Immigration Law

1. Policy
a. Congressional priority:
i. Family
ii. Employment
iii. Humanitarian
b. Morality
i. Open Border issues
2. Organization
a. Dept of Homeland Security
i. ICE
1. Prosecution
ii. USCIS
1. Applications
iii. CBP
1. Border and Customs
b. State Dept
i. Runs Consulates
1. Manage Out-of-state application process
c. Dept of Justice
i. Immigration Courts
d. Dept of Labor
i. Labor certifications,etc.
3. Constitutional Law
a. Sources of Immigration power
i. Explicit constitutional powers
1. Commerce Clause
2. Migration Clause
3. Naturalization Clause
4. War Clause
ii. Implicit in Sovereignty
1. Broad foreign affair powers (Chae Chan Ping)
2. Curtiss Wright
a. Residual powers
iii. Arizona v. US
b. Plenary Power in Congress
i. Congress can exclude anyone (Ping)
1. Privilege to be in country, not right
ii. Congress not subject to review (Eiku)
iii. Congress can deport any alien (Fong Yue Ting)
1. Not a punishment
iv. No Due Process required
1. Procedural
a. Exclusion based on confidential info (Knauf)
b. Prolonged exclusion/detention (Mezei)
i. statelessness irrelevant
2. Substantive not necessary either (Harisiades)
v. Limits:
1. Interpretation of Immigration statutes (Zadvyas)

2. Habeus Corpus (Demore)

3. Procedural Due Process
a. In some circumstances (Demore)
4. Separation of Powers (INS v Chadha)
5. Rights of USC
a. Marriage (Fiallo)
6. Prolonged detention?
4. Categories of Immigrants
a. Exempt from quotas (201(b))
i. Immediate Relatives of USC ( 201(b)(2)(A)(i)
1. Unmarried Children under 21 ( 101(b)(1): defining children)
2. Parents
3. Spouses
ii. LPRs returning from temporary stay abroad
1. Children born to them
iii. Refugees
1. Subject to other numerical restrictions
iv. Some former USCs
v. Special adjustments
vi. Beneficiaries of cancellations of removal
vii. Parolees (212(d)(5))
b. Subject to Quotas (203)
i. Family Based (203(a))
1. P1 (203(a)(1))
a. Unmarried Sons and Daughters of USC
2. P2 (203(a)(2))
a. Spouses and unmarried sons and daughters of LPR
i. 2A: spouses and children under 21
ii. 2B: sons and daughters over 21
3. P3 (203(a)(3))
a. Married sons and daughters of USC
4. P4 (203(a)(4))
a. Siblings of USC
5. Derivatives
a. Do not count against quota
i. Spouses and children who will join applicant:
1. Following to join
2. Accompanying
6. Issues
a. Total quota is offset by number of immediate relatives
admitted
b. Time and expense
i. Processing time
ii. Time to acquire documents
iii. DNA testing
c. Spouses
i. Marriage fraud
1. Must be:
a. Legally valid
b. Factually genuine

i. Intent to establish life

together
ii. Determined at adjudicators
discretion
2. IMFA
a. Triggers investigation:
i. Married during removal
proceeding
ii. Married while application
pending
iii. Married while had alternative
family visa available
3. Conditional Green Card (216)
a. Condition removed after 2 years if
still married
b. Can be waived for divorce if
proved:
i. Original marriage was valid
(proved by alien, if USC
petitioned for divorce)
c. Can be waived for extreme
hardship suffered by LPR or citizen
ii. Employment Based (203(b))
1. P1 (203(b)(1))
a. Extraordinary Ability
b. Outstanding Professors/Researchers
c. Multinational Executives/Managers
2. P2 (203(b)(2))
a. Advanced Degrees
b. Exceptional Ability
c. Requires Job offer
i. Exceptions:
1. National interest
a. Substantial Intrinsic Merit
b. Will benefit nation
c. Will serve nation in substantially
greater way than available US
Worker with minimum
qualifications
2. Some physicians
3. P3 (203(b)(3))
a. Skilled workers
1. Capable of performing skilled labor for
which US workers not available
2. Not seasonal
b. Professionals
i. B.A. or equivalent
c. Other Workers

i. Capable of performing un-skilled labor for which

US workers not available
ii. Not seasonal
iii. Limited to 10,000/yr
d. Requires Labor Certification from Dept of Labor:
i. Certifies that:
1. Not sufficient US workers able, willing,
qualified and available
2. Employment will not adversely affect
wages and working conditions
ii. Unduly Restrictive Job requirements (Matter of
Marion Graham)
1. Presumed if:
a. Live-in requirement
b. Outside O*net requirements
c. Combination of unrelated duties
d. Foreign language requirements
2. Must show Business Necessity
a. Requires specific evidence that
requirement is essential.
4. P4 (203(b)(4))
a. Special workers
i. E.g. Religious workers, long-term govt
employees
5. P5 (203(b)(5))
a. Employment creators
i. Invest $1 million and emply 10 USCs or LPRs
ii. Create new commercial enterprise
b. Includes condition subsequent to show that enterprise
still running
iii. Diversity
5. Categories of Non-Immigrants (101(a)(15))
a. 101(a)(15)(A)
i. Ambassadors
b. 101(a)(15)(B)
i. Temporary Visitors
ii. B1: Business
1. No Employment Authorization required
2. Cannot Work
iii. B2: Pleasure
iv. Visa Waivers/ESTA:
1. Alternative for certain countires
2. Up to 90 Days
3. Cannot apply twice if denied waiver
c. 101(a)(15)(C)
i. Continuous Transit
d. 101(a)(15)(D)
i. Crewmen on ships, planes, temporarily landing in US
e. 101(a)(15)(E)

f.
g.
h.

