2004 © David Weissbrodt and Laura Danielson
§ 5-1 INTRODUCTION
Non-citizens lawfully admitted to the United States fall into one of three categories: (1) persons who seek admission for a limited period of time and usually for a limited purpose (known as "nonimmigrants"), (2) persons who want to become permanent residents of the U.S. (known as "immigrants"), and (3) refugees. The Immigration and Nationality Act (INA) defines the classifications by which non-citizens may be admitted into the U.S. The INA also provides separate grounds for barring admission (grounds of "inadmissibility") and grounds for removing non-citizens who have been admitted, along with the associated procedures for seeking admission, admission, and removal.
Non-citizens desiring to be admitted to the United States are presumed to be seeking permanent residence and therefore must qualify for one of the immigrant classifications or demonstrate that they are nonimmigrants. INA § 101(a)(15). The primary classes of persons seeking permanent residence are family-sponsored, employment-based, diversity immigrants, and refugees. Refugees are discussed in chapter 10, infra. There is no limit to the number of people who may immigrate as immediate relatives (spouses, parents, or children) of U.S. citizens. INA § 201(b). All other immigrant classifications are subject to numerical limitation.
In order to qualify for permanent residence, applicants must ordinarily demonstrate that they have the intent to live indefinitely in the United States. Immigrants in the numerically-limited classes must obtain a visa number, issued by the State Department, for which there may be a long wait due to quotas.
§ 5-2 IMMIGRANTS NOT SUBJECT TO NUMERICAL LIMITATIONS
§ 5-2.1 Immediate Relatives of U.S. Citizens
A non-citizen may immigrate as an immediate relative of a U.S. citizen if the person is a child, spouse, or parent of the citizen. INA § 201(b). There is no limit to the number of immediate relatives who can immigrate each year, but immigration by immediate relatives reduces the annual quota for other family-sponsored immigration categories. INA § 201(c).
a. Children
To qualify as a "child" of a U.S. citizen, the person must be unmarried and under 21 years of age. The INA definition of "child" encompasses stepchildren and adopted children as well as biological children. INA § 101(b)(1). Children may obtain immediate relative status through either parent if they are born in wedlock. Children born out of wedlock can qualify for permanent residence through their natural mother, or through their natural father if they are legitimated before the age of eighteen or the father "has or had a bona fide parent-child relationship with the [child]." INA § 101(b)(1)(D). Stepchildren are considered immediate relatives if they were less than 18 years of age at the time of the marriage creating the relationship, regardless of the age at which they seek to immigrate.
The INA treats children born out of wedlock differently depending on whether they claim immigration benefits through their mother or father. The Supreme Court has repeatedly upheld the constitutionality of this discrimination, most recently in Nguyen v. I.N.S. (Sup. Ct. 2001), affirming the government's broad power to expel or exclude non-citizens. The Act also distinguishes children who have been legitimated from those who have not. The term "legitimated" applies to any child born out of wedlock who has been accorded legal rights identical to a child born in wedlock. See De Los Santos v. INS (2d Cir.1982).
The INA distinguishes between two types of adoptive relationships. The first is when a child is adopted while under the age of sixteen and lives outside the U.S. in the legal custody of the adopting parents for two or more years. Such children are considered "adopted." INA § 101(b)(1)(E). The second is when both parents have died, disappeared, or abandoned the child, or if the sole or surviving parent is incapable of providing proper care and has in writing irrevocably released the child for emigration and adoption. These children are called "orphans." To immigrate as an immediate relative, an orphan must be adopted or be coming to the United States to be adopted by a U.S. citizen and spouse jointly, or by an unmarried U.S. citizen at least 25 years of age. If the orphan is adopted abroad, the adopting parent and spouse must have personally observed the child prior to or during the adoption proceedings. INA § 101(b)(1)(F). Adopted children may immigrate at any age, provided that the residence requirement was satisfied and the adoption was completed before they turned sixteen, but orphans may only immigrate while under the age of sixteen. Sixteen- or seventeen-year old children may, however, qualify for orphan or adopted child status if their sibling has been adopted. INA § 101(b)(1)(E)-(F). Adoption of orphans has been growing steadily in past years: in 1991, approximately 8,000 orphans were adopted overseas; by 2001, that number had increased to more than 19,000.
