellfounded fear
– Discretionary remedy
– Must file within 1 year of
arrival in U.S.
Withholding
– Applicant must prove “clear
probability” of persecution
– Greater than 50/50 chance
– Mandatory: need not be
eligible as matter of
discretion
– May file after one-year in
U.S.
– Only granted by IJ
– Does not lead to lawful
permanent residence
– No family unification,
– No right to travel
Relief from Refoulement
Withholding of Removal
– Barred if convicted of a
“particular serious crime.”
– Must be on account of one
of the five protected
grounds
– “more likely than not” would
be persecuted…
– …by government or agent
the government cannot
control
Convention Against
Torture
– No bars: persons facing
torture may not be returned
to place of feared torture
– No “on account of” element
– “More likely than not” would
be tortured…
– …by government or at
acquiescence of
government
Affirmative
Asylum Process
Defensive
Asylum Process
Appeal to
BIA?
Paths to Removal Proceedings
• Apprehension at the border (CBP)
– Expedited Removal
– Referral for Proceedings
• Credible fear  Removal Proceedings
• Reasonable fear  Withholding-Only Proceedings
• Referral after denial of an affirmative application (USCIS)
• Apprehension in the U.S. (ICE)
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Following an arrest
ICE Raid
ICE Hold while in criminal custody
Administrative Warrant
The Removal Process
• DHS issues Notice to Appear (“NTA”), charging person
with violation of INA.
• Immigration Court has jurisdiction once the NTA is filed
with the Court.
• Alien may be detained during pendency of proceedings.
Depending on charge of removability, detention may be
mandatory.
Phases of Removal Proceeding
• Phase I: Removability
– Factual allegations and
– Legal Charges
• Arriving aliens/Applicant for admission: INA 212
• Overstays/Status Violator/LPRs: INA 237
• Phase II: Relief
– Status acquired
– Statutory requirements
– Discretion
Immigration Court Hearings
• Master Calendar: Initial hearing when the
person appears to enter pleadings on the Notice
to Appear and can request some form of relief.
• Individual Calendar: Hearing to determine
whether the person is eligible for the relief
sought.
Relief may be based on…
• Relationships: Adjustment of Status
• Fear: Asylum/Withholding of Removal/Convention
Against Torture
• Time & Hardship: Cancellation of Removal for LPRs,
non-LPRS, and victims of DV
• Prosecutorial Discretion: Administrative Closure or
Termination of Proceedings
• Freedom: Voluntary Departure
Appeal Process
• Board of Immigration Appeals
– Hears all appeals of Immigration Judge decisions.
– May summarily dismiss or affirm IJ decision without
issuing a written opinion.
• Federal Circuit Court of Appeals
– Hears certain appeals of Board of Immigration
Appeals decisions. (Limited by RealID Act of 2005).
– Individual files with the Circuit having jurisdiction over
the location of their original Immigration Court
hearing.