i.
j.
k.
l.

m.

i. Pursuant to Commercial Treaty

ii. E1:
1. 50% + of trade with U.S.
iii. E2:
1. Investing substantial amount of capital
2. More than 50% of ownership of company is abroad
3. Subject to non-marginality test
101(a)(15)(F)
i. Student
101(a)(15)(G)
i. Foreign Government representatives
101(a)(15)(H)
i. Temporary Workers
ii. H(i)(B):
1. Must show:
a. U.S Employer
b. Specialty Occupation (B.A. or equivalent)
c. Qualified beneficiary
d. Required Wage
2. Requires Labor Certification and Work authorization (Intl
Bricklayers Union)
3. Limited Cap
a. College/University employers exempt from cap
iii. H(ii)
1. Agricultural worker
iv. H(iii)
1. Trainee
2. Up to 2 years
101(a)(15)(I)
i. Press
101(a)(15)(J)
i. Student, professor, etc.in program for at least 2 years
101(a)(15)(K)
i. Fiancs
ii. Spouses awaiting approval
101(a)(15)(L)
i. International corporate executives
ii. Need work Authorization
iii. Must show
1. Qualifying corporate relationship
a. Transferring branches
2. Qualifying employment abroad
a. Worked for corp. for at least one year as:
i. Senior executive
ii. Management
iii. Position requiring specialty knowledge
3. Qualifying employment in US
a. Same requirements (can mix and match requirements)
101(a)(15)(M)
i. Vocational student

n. 101(a)(15)(N)
i. Parents of some other categories if visa holder under 21
o. 101(a)(15)(O)
i. Extraordinary ability
1. Has Employer or agent in states
p. 101(a)(15)(P)
i. Performers in cultural exchanges
ii. Culturally unique performers and teachers
q. 101(a)(15)(Q)
i. International cultural exchanges
1. For employment and training US workers
r. 101(a)(15)(R)
i. Religious workers
s. 101(a)(15)(S)
i. People with information valuable to the government (snitches)
t. 101(a)(15)(T)
i. Human Trafficking victims
u. 101(a)(15)(U)
i. Victims of abuse from violence
v. 101(a)(15)(V)
i. Long separated families
6. Inadmissibility (212)
a. Applies if:
i. Entry
ii. Adjustment (245)
b. Immigration Control Grounds
i. Unlawful Presence (212(a)(9)(B))
1. Includes:
a. Presence after expiration of stay
b. Presecne without admission or parole
c. Presence in violation of conditions
2. Accumulation
a. 180 days (continuous)
i. Excluded for 3 years
b. 365 days (continuous)
i. Excluded for 10 years
3. Tolling
a. During visa overstay appeal
b. During pendency of extension request (up to 120 days)
c. During pendency of asylum application
d. Before turning 18
e. While stateless
f. Once voluntary departure accepted
i. Offer to leave without deportation after removal
order
ii. Failure to show up at removal hearing
1. 5 year exclusion
iii. Once ordered removed
1. Exclusion for 5,10,20, forever
iv. Entering without inspection (EWI) (212(a)(6)(A))

v. Failure to get labor Certification

vi. Fraud or misrepresentation
c. Political and National Security Grounds (212(a)(3))
i. Terrorism (212(a)(3)(B))
1. Engaged or likely to engage in terrorist activity (Matter of SK)
a. Providing material support
b. To organization defined as terrorist
i. Recognized by govt
ii. Meet statutory definition
2. Intent to contribute to terrorist acts irrelevant (Holder)
ii. Adverse foreign policy (212(a)(3)(C)
iii. Totalitarian or Nazi Party (212(a)(3)(D)-(E)
d. Criminal Grounds
i. Same as for deportation
e. Economic Grounds
i. Renounced citizenship for tax purposes (212(a)(10)(E)
ii. Public Charge(212)(a)(4)
1. Likely to become Charge
a. Primary dependence on Public funds
2. Of below 125% of poverty line
a. Affidavit of support from someone who is not
f. Public Health and Moral Grounds
i. Specific diseases
ii. Drug abusers or addicts (212(a)(1)(A)(iv))
7. Admission Procedures (Processing Time)
a. Process:
i. Labor Certification (Only some visas)
ii. Visa Petition
1. USCIS determines if requirement s of visa are met
2. USCIS sends to Visa Center, who sends to overseas consulate
iii. Consular Processing
1. Obtaining paperwork, evidence to prove admissibility, etc.
iv. Actual Admission at Border
1. Can be re-examined for admissibility
b. Premium Processing
i. Expedites process for extra $1K
c. Petitioners
i. Must have US petitioner
1. Exceptions:
a. VAWA cases
b. U and T visas
i. Requires Law Enforcement certification
8. Deportability
a. Immigration Control Grounds
b. Crime-Related Grounds
c. Political and National Security Grounds
9. Other
a. Presumption at border is immigrant intent
i. Dual Intent allowed for some classes of non-immigrants

b. Rebuttable(214(b)):
i. Strong ties abroad