The Intercountry Adoption Act of 2000 (114 Stat. 825) added another definition of "child" that pertains only to orphans adopted from countries that are parties to the Hague Convention on Intercountry "doptions. See INA § 101(b)(1)(G). The Convention establishes procedures for adoptions between ratifying countries in order to protect the rights of children and parents and ensure that each adoption is in the child's best interest. Parents wishing to adopt children from Convention countries must obtain approval from the U.S. State Department and the central adoption authority in the country where the adoption is to take place.
b. Parents
A parent who has any of the relationships described under the definition of "child" meets the statutory definition of a "parent," INA § 101(b)(2), provided the sponsoring citizen son or daughter is at least 21 years old. INA § 201(b). When an adopted child or orphan obtains citizenship after being adopted by U.S. citizen parents, the child's natural parents are barred from claiming any rights to immigrate on the basis of the child's citizenship. INA § 101(b)(1)(E)-(G).
c. Spouses
In order to immigrate as the spouse of a U.S. citizen, the non-citizen must have a "valid and subsisting marriage" with that citizen. The validity of the marriage is generally determined by the laws of the country where the marriage took place. The INA defines the term "spouse" in the negative by identifying who cannot qualify as a spouse. INA § 101(a)(35). A spousal relationship cannot be created through a proxy marriage unless the marriage has been consummated. Marriages adverse to public policy, health, and morals, such as incestuous or polygamous marriages, cannot create the necessary relationship. The Court of Appeals in Adams v. Howerton (9th Cir.1982) denied immediate relative classification to a homosexual spouse. The court reasoned that Congress did not intend for homosexual marriages to confer spousal status under INA § 201(b).
Sham marriages, that is, marriages motivated by a desire to confer an immigration benefit, do not provide the requisite relationship, regardless of their validity in the country where the marriage took place. Immigration authorities formerly denied spousal petitions if they determined that the parties "did not intend to establish a life together at the time they were married" (Bark v. INS (9th Cir.1975)) or that the marriage was "factually dead" or nonviable at the time of petitioning. The Court of Appeals in Dabaghian v. Civiletti (9th Cir.1979), however, rejected the "factually dead" test and held that if the marriage is not a sham or fraudulent from its inception, it is valid for adjustment of status purposes until legally dissolved. Subsequent separation of the spouses alone, therefore, should not be the sole basis for denying a spousal petition.
The Immigration Marriage Fraud Amendments of 1986 attempted to deter immigration-related marriage fraud. The Fraud Amendments impose a two-year conditional residency requirement on non-citizen spouses and their "sons and daughters" before they may obtain permanent resident status on the basis of a "qualifying marriage" to a U.S. citizen or permanent resident alien, if the marriage is less than two years old at the time of obtaining such status. To remove the conditional status, the couple must file a petition within the last 90 days of the conditional status period. An immigration officer will either remove the condition based on the couple's documentation, or interview the couple to ascertain that (a) the "qualifying marriage" was not entered into "for the purpose of procuring an alien's admission as an immigrant"; (b) the marriage has not been judicially annulled or terminated, other than through the death of a spouse; or (c) a fee or other consideration other than attorney's fees was not given for the filing of the alien's petition. INA § 216.
As part of the petition to remove conditional resident status, the couple must provide evidence that their marriage was bona fide, such as leases or property records showing joint tenancy or ownership of property, joint financial accounts (if applicable), birth certificates of children born to the couple, and any other similar documentation. Since the focus of the inquiry is on the couple's intent at the time of the marriage, however, such evidence does not preclude a finding that the marriage was fraudulent. In Nikhrodhanondha v. Reno (7th Cir. 2000), the court found that the petitioning couple's marriage was a sham, even though they had two children together, because they gave conflicting testimony regarding their courtship, they only lived together for three months, and they maintained separate finances. It should be noted, however, that maintaining separate finances is acceptable if there is other evidence that the marriage is bona fide.
If the immigration officer makes a favorable determination, conditional status is removed and lawful permanent resident status granted. If the officer makes an unfavorable determination, the conditional resident status is terminated. The non-citizen spouse and children are then subject to removal.
Immigration authorities must also terminate the non-citizen spouse's conditional resident status if the couple fails to file the petition or to appear at the interview, unless the non-citizen qualifies for a waiver. INA § 216(c). One way a non-citizen may qualify for a waiver is to show that extreme hardship would result if he or she were removed. INA § 216(c)(4). To obtain a waiver on this ground, conditional residents must prove that the hardship they face is extreme in comparison to the hardship normally inherent to removal and that it is based on factors that arose after they became conditional permanent residents. 8 C.F.R. § 216.5(e)(1). Non-citizens may find it easier to obtain a waiver on one of the other two grounds provided by section 216. If the marriage has been terminated, non-citizens may obtain a waiver by proving that they entered the marriage in good faith and were not at fault for failing to file a joint petition to have the conditional status removed. Regardless of the present status of the marriage, a waiver is available if a good faith marriage resulted in the battery of or "extreme cruelty" to the non-citizen spouse or the couple's child, again assuming the non-citizen was not at fault for failing to file the required petition or appear for a personal interview. INA § 216(c)(4). Congress added this provision as part of the Violence Against Women Act (see infra, § 5.5-1(c)), so that non-citizens would not have to remain in abusive relationship in order to maintain their immigration status. Immigration regulations, which were intended to prevent fraudulent abuse claims, state that non-citizens should support the waiver petition with evidence such as police reports or professional evaluations. 56 Fed.Reg. 22635-01. Immigration authorities must nonetheless consider any credible evidence of abuse presented by petitioners. INA § 216(c)(4).
