Immigration Lawmsba.mainebar.org/.../lyr/chapter_10_Immigration.pdf · Refugee and Human Rights Clinic, are working at the Artesia Center, an immigration detention center in Artesia,

Immigration Law

Materials provided by:Katie N. Minervino, Esq.Pierce Atwood, Portland

---------Susan A. Roche, Esq.

Immigrant Legal Advocacy Project, Portland---------

Anna R. Welch, Esq.University of Maine School of Law, Portland

Chapter 10 - MSBA Page #10-1


Hot Topics in U.S. Immigration Law and Policy Katie Minervino, Esq., Associate, Pierce Atwood LLP

Sue Roche, Esq., Executive Director of the Immigrant Legal Advocacy Project (AM Session) Anna Welch, Esq., Associate Clinical Professor, University of Maine School of Law (PM Session)

I. Fundamentals of U.S. Immigration law

a. Governing laws b. Federal Agency Structure/Department of Homeland Security (formerly “INS”)

Brief overview of employment-based, family-based and humanitarian immigrant and non-immigrant categories

c. Intersection of Immigration with Other Areas of Law

II. Comprehensive Immigration Reform (CIR) a. Historical Overview

i. Stakeholders driving CIR efforts (from all sides of political spectrum) ii. Efforts (failed or otherwise) within the U.S. House and Senate iii. Where are we now?

b. President Obama’s response to failed CIR in Congress c. State and local initiatives

III. Unaccompanied Immigrant Children in the News

a. Overview b. Push/Pull factors leading children to enter the U.S. c. Response by U.S. government d. Impact on Maine, including a discussion of Maine’s demographics e. Options for unaccompanied children to remain in the U.S. f. Opportunities for Maine attorney involvement

IV. Updates on Key Issues Affecting Employers

a. FY2015 H-1B limit immediately exhausted with lottery b. EB-5 category for Chinese investors seeking green cards reached limit for first

time in the most recent fiscal year c. Employment verification trends and developments


Further Suggested Resources: On comprehensive immigration reform: Tackling the Toughest Questions on Immigration Reform: Short Answers to the Most Common Question, Immigration Policy Center, American Immigration Council, available http://www.immigrationpolicy.org/sites/default/files/docs/ipc_shortanswers_0726.pdf On the influx of unaccompanied minors at the border: Fleeing Gangs, Children Head to U.S. Border by Frances Robles, New York Times, July 10, 2014, on page A1, available at: http://nyti.ms/1n9aQvp See also the blog http://amberandlaurainartesia.wordpress.com/ by two University of Maine School of Law students, Amber Attalla and Laura Shaw, who in coordination with Maine Law’s Refugee and Human Rights Clinic, are working at the Artesia Center, an immigration detention center in Artesia, New Mexico for one week to provide legal assistance to unaccompanied immigrant children and women. On developments in the EB-5 investor “green card” process: A Door Into U.S. for Chinese Investors Closes — for Now, by Amy Q, August 27, 2014 (blog post), available at http://nyti.ms/1tCYqTU On employment verification in the hiring process: M-274 Handbook for Employers, Guidance for Completing Form I-9 (Employment Eligibility Verification Form), available at http://www.uscis.gov/sites/default/files/files/form/m-274.pdf


http://www.immigrationpolicy.org/sites/default/files/docs/ipc_shortanswers_0726.pdf

http://nyti.ms/1n9aQvp

http://amberandlaurainartesia.wordpress.com/

http://nyti.ms/1tCYqTU

http://www.uscis.gov/sites/default/files/files/form/m-274.pdf

DATA ON FOREIGN BORN MAINERS

Facts from Maine Census Data for 2000 and 2010

o Maine’s Foreign Born (FB) Population increased by 20.82% in ten years, from 36,391 in 2000 to 43,968 in 2010. (Please note that the Census has historically undercounted marginalized populations, including immigrants, so we believe these numbers are under-representative.)

o One Third of Maine’s FB Population has been in the United States for less than 10

years.

