IMMIGRATION 101Rebecca Kitson, Esq.

Amber L. Weeks, Esq.

Immigration Status

▪ United States Citizens: (USCs): born in U.S., naturalized, or acquired/derived

▪ Lawful Permanent Residents: (LPRs / “green card holders”): permission to live and work in U.S.

▪ Non-immigrants: temporary permission to work, visit, study, etc.

▪ Temporary Legal Status: permission to stay, sometimes work in U.S., includes applicants for LPR

▪ Undocumented Persons: no status, either overstayed a legal entry or entered illegally

THE LANDSCAPE OF IMMIGRATION

A National View

The Foreign Born: What’s their status and where do they come from?

Overall Undocumented Population

There were a record 44.4 million immigrants living in the U.S. in 2017, making up 13.6% of the nation’s population.

In 2017, an estimated 10.5 million unauthorized immigrants lived in the United States, down from a peak of 12.2 million in 2007.

The number one group in decline is Mexicans (from 6.9 in 2007 to 5.4 million in 2016)

The Undocumented: Where do they come from?

Length of time in the US: Undocumented Population

THE LANDSCAPE OF IMMIGRATIONA Statewide View: New MexicoSource of much info: https://www.americanimmigrationcouncil.org/research/immigrants-in-new-mexico

Immigrants in New Mexico

▪Foreign born : 1 in 10 ▪ 9.4% are foreign born

▪As of 2015, 36.3% had naturalized to USC

▪ Total just under 200k

▪Undocumented population estimated at 4% in 2014

Immigrants in New Mexico: The Undocumented

▪ Nearly 55,000 U.S. born citizens in New Mexico live with at least one family member who is undocumented (between 2010-2014).

▪ 1 in 11 children in the state was a U.S. citizen living with at least one undocumented family member (44,653 children in total).

▪ Approximately 7,400 Deferred Action for Childhood Arrivals (DACA) recipients live in New Mexico (2016).

IMMIGRANTS AND CRIME

A look at the numbers

2017 CATO Study on Incarceration Rates

Crime rates higher in second generation

VISAS AND GREEN CARDS

Nonimmigrant and Immigrant Options

Who are the agency players?

▪ Department of Homeland Security (former INS)▪ ICE: Immigration and Customs Enforcement▪ USCIS: United States Citizenship and Immigration Service▪ CBP: Customs and Border Patrol

▪ Department of State ▪ Consulates / visa issuance abroad

▪ Department of Justice ▪ EOIR: Executive Office for Immigration Review ▪ BIA: Board of Immigration Appeals

▪ Department of Labor ▪ BALCA : Board of Alien Labor Certification Appeals

Intro to Non-Immigrant Visas

▪ A nonimmigrant is a noncitizen who seeks entry to the US for a specific purpose to be accomplished during a temporary stay. INA §101(a)(15).

▪ The purpose of that stay defines which visa class the individual should utilize – about 22 different types.

▪ Most derivatives cannot work, but there are exceptions.

Alphabet Soup: Some Common Non-Immigrant Visas

▪ Employment (H, I, L, O, P, R)

▪ H1B Visa: Garden variety, typically need a BA and a job offer

▪ Student Visas (F, M, J)

▪ F Visa: Regular academic or language study

▪ M Visa: Non-academic or vocational studies

▪ J Visa: Exchange programs, research or teaching fellowships, medical studies, etc.

▪ Treaty Visas (TN, E)

▪ Family Visas (K, V)

▪ K1 / K3 : Fiancé visas

▪ Law Enforcement Visas (S, T, U)

H1-B visas

▪ The US H-1B visa is a non-immigrant visa that allows US companies to employ graduate level workers in specialty occupations that require theoretical or technical expertise in specialized fields such as in IT, finance, accounting, architecture, engineering, mathematics, science, medicine, etc.