Under statute, non-citizens who marry while in removal proceedings may not obtain immediate relative or preference status by reason of that marriage until they have resided outside the United States for two years following the marriage date. INA § 204(g). A common exception to this foreign residency requirement applies if the non-citizen establishes by "clear and convincing evidence" that the marriage was undertaken in good faith and not for the purpose of evading immigration laws, and further, that no fee was paid in consideration of the petition. INA § 245(e). The Marriage Fraud Amendments impose criminal penalties for immigration-related marriage fraud of not more than five years and/or not more than $250,000 in fines, and make marriage fraud an additional ground for removal as well as a perpetual bar to permanent residence. INA § 275(b).
§ 5-3 IMMIGRANTS SUBJECT TO NUMERICAL LIMITATIONS
Prior to the 1990 Act, immigrants were divided into six preference and one nonpreference categories. Persons in the nonpreference category were only allowed to immigrate if the annual immigration quota was not filled by persons in the preference categories. Because the quota for the preference categories had been filled since 1978, the 1990 Act eliminated the nonpreference category altogether. 1990 Act § 162, amending INA § 203.
The 1990 Act increased worldwide immigration levels to 700,000 per year for three years, after which the limit decreased to 675,000 annually. Immigrants subject to numerical limitation are divided into three categories: family-sponsored, employment-based, and diversity immigrants. INA § 201(a). The State Department issues a "visa number" to each immigrant in these categories according to the annual limits. In the past, some visa numbers were also available to persons outside these categories, such as the spouses and children of formerly undocumented aliens who benefited from IRCA's amnesty program and certain employees of U.S. businesses operating in Hong Kong. 1990 Act § § 112, 124, amending INA § 203.
Immigration in the family-sponsored and employment-based categories is also subject to per-country numerical caps; the 1990 Act created a series of calculations necessary to determine these limits. See INA § 202. Generally, the per-country ceiling is at least 25,000, and does not count immigration by immediate relatives. In an attempt to ease the backlog of second preference admissions (spouses and minor children of permanent resident aliens), particularly from Mexico, the 1990 Act exempted 75% of the second preference limitation from the per-country limits. In addition, if the quota for employment-based immigration exceeds the demand in that category in any calendar quarter, any remaining openings may be filled without regard to the per-country limits. INA § 202(a)(5).
With few exceptions, immigrants are "charged" against the immigration quota of the country in which they were born, even if they have become citizens of another country. INA § 202(b). One exception to this policy is where an immigrant's accompanying spouse and children were born in a different country than the primary immigrant and would have to wait longer for a visa number as a result; in this circumstance the spouse and children are "cross-charged" to the primary immigrant's country of birth. Exceptions to the chargeability rule are also made for children born in the United States (e.g., children of diplomats), and for children born in a country where neither of their parents were born or have a residence; in both cases, the children are charged to their parent's country of citizenship.
In general, immigrants within each preference category are issued visa numbers in the order in which their applications are received. Some countries with high immigration rates may become "oversubscribed" if the number of otherwise qualified applicants in a particular category exceeds the number of people who can immigrate within the per-country limits. To prevent an oversubscribed country's immigration quota being entirely filled by immigrants in one preference category, the State Department prorates that country's visa numbers so that the number of people allowed to immigrate in each category is proportional to the worldwide level of immigration in that category. This proration may result in a longer wait for immigrants in some popular categories. The State Department publishes a monthly bulletin that summarizes the availability of visa numbers, and lists any countries that are oversubscribed.
§ 5-3.1 Preference Categories
Prior to the 1990 Act, immigrants subject to numerical limitations were divided into six preference categories. The 1990 Act separated family-sponsored immigrants from employment-based immigrants and created new, though often only slightly modified, categories for each. The annual limit on family-sponsored immigrants is at least 226,000, while the limit on the employment-based categories is 140,000.