o Maine’s FB Populations from Africa, Asia and Latin America went up 98% in 10 years, from 10,213 in 2000 to 20,242 in 2010.

o African FB population went from 1,067 to 6,719 (529% increase) o Asian FB population went from 6,949 to 9,956 (43% increase) o Latin American FB population went from 2,197 to 3,567 (62% increase)

Top 10 Countries of Origin for ILAP Clients in 2000 and 2013

Please note that these statistics are for ILAP clients and are not representative of all immigrants in Maine. The following are the percentage served from the top ten countries of origin. 2000 (826 clients served) 2013 (3,006 clients served) Mexico (9%) Somalia (14%) Honduras (6%) Burundi (13%) USA (6%) Democratic Republic of Congo (9%) Canada (5%) Iraq (9%) El Salvador (4%) Rwanda (8%) Russia (4%) Sudan (6%) Somalia (3%) El Salvador (3%) Afghanistan (less than 3%) Angola (3%) Albania (less than 3%) Djibouti (3%) Argentina (less than 3%) Mexico (2%)


IMMIGRATION BASICS I. GOVERNMENT AGENCIES

A. Department of Homeland Security (DHS): This agency was created by the Homeland Security Act of 2002 and is comprised of many federal agencies including the three agencies that were formerly Immigration and Naturalization Services (INS):

• U.S. Citizenship & Immigration Services (USCIS): This agency adjudicates

immigration petitions and applications including green cards, citizenship, and work permits.

• Immigration and Customs Enforcement (ICE): This agency handles

investigations, detention and removal (deportation) of noncitizens. ICE also has the authority to grant a noncitizen “deferred action” to delay their deportation.

• Customs and Border Protection (CBP): This agency handles customs and

border issues.

B. Department of State (DOS): This agency issues nonimmigrant and immigrant visas to noncitizens that live abroad and are coming to the U.S.

II. SOURCE OF LAW

A. Immigration and Naturalization Act (INA): 8 U.S.C. §§ 1101, et seq.

B. Code of Federal Regulations: 8 C.F.R. §§ 100-507, 1001-1299 22 C.F.R. §§ 40.1, et seq.

III. IMMIGRATION STATUS

A. Citizens: There are several ways an individual may become a U.S. citizen:

• Birth: Persons born in the U.S. are citizens. • Acquisition: Citizenship may be acquired at the time of birth through one or both

parents. This complicated determination depends upon many factors including the law in effect at the time of birth and how much time the parent(s) spent living in the U.S.


• Derivation: Citizenship can be derived at the time a parent naturalizes. This depends upon several factors including the age of the child at the time the parent naturalizes.

• Naturalization: An individual can naturalize after meeting certain requirements,

including a period (usually five years) of permanent resident status.

B. Noncitizens: Noncitizens are foreign born individuals who are not citizens. Under the INA, there are two categories of noncitizens: non-immigrants and immigrants.

• Non-Immigrants: Those individuals that are in the U.S. temporarily. These visas

have letters from A to V. Some common types of non-immigrants include: • B-2 Visitors • F-1 Students • H-1B Professional workers • H-2a Short term agricultural workers • H-2b Short term non-agricultural workers • J-1 Exchange visitors

• Immigrants: Those individuals that are in the U.S. with the intent to stay here

permanently. The INA defines an immigrant as “every alien except an alien who is within one of the following classes of nonimmigrant aliens.” INA § 101(a)(15); 8 U.S.C. §1101(a)(15).

• Permanent Residents (“green card” holders): The paths to permanent

residency are very limited. Most people become permanent residents through family or employment. Other ways include: refugees and asylees, the diversity lottery, registry for individuals in the U.S. since 1972, and some country specific laws for individuals meeting specific requirements.

• Refugees and Asylees: Those individuals who fled from their home countries

and have a well-founded fear of being persecuted by their governments because of race, religion, nationality, political opinion or social group. Refugees apply for refugee status abroad and are resettled in the U.S. The U.S. signed a UN treaty agreeing that it will take a certain number of refugees each year. Asylees come to the U.S. some other way, typically using a nonimmigrant visa, and then apply for asylum status from within the U.S. Both refugees and asylees may apply for permanent resident status one year after receiving asylee/refugee status.