▪ Quota: 65,000 per annum (the H-1B cap); 20,000 for Masters Degree recipients

▪ FY 2016: 233,000 applicants

▪ FY 2017: 236,000 applicants

▪ FY 2018: 199,000 applicants

▪ FY 2019: 190,098 applicants

FIVE PRIMARY WAYS TO A GREEN CARD

Immigrant Visas / Adjustment of Status:

1. Family Based

2. Employment Based

3. Asylum

4. Diversity (“The Lottery”)

5. Various Humanitarian Visas

Various Green Card Categories

Family Based Immigration

▪ “Immediate Relatives” are relationships exempt from quota-based waiting lists

▪ If you are: ▪ The spouse of a U.S. citizen

▪ An unmarried child under 21 years old of a U.S. citizen

▪ Parent of a U.S. citizen child over 21 years of age

INA §201(b)(2)(a)(i)

Family Based Immigration: Preference Categories

▪ F1: Over 21 years old, unmarried child of U.S. Citizen

▪ F2A: Spouse or minor (under 21, unmarried) child of a Legal Permanent Resident

▪ F2B: Over 21 years old, unmarried child of Legal Permanent Resident

▪ F3: Over 21 years old, married child of U.S. Citizen

▪ F4: Brother or sister of a U.S. Citizen

See 8 CFR §§204.1, 204.2

Applicants on the Wait List in Family-Sponsored Categories

Total Family-Sponsored

Applicants on the Wait List as of Nov. 1, 2018 =

3,671,442

Department of State Annual Report, available at:

https://travel.state.gov/content/dam/visas/Statistics/Immigr

ant-Statistics/WaitingList/Waiting

ListItem_2018.pdf

Applicants on the Wait List in Family-Sponsored Categories by Country

In addition to quotas for each visa category, only 7% of visas may be issued to any single country.

Department of State Annual Report, available at:

https://travel.state.gov/content/dam/visas/Statistics/Immigr

ant-Statistics/WaitingList/Waiting

ListItem_2018.pdf

Visa Bulletin July 2019: Family Based Immigration

Employment Based Immigration: General Requirements

▪ Most important : A strong showing that the foreign worker is one of the best in the field or that there are no US workers who are able, willing, available, and qualified to fill the position.

▪ Preference categories are by skill / level of achievement

▪ Very little forgiveness for immigration violations

▪ Generally require planning and timing considerations

Employment Based Immigration

▪ EB-1: Persons of extraordinary ability, outstanding professors and researchers, and multinational executives and managers.

▪ EB-2: Members of professions holding advanced degrees or individuals of exceptional ability in the arts, sciences, or business

▪ EB-3: Skilled and professional workers

▪ EB-4: Religious Workers

▪ EB-5: Special Investors

Visa Bulletin July 2019: Employment Based Immigration

Applicants on the Wait List in Employment-Based Categories

Total Employment-Based Applicants on Wait List as of

Nov. 1, 2018 =

120,531

Department of State Annual Report, available at:

https://travel.state.gov/content/dam/visas/Statistics/Immigr

ant-Statistics/WaitingList/Waiting

ListItem_2018.pdf

Applicants on the Wait List in Employment-Based Categories by Country

In addition to quotas for each visa category, only 7% of visas may be issued to any single country.

Department of State Annual Report, available at:

https://travel.state.gov/content/dam/visas/Statistics/Immigr

ant-Statistics/WaitingList/Waiting

ListItem_2018.pdf

Asylum and related relief: Applicable Law

▪ Asylum citations:

▪ Definition INA § 101(a)(42)

▪ INA § 241(b)(3) – withholding of removal

▪ INA § 208 – asylum

▪ 8 CFR §§ 208; 1208 – CAT and asylum

Asylum

Refugee / Asylee :

any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion

INA §101(a)(42) ; 8 USC §1101(a)(42)

Any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided,

and

who is unable or unwilling to return to,

and

is unable or unwilling to avail himself or herself of the protection of, that country

because of

persecution or a well-founded fear of persecution

on account of

race, religion, nationality, membership in a particular social group, or political opinion

What asylum is NOT

▪ “The limited nature of the protection offered by refugee law is highlighted by the fact that it does not cover those fleeing from natural or economic disaster, civil strife, or war….”Matter of M-E-V-G-, 26 I&N Dec. 227, 235 (BIA 2014).