In an effort to avoid separation of nuclear families seeking to immigrate, the law provides that if the spouse or child of a family-sponsored, employment-based, or diversity immigrant cannot otherwise immigrate, the spouse or child is admitted in the same preference category, with the same priority, as the principal immigrant. To obtain this derivative status the spouse or child must be "accompanying" or "following to join" the principal immigrant. INA § 203(d). A spouse or child acquired after the principal immigrant obtains permanent resident status is not given this derivative status and must apply under the second preference family-sponsored class, discussed below.
a. Family-Sponsored Preferences
The 1990 Act authorized the immigration of up to 480,000 immediate relatives and persons in family-sponsored preference categories each year. The quota for the numerically-limited family-sponsored preference categories is calculated by subtracting the number of immediate relatives who immigrated in the previous fiscal year from the total allocation of 480,000 and adding the number of unused employment-based visa numbers. INA § 201(c). Regardless of the actual result of this computation, the Act mandates that the family-sponsored immigration quota must be at least 226,000. Due to high levels of immigration by immediate relatives, the quota only rarely exceeds the statutory minimum. Since immigration by immediate relatives is unlimited, the overall number of persons immigrating on the basis of family relationships each year is usually far more than 480,000.
The four numerically-limited family-sponsored preference categories are as follows:
First Preference C Unmarried sons and daughters of U.S. citizens C 23,400 plus any unused visa numbers from the other family-sponsored preference classes.
Second Preference C Spouses, children, and unmarried sons and daughters of lawful permanent resident aliens C 114,200, plus any visa numbers in excess of 226,000. Separate numerical limits exist for:
A. Spouses and children C 77% of the visa numbers issued under this preference, or about 87,900;
B. Unmarried sons and daughters (at least 21 years old) C 23% of the visa numbers issued under this preference, or about 26,300.
Third Preference C Married sons and daughters of U.S. citizens C 23,400 plus any unused visa numbers from the first and second family-sponsored preference categories.
Fourth Preference C Brothers and sisters of U.S. citizens, if the citizen is at least 21 years old C 65,000 plus any unused visa numbers from the first, second, and third family-sponsored preference categories.
The term "sons and daughters" is used in the preference categories to refer to children of U.S. citizens or lawful permanent residents who are married or over the age of twenty-one. As defined in the Act, "children" refers only to unmarried persons under the age of twenty-one. INA § 101(b). The term "unmarried" used in the first and second preference classes is defined as the marital state of the immigrant at the time of immigration, regardless of any previous marriage. INA § 101(a)(39). The term "brothers and sisters" used in the fourth family-sponsored class is undefined, but may be derived from the defined term "children" from common "parents."
b. Employment-Related Preferences
The 1990 Act dramatically increased the quota for employment-based immigration, from 54,000 to 140,000, plus any unfilled spots in the family-preference categories (which are highly unlikely). The American Competitiveness in the Twenty-First Century Act of 2000 further increased this allocation by "recapturing" employment-based visa numbers that were not used in fiscal years 1999 and 2000. 114 Stat. 1254. Beginning in fiscal year 2001, these "recaptured" numbers were to be added to the quota for the first three employment-based preference categories each year until they have all been used.
Employment-based immigrants must qualify for one of the following five preference categories:
First Preference C Priority Workers C 28.6% of the total worldwide level (40,000 at present) plus any unused visa numbers from the fourth and fifth employment-related preference categories. INA § 101(a)(44). Priority workers consist of:
A. Persons of "extraordinary ability" in the sciences, arts, education, business, or athletics;
B. Outstanding professors and researchers;
C. Certain multinational executives and managers.
"Extraordinary ability" is defined as a "level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor." 56 Fed.Reg. 60897-01. The 1990 Act requires that the immigrant's extraordinary ability be reflected through "sustained national or international acclaim" and extensive documentation of the person's contribution to his or her field. INA § 203(b)(1). Likewise, to be considered an "outstanding" professor or researcher, an immigrant must be internationally recognized in his or her field, as shown by published works, awards, or other achievements. 8 C.F.R. § 204.5. To qualify as a multinational executive or manager, an immigrant must have been employed for at least one year in an executive or managerial capacity at an overseas office of a company that does business in the United States. Persons in the "extraordinary ability" category may file their own immigration petitions, but professors and executives or managers must be sponsored by an employer.
Second Preference C Professionals holding advanced degrees, or persons of exceptional ability in the sciences, arts, or business C 28.6% of the total worldwide level (40,000 at present) plus any unused visa numbers from the first preference category. An "advanced degree" is any academic or professional degree above the baccalaureate. A baccalaureate degree plus five years' progressive work experience can be substituted for a master's degree, but if the immigrant's profession customarily requires a doctorate, he or she must have that degree. 8 C.F.R. § 204.5(k)(2). The term "exceptional ability" means a degree of expertise significantly above that ordinarily encountered in the arts, sciences, or business. For example, an average musician is not included, but one with national recognition is. Cf. Lee v. INS (9th Cir.1969). The possession of a degree, diploma, certificate, or license to practice a particular profession is not, by itself, sufficient evidence of exceptional ability. INA § 203(b)(2).