• Other:

• Those in the process of applying for status: Those who have applied for

an immigration status and are waiting for a decision. This may be an application filed affirmatively with USCIS or in removal proceedings in front of an immigration judge.


• Temporary Protected Status (TPS): Those from countries that DHS has designated for TPS status due to a civil war or natural disaster. To qualify, an individual must have been present in the U.S. at the time of designation and must meet other requirements. TPS is a temporary status that ends when DHS determines it is safe for people to return to their home country. TPS does not lead to permanent residency.

• Undocumented: Those who do not currently have immigration status. They

may have entered the U.S. without a visa or they may have fallen out of status since they arrived. Someone who is undocumented may actually qualify for legal status. Examples include: domestic violence victims, children who have been abused, neglected or abandoned, those who qualify for asylum or temporary protected status.







United States Department of State Bureau of Consular Affairs

VISA BULLETIN Number 74 Volume IX Washington, D.C.

IMMIGRANT NUMBERS FOR NOVEMBER 2014

A. STATUTORY NUMBERS This bulletin summarizes the availability of immigrant numbers during November. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; U.S. Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status. Allocations were made, to the extent possible, in chronological order of reported priority dates, for demand received by October 8th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. Only applicants who have a priority date earlier than the cut-off date may be allotted a number. If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin. If at any time an annual limit were reached, it would be necessary to immediately make the preference category “unavailable”, and no further requests for numbers would be honored. 2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320. 3. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.


-2- November 2014 4. Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows: FAMILY-SPONSORED PREFERENCES First: (F1) Unmarried Sons and Daughters of U.S. Citizens: 23,400 plus any numbers not required for fourth preference. Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers: A. (F2A) Spouses and Children of Permanent Residents: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit; B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents: 23% of the overall second preference limitation. Third: (F3) Married Sons and Daughters of U.S. Citizens: 23,400, plus any numbers not required by first and second preferences. Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens: 65,000, plus any numbers not required by first three preferences. On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.) All Charge- ability Areas CHINA- Except Those mainland Family- Listed born INDIA MEXICO PHILIPPINES Sponsored F1 08JUN07 08JUN07 08JUN07 08JUL94 01NOV04 F2A 01MAR13 01MAR13 01MAR13 22SEP12 01MAR13 F2B 01JAN08 01JAN08 01JAN08 08SEP94 01JAN04 F3 08DEC03 08DEC03 08DEC03 01NOV93 08JUN93 F4 08FEB02 08FEB02 08FEB02 15FEB97 01MAY91 *NOTE: For November, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 22SEP12. F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 22SEP12 and earlier than 01MAR13. (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)


-3- November 2014 5. Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows: EMPLOYMENT-BASED PREFERENCES First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences. Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference. Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "*Other Workers". Fourth: Certain Special Immigrants: 7.1% of the worldwide level. Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395. On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.) All Charge- ability Areas CHINA- Except Those mainland Listed born INDIA MEXICO PHILIPPINES Employment- Based 1st C C C C C 2nd C 08DEC09 15FEB05 C C 3rd 01JUN12 01JAN10 22NOV03 01JUN12 01JUN12 Other 01JUN12 22JUL05 22NOV03 01JUN12 01JUN12 Workers 4th C C C C C Certain C C C C C Religious Workers 5th C C C C C Targeted Employment Areas/ Regional Centers and Pilot Programs


-4- November 2014 *Employment Third Preference Other Workers Category: Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105 139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002. 6. The Department of State has a recorded message with visa availability information which can be heard at: (202) 485-7699. This recording is updated on or about the tenth of each month with information on cut-off dates for the following month. B. DIVERSITY IMMIGRANT (DV) CATEGORY FOR THE MONTH OF NOVEMBER Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years. The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This resulted in reduction of the DV-2015 annual limit to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year. For November, immigrant numbers in the DV category are available to qualified DV-2015 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number: All DV Chargeability Areas Except Those Region Listed Separately AFRICA 14,200 Except: Egypt 6,800 Ethiopia 7,800 ASIA 2,950 EUROPE 9,900 NORTH AMERICA 3 (BAHAMAS) OCEANIA 500 SOUTH AMERICA, 650 and the CARIBBEAN