▪ “Mere lawlessness and violence between diverse populations, of the sort which abounds in numerous countries and inflicts misery upon millions of innocent people daily around the world, generally is not sufficient to permit the Attorney General to grant asylum…” Singh v. INS, 134 F.3d 962, 967 (3d Cir. 1998).

Humanitarian Relief

▪ Relief resulting in LPR status:

▪ Special Immigrant Juveniles (SIJS)

▪ Abused, abandoned or neglected children

▪ Self-petitioning under the Violence Against Women Act (VAWA)

▪ Can be for children, parents or spouses of abusers

▪ Defenses to Removal in Proceedings

▪ Temporary Relief

▪ Temporary Protected Status (TPS)

▪ U and T visas : assisting law enforcement

▪ U visas for victims of crime

▪ T visas for victims of human trafficking

Deferred Action for Childhood Arrivals (DACA)

▪ You were under the age of 31 as of June 15, 2012;

▪ You entered the United States prior to your 16th birthday;

▪ You have resided in the United States since June 15, 2007 and currently are present in the U.S.;

▪ You were in the United States on June 15, 2012 and must be physically in the U.S. at the time of filing for your request for deferred action;

▪ You entered the United States without border inspection before June 15, 2012, or your immigration status expired prior to June 15, 2012;

▪ You must be currently in school, have graduated, or obtained an equivalent certificate of completion from high school, successfully obtained a general education development (GED) certificate, or must have been honorably discharged from the Armed Forces of the United States; and

▪ You must not have been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and must not pose a threat to national security or public safety.

DACA Update

▪About 700,000 currently hold DACA

▪What types of applications can be renewed

▪An update on the current litigation

Starting Points: Entry

▪ The INA is bifurcated by definition of “entry”: INA §101(a)(13)

▪ The terms "admission" and "admitted" mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.

Substantial Areas of Trouble: Inadmissibility INA § 212

Criminal Grounds

▪ Crimes involving Moral Turpitude (CIMT’s)

▪ Controlled Substances

• Reason to believe controlled substance trafficker or is a family member who receives benefit of trafficking

▪ Prostitution and commercialized vice

▪ Multiple convictions: aggregate sentence of 5 years

Non-Criminal Grounds

▪ Unlawful entry/presence

▪ Admission to ground of inadmissibility

▪ Fraud – visa, false claims to USC, etc.

▪ Smuggling and Trafficking

▪ Current drug addiction and/or abuse

▪ Previously removed – re-entry

▪ Security / Terrorism

Substantial Areas of Trouble: Deportability INA § 237

Criminal Grounds

▪ Aggravated felonies: the worst of the worst

▪ CIMTs: 2 at any time after admission or 1 within 5 years of admission

▪ Controlled Substances

▪ Domestic Violence, Stalking, Child Abuse (may include violation of protection order)

▪ Firearms

Non-Criminal Grounds

▪ Visa overstay

▪ Inadmissible at time of entry

▪ Controlled substance abuser or addict

▪ Fraud, including false claims to USC, marriage, etc.

▪ Smuggling

▪ Security, espionage, terrorism

IMMIGRATION ENFORCEMENT

Immigration Enforcement

▪ Border Enforcement (CBP) ▪ Includes both immigration enforcement and criminal prosecutions

▪ Interior Enforcement (ICE) ▪ Includes processing both the documented and undocumented for removal

▪Worksite Enforcement (ICE)

Enforcement Authority: Detention

▪ Detention: Authority to detain pursuant to authority to arrest.

▪ Civil Detention: The stated purpose or goal of immigrant detention has been to ensure that individuals appear for their removal proceedings and do not abscond after a final order of removal has been issued.