In most cases, a non-citizen seeking admission to the U.S. under this preference category must have proof of a job offer. This requirement may be waived, however, when the immigrant's employment is in the national interest. Physicians who agree to work for at least five years in areas with a shortage of health care professionals are entitled to national interest waivers if a federal or state agency attests that their work will be in the public interest. INA § 204(b)(2)(B)(ii). In Matter of New York State Department of Transportation (Comm'r 1998), the Administrative Appeals Office established a three-part test to determine what other circumstances warrant the issuance of a national interest waiver. To be entitled to such a waiver, the immigrant must work in an area of "substantial intrinsic importance," his or her employment must provide a benefit that is national in scope, and the immigrant must be capable of serving the national interest to a greater degree than would a qualified U.S. worker.
Third Preference C Skilled workers in short supply, professionals holding baccalaureate degrees, and other workers in short supply C 28.6% of the total worldwide level (40,000 at present) plus any unused visa numbers from the first and second employment-related preference categories. No more than 10,000 "other workers" may immigrate each year.
The term "professionals," used in the second and third preference categories, includes architects, engineers, lawyers, physicians, surgeons, and teachers. INA '101(a)(31). Workers in other occupations that require at least a baccalaureate degree are also considered professionals. 8 C.F.R. § 204.5(k)(2). "Skilled worker" means one who is capable of performing a job which requires at least two years of training or experience.
8 C.F.R. § 204.5(l)(2).
8 C.F.R. § 204.5(l)(2).
Fourth Preference C Certain Special Immigrants C 7.1% of the total worldwide level (10,000 at present). This category includes the special immigrants detailed in section 5-4, infra. Principally, this preference category is comprised of religious workers, former employees of the U.S. government and international organizations, and juveniles who are dependent on a U.S. court or state agency. The numerical allotment for special immigrants is expected to be sufficient for the next several years. INA § 101(a)(27)(C) through (M).
Fifth Preference C Employment Creation C 7.1% of the total worldwide level (10,000 at present). This preference category is comprised of investors who will create at least ten U.S. jobs by investing in a new commercial enterprise benefiting the U.S. economy. The minimum required investment is $1 million, though it may be reduced to $500,000 if the investment is in a rural area or an area of high unemployment. If the commercial enterprise is located in an area of low unemployment, the Bureau of Citizenship and Immigration Services (BCIS) may raise the required investment to $3 million, but it has not yet done so. To avoid fraud, investors are accorded only conditional permanent resident status for two years, after which the BCIS reviews the investment.
Since the employment creation category was instituted in 1990, the number of immigrant investors has never reached the annual limit. The number of immigrants in this category peaked in 1997 at approximately 1,400. In December of that year, concern about possible fraud prompted the INS to halt processing of these petitions temporarily. The Service was particularly concerned about partnerships that allowed a prospective immigrant to make small payments towards the required investment during the conditional status period and pay the balance after the condition was removed. Some such partnerships offered the immigrant a guaranteed return on the investment, or offered to buy back the immigrant's shares as soon as the balance came due. The INS resumed processing of fifth-preference petitions in mid-1998 after issuing four administrative decisions clarifying the requirements for this preference category. These decisions held in part that the investment must involve a degree of risk which is absent from schemes involving a guaranteed return or buy-back option, and that the immigrant must have a comprehensive business plan and document the source of his or her funds. See Matter of Hsiung (BIA 1998); Matter of Ho (BIA 1998); Matter of Soffici (BIA 1998); Matter of Izumii (BIA 1998). After the BIA issued these decisions, the number of people seeking to immigrate as investors dropped significantly, to only 200 in 1999 and 2000.
c. Diversity Immigrants
The 1990 Act attempted to restore the flexibility that the nonpreference categories were intended to create under the INA, while at the same time, reverse the drastic reductions in immigration from certain, mostly European, countries. The 1986 Immigration Reform and Control Act established the NP-5 pilot lottery program, through which persons from "adversely affected" countries, that is, countries contributing disproportionately few immigrants, could become permanent residents. Approximately 1.3 million people applied for 10,000 diversity immigrant openings. In 1988, Congress increased the allotment from 10,000 over two years, to 20,000 C again in an effort to assist the admission of immigrants from "under represented" countries.