-5- November 2014 Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2015 program ends as of September 30, 2015. DV visas may not be issued to DV-2015 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2015 principals are only entitled to derivative DV status until September 30, 2015. DV visa availability through the very end of FY-2015 cannot be taken for granted. Numbers could be exhausted prior to September 30. C. THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN DECEMBER For December, immigrant numbers in the DV category are available to qualified DV-2015 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number: All DV Chargeability Areas Except Those Region Listed Separately AFRICA 17,000 Except: Egypt 7,500 Ethiopia 9,000 ASIA 3,200 EUROPE 11,600 NORTH AMERICA 3 (BAHAMAS) OCEANIA 650 SOUTH AMERICA, 725 and the CARIBBEAN


-6- November 2014 D. INDIA EMPLOYMENT SECOND PREFERENCE Increased demand in the INDIA Employment-based Second preference category has required the retrogression of this cut-off date to hold number use within the fiscal year 2015 annual limit. E. VISA AVAILABILITY IN THE COMING MONTHS FAMILY-sponsored categories (potential monthly movement) Worldwide dates: F1: Two to three weeks F2A: Three to five weeks F2B: Six to eight weeks F3: One to three weeks F4: Two or four weeks EMPLOYMENT-based categories (potential monthly movement) Employment First: Current Employment Second: Worldwide: Current China: Three to five weeks India: No forward movement Employment Third:

Worldwide: Continued rapid forward movement for the next several months. After such rapid advance of the cut-off date applicant demand for number use, particularly for adjustment of status cases, is expected to increase significantly. Once such demand begins to materialize at a greater rate it will impact this cut-off date situation.

China: Rapid forward movement. Such movement is likely to result in increased demand which may require “corrective” action possibly as early as February. India: Little if any movement Mexico: Will remain at the worldwide date Philippines: Will remain at the worldwide date. Increased demand may require “corrective” action at some point later in the fiscal year. Employment Fourth: Current Employment Fifth: Current The above projections for the Family and Employment categories indicate what is likely to happen during each of the next three months based on current applicant demand patterns. Readers should never assume that recent trends in cut-off date movements are guaranteed for the future, or that "corrective" action will not be required at some point in an effort to maintain number use within the applicable annual limits. The determination of the actual monthly cut-off dates is subject to fluctuations in applicant demand and a number of other variables.


-7- November 2014 F. OBTAINING THE MONTHLY VISA BULLETIN

The Department of State's Bureau of Consular Affairs publishes the monthly Visa Bulletin on their website at www.travel.state.gov under the Visas section. Alternatively, visitors may access the Visa Bulletin directly by going to:

http://www.travel.state.gov/content/visas/english/law-and-policy/bulletin.html.

To be placed on the Department of State’s E-mail subscription list for the “Visa Bulletin”, please send an E-mail to the following E-mail address:

[email protected] and in the message body type: Subscribe Visa-Bulletin (example: Subscribe Visa-Bulletin)

To be removed from the Department of State’s E-mail subscription list for the “Visa Bulletin”, send an e-mail message to the following E-mail address:

[email protected] and in the message body type: Signoff Visa-Bulletin

The Department of State also has available a recorded message with visa cut-off dates which can be heard at: (202) 485-7699. The recording is normally updated on/about the 10th of each month with information on cut-off dates for the following month. Readers may submit questions regarding Visa Bulletin related items by E-mail at the following address: [email protected] (This address cannot be used to subscribe to the Visa Bulletin.) Department of State Publication 9514 CA/VO: October 9, 2014


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Documents

Immigration Lawmsba.mainebar.org/.../lyr/chapter_10_Immigration.pdf · Refugee and Human Rights Clinic, are working at the Artesia Center, an immigration detention center in Artesia,