▪ Most immigrant detention facilities are privately run by the prison industry.

Immigration Detention Issues

▪ Detention and Bond

▪ Noncitizens may generally qualify for immigration bond if not a flight risk, a danger to the community, or subject to mandatory detention.

▪ Mandatory Detention applies to any foreign national who is:

▪ Inadmissible for criminal grounds, INA § 212(a)(2).

▪ Deportable for criminal grounds, INA § 237(a)(2).

▪ NOT eligible for immigration bond and will remain in detention while awaiting removal or defending their case.

Worksite Enforcement

▪Authority under INA § 274A.

▪Created by Immigration Reform and Control Act of 1986 (IRCA), also included anti-discrimination legislation.

▪ Prohibits the knowing hiring or continuing to employ an unauthorized worker. Knowledge may be actual or constructive - knowledge that may fairly be inferred through notice of certain facts and circumstances that would lead a person, thorough the exercise of reasonable care, to know about a certain condition.

Worksite Enforcement: Procedure

▪ Form I-9.

▪ Required to re-verify when there is a change or an expiration of status.

▪ These can be audited. Normally a Notice of Inspection arrives with Special Agents from ICE.

The Immigration Court: Removal and Defense

▪ Proceedings are civil versus criminal

▪ Our immigration court sits in El Paso, Texas

▪ IJs are appointed through DOJ

▪ DHS-ICE counsel represents the U.S. government

▪ No rules of evidence, no right to paid counsel

▪ Subject to limited judicial review

▪ Defenses typically involve a way to stay in the U.S.

▪ Removal (previously termed deportation) can occur in absentia

Current Immigration Court Backlog

Current Backlog for Entire U.S. in 2019 = 908,552

• California = 161,281

• Texas = 132,231 (5,508 in El Paso)

• New York = 117,862

• Florida = 74,548

• New Jersey = 49,1117

http://trac.syr.edu/phptools/immigration/court_backlog/

Children in Removal

▪No age limit as to removal proceedings or detention

US CITIZENSHIP

How to become a USC?

▪3 ways to become a USC →▪Naturalization – a formal process

▪Derivative Citizenship – through the naturalization of parents

▪Acquired Citizenship – through birth in the US / territories or abroad to one or both USC parents

See generally INA §§301, 309, 318, 320, 322.

Naturalization Requirements

▪ STATUS: Lawfully admitted for LPR status

▪ AGE: 18 years old

▪ PHYSICAL PRESENCE & RESIDENCY

▪ GOOD MORAL CHARACTER

▪ LITERACY AND KNOWLEDGE OF HISTORY AND GOVERNMENT:

▪ Disability Exception

▪ English Language Exemption: 15/55, 20/50, 20/65

▪ Attachment to the Principles of the Constitution and favorable disposition to the good order and happiness of the US

Naturalization Requirements

▪GOOD MORAL CHARACTER : ▪ No definition, but see INA 101(f).

▪ 3/5 year period required, may look beyond in the agency’s discretion.

▪ Lack of GMC may include not paying child support, commission of crimes, alcoholism, disregard for the laws, wellbeing of the community.

▪ Selective service registration is required.

Derivative & Acquired Citizenship

Derived through parent’s natz▪ Usually after a child immigrates as an LPR

▪ While child is under 18 years old, one or both parents naturalize (custodial parent)

▪ Child Citizenship Act 2/27/01 broadened the qualifications

Acquired at Birth ▪ Jus soli or jus sanguinis – by soil or blood

▪ By blood – born abroad to one or more USC parents, often involves requirements that the parents have lived in the US for a certain period of time in order to pass on US citizenship.

▪ Requirements have changed through time

Thank You!!

▪Rebecca Kitson, Esq.

rk@rkitsonlaw.com

www.rkitsonlaw.com

▪Amber L. Weeks, Esq.

amber@noblelawfirm.com

www.noblelawfirm.com