The 1990 Act established a permanent diversity immigration program, which began in 1995 (now known as the DV-1 program). 55,000 diversity immigrants are selected by lottery each year. INA § 201(e). The program uses a complicated formula to categorize countries as either "low-admission" or "high-admission," based on immigration rates during the past five years. Nationals of high-admission countries are not eligible for the lottery. Another formula is used to designate geographic regions as high-admission or low-admission. Countries in low-admission regions (currently Europe and Africa) receive a greater percentage of the diversity immigration allotment than countries in high-admission regions. To qualify for the diversity program, an applicant must have attained a high school education or its equivalent, or have at least two years of work experience in an occupation which requires at least two years of training or experience. Lottery "winners" are selected by random drawing from petitions received during a designated annual application period; those selected must apply for a visa number by the end of the fiscal year or lose their place. The Department of State selects more than 55,000 winners each year, on the assumption that not everyone who is selected will complete the application process. The lottery is a highly uncertain way to obtain permanent residence: in fiscal year 2003, more than 6 million people applied for this program.
d. Inhabitants of Hong Kong and Other Special Groups
The 1990 Act and subsequent amendments have made special provisions for specific groups of immigrants. For example, anticipating increased immigration from Hong Kong following that territory's return to the People's Republic of China in 1997, the 1990 Act provided that the per-country immigration limit for Hong Kong would be the same as that for an independent country (approximately 20,000). 1990 Act § 103. The Act further provided that immigrant visas issued to Hong Kong residents would remain valid until January 1, 2002, so that visa holders could decide after 1997 whether to immigrate or stay. Although the latter provision has lapsed, the treatment of Hong Kong as an independent country with regard to immigration limits remains in effect. Similarly, Northern Ireland is treated as a separate foreign state for purposes of the diversity immigrant program. INA § 203(c)(1)(F).
§ 5-4 SPECIAL IMMIGRANTS
ASpecial immigrants" are resident aliens returning from temporary trips abroad; former U.S. citizens; ministers of recognized religious denominations, their spouse, and their children; certain religious workers other than ministers seeking admission to the U.S. before October 2003, their spouses, and their children; employees of the U.S. government abroad with 15 or more years of service; certain employees of the Panama Canal Company or Canal Zone government, their spouses, and their children; certain officers and employees of international organizations, their spouses, and their children; graduates of foreign medical schools who are fully licensed to practice in a state and have been practicing in such a state since January 1978 or earlier, their spouse, and their children; certain non-citizens declared dependent on a juvenile court in the U.S. and deemed eligible for foster care; non-citizens with qualifying periods of service in the U.S. armed forces; and some foreign-language broadcasters. INA § 101(a)(27).
Until the 1990 Act, special immigrants were not subject to numerical limitations. After 1990, however, only resident aliens returning from temporary trips abroad and former U.S. citizens remained free from numerical limits. INA § § 201(b)(1), 203(b)(4). The remaining special immigrants are limited to 10,000 per year. During the 1990s, approximately 8,000 special immigrants in the numerically limited categories were admitted to the U.S. each year. The special immigrant group is the subject of frequent legislative modifications, so the possible inclusion or exclusion of any particular individual must regularly be checked against the statutory language.
Commuter aliens, or "green card commuters," are an interesting group included in the special immigrant category. Commuter aliens are non-citizens who reside in Mexico or Canada, but who are admitted into the U.S. as immigrants on a daily or seasonal basis for employment. These individuals are placed under the special immigrant category of resident aliens returning from temporary trips abroad. The great majority of these workers commute from Mexico. 8 C.F.R. § 211.5.
§ 5-5 PROCEDURAL REQUIREMENTS
§ 5-5.1 Petitions and Certification
Before individuals in family-sponsored or employment-based categories can immigrate to the U.S., a petition must be filed on their behalf and approved by the BCIS. INA § § 203(f), 204. For the immediate relatives and family-sponsored immigrants, the petition is filed by the U.S. citizen or resident alien who claims the requisite relation to the prospective immigrant using Form I-130 or, for adopted orphans, Form I-600. For employment-based immigrants, this petition is usually filed by the immigrant's intended employer. In some circumstances, however, the immigrant is allowed to file the petition. See infra § 5-5.1(b).
All petitions are made under oath (INA § 204(a)(1)) and the burden of proof is always on the applicant. INA § 291. Petitions may be voluntarily withdrawn at any time. Approval of a petition may be revoked if there is a change in either party's status, such as death, divorce, or loss of the job offer, prior to final decision on an application for permanent residency. 8 C.F.R. § 205.1
a. Family-Sponsored Immigration Petitions
The process of applying for family-sponsored immigration begins when the prospective immigrant's relative submits Form I-130 to the Regional Processing Center having jurisdiction over the relative's residence. 8 C.F.R. § 204.1(e)(1). For example, the citizen-wife of a non-citizen might submit Form I-130 on behalf of her husband. Petitioners living outside of the United States must file the petition at a BCIS office, if there is one in the petitioner's country of residence, or at a U.S. consulate. 8 C.F.R. § 204.1(e). The petition must be accompanied by proof of the petitioner's U.S. citizenship or permanent resident status and by documents which prove the petitioner's relationship to the non-citizen (e.g., a marriage certificate in the case of a spouse). 8 C.F.R. § 204.1(f).
The 1986 Immigration Fraud Amendments attempted to eliminate benefits gained through a second preference petition as a result of a prior sham marriage. A permanent resident who immigrated through marriage to a prior spouse is prohibited from petitioning on behalf of a new non-citizen spouse for five years after attaining permanent resident status. This condition is eliminated if the marriage was terminated because the prior spouse died or the permanent resident can meet the burden of proving that the prior marriage was not fraudulent. INA § 204(a)(2).
A spouse or child accompanying an immigrant in one of the numerically limited preference categories is granted the same preference as the primary immigrant. INA § 203(d). Therefore, the sponsoring relative is only required to file one petition for family members immigrating together. This derivative status does not apply, however, to immediate relatives. The sponsoring U.S. citizen must file a separate petition for each immediate relative. 8 C.F.R. § 204.2(a)(4).
U.S. citizens seeking to adopt an orphan overseas may obtain advance processing of their petition by filing Form I-600A. This form is used to determine the petitioners' suitability as adoptive parents and must include a home study conducted by an authorized or licensed public adoption agency. 8 C.F.R. § 204.3(c). The petitioners must also submit proof of citizenship and marital status, if they are currently or ever have been married. Once the petitioners have identified an orphan they wish to adopt, they must complete the petition by submitting Form I-600 along with proof that the child is an orphan and has been legally adopted in his or her country of origin.
U.S. citizens seeking to adopt an orphan overseas may obtain advance processing of their petition by filing Form I-600A. This form is used to determine the petitioners' suitability as adoptive parents and must include a home study conducted by an authorized or licensed public adoption agency. 8 C.F.R. § 204.3(c). The petitioners must also submit proof of citizenship and marital status, if they are currently or ever have been married. Once the petitioners have identified an orphan they wish to adopt, they must complete the petition by submitting Form I-600 along with proof that the child is an orphan and has been legally adopted in his or her country of origin.
b. Employment-Based Immigration Petitions
Immigrants seeking admission as persons of "extraordinary ability," or through the fourth and fifth employment-based preference categories may file their own petitions. INA § 204(a)(1)(E), (G), (H). Immigrants of exceptional ability who qualify for a national interest waiver may also self-petition. 8 C.F.R. § 204.5(k)(1). For all other employment-based immigrants, the employer must submit a Form I-140 petition to the Regional Service Center in the region where the immigrant will be employed. 8 C.F.R. § 204.5(b)-(c).
Petitions for second- or third-preference immigrants must include an approved labor certification, unless the immigrant qualifies for a national interest waiver or is the beneficiary of a Schedule A filing (for occupations in which there are established, predetermined labor shortages). 8 C.F.R. § 204.5(k)(4). A second employment-related preference petition must also include documents that prove the beneficiary's qualifications, such as diplomas and licenses or records of national or international recognition, including any recognized prizes or awards received. 8 C.F.R. § 204.5(k)(3).
The Department of Labor will only issue a labor certification if it determines that: (a) there are not sufficient qualified workers available at the place where the immigrant will be employed; and (b) that employment of the immigrant will not adversely affect wages or working conditions of similarly employed U.S. workers. INA '212(a)(5). An employer applies for labor certification by filing Form ETA-750 with a local state job service office acting on behalf of the Department of Labor. 20 C.F.R. § 626.21(a). The application requires a statement from the employer describing the job, qualifications, and wages as well as a statement from the intending immigrant of his or her qualifications.
Along with submitting Form ETA-750, the standard labor certification process requires the employer to document its unsuccessful attempts to find a U.S. worker for the job. The employer must have advertised the job to the public and to its other employees, describing the job with particularity, and offering the prevailing wage rate, working conditions, and requirements for the occupation in the region of intended employment. The employer must also have offered wages and employment terms and conditions as favorable as those offered to the prospective immigrant. 20 C.F.R. § 656.21. The validity of these regulations was upheld in Production Tool Corp. v. Employment and Training Administration (7th Cir.1982) and Industrial Holographics, Inc. v. Donovan (7th Cir.1983). Furthermore, the employer must document that all U.S. applicants for the job were rejected solely for lawful, job-related reasons. 20 C.F.R. § 656.21(b)(6).
After it receives the employer's application for labor certification, the Employment Service verifies that the job was offered at the prevailing wage, then posts the job opening on its recruitment system for thirty days. 20 C.F.R. § 656.21(f). At the same time, the employer must advertise the position in a newspaper or trade journal. 20 C.F.R. § 656.21(g). If these efforts fail to produce a qualified U.S. worker, the local employment service office will forward the application to the certifying officer of the Regional Office of the Department of Labor for final determination. If the certifying officer decides to issue a certification, Form ETA 750 will be returned to the employer with an official certification stamp. 20 C.F.R. § 656.28. The BCIS will then examine the employer's actual immigration petition. Despite labor certification, the BCIS may still deny a petition because of fraud or misrepresentation by the employer or immigrant, the immigrant's inadequate qualifications for the job, or the employer's inability to pay the offered wage.
If the certifying officer decides that the employer's petition does not meet all the requirements, he or she will issue a Notice of Findings, which is a preliminary denial of certification. 20 C.F.R. § 656.24(b). The employer then has 35 days to comply with the requirements or to submit a written argument rebutting the bases of the negative determination. 20 C.F.R. § 656.25(c). If the employer fails to file a timely rebuttal or the certifying officer still finds that the employer has not met the requirements, the officer issues a Final Determination, denying certification. 20 C.F.R. § 656.25. The employer is entitled to a review of the denial by the Board of Alien Labor Certification Appeals, which may take about two years. 20 C.F.R. § 656.26. If the administrative appeal is unsuccessful, judicial review in federal district court is available under the Administrative Procedure Act.
In considering labor certification, the certifying officer has substantial discretion to determine what is required for the "basic job" that the employer wishes to fill and whether the requirements listed in the employer's job description are excessive. For example, the Court of Appeals for the D.C. Circuit in Pesikoff v. Secretary of Labor (D.C.Cir.1974) found no abuse of discretion in denying labor certification to a live-in maid, even though there were no maids available in the area who were willing to live in. The Court held that the employer's live-in requirement was an irrelevant personal preference and that it was "well within the Secretary's discretion to ignore employer specifications which he deems ... irrelevant to the basic job which the employer desires performed." The Department of Labor has issued a Dictionary of Occupational Titles which provides the principal source of information for determining the requirements for jobs which may be the subject of labor certification.
Labor certification will be denied if a non-citizen is self-employed or if the employer's application for certification does not clearly show that the job opportunity has been and is still open to any qualified U.S. worker. 20 C.F.R. § 656. In Hall v. McLaughlin (D.C.Cir.1989), the U.S. Court of Appeals held that no genuine employment relationship exists where the intending immigrant and the corporation were inseparable and the immigrant was indispensable. The court followed a two-part test for determining whether a genuine employment relationship exists. First, the court considered whether the arrangement was a "sham" and inquired whether the corporation was established for the sole purpose of obtaining labor certification for the immigrant. Second, the court considered the "inseparability" question: "Whether the corporation, even if legitimately established, relies so heavily on the pervasive presence and personal attributes of the alien that it would be unlikely to continue in operation without him." The court reasoned that if the immigrant is inseparable from the corporation, the corporation will not truly consider hiring a U.S. worker.
The position for which the employer seeks labor certification must also be permanent in nature. There is, however, no guarantee that immigrants seeking admission under the second or third employment-based preference categories will not later change occupations and compete with U.S. workers. In Yui Sing Tse v. INS (9th Cir.1979), labor certification was upheld despite evidence of the immigrant's intent to change his occupation eventually. The American Competitiveness in the Twenty-First Century Act permits immigrants to change jobs while waiting for approval of an employment-based application to adjust to permanent residence status if they are in the U.S., their application has been pending for more than 180 days, and the new job is in a same or similar occupational classification. 114 Stat. 1254.
Many employers can make use of alternative certification methods that are faster than the standard process, under a procedure called "Reduction in Recruitment." An employer who has tried to recruit U.S. workers without success within the six months prior to filing a labor certification petition can request a labor certification. 20 C.F.R. § 656.21(i). The employer must document its recruitment efforts, which generally must include at least two print ads. A second alternative, "special handling," is available when hiring college or university teachers or persons of exceptional ability in the performing arts. 20 C.F.R. § 656.21a. For these professions, the INA provides that a labor certification can be issued if there is no equally qualified U.S. worker. INA § 212(a)(5)(A). For other occupations, the labor certification will be denied if there is even a minimally qualified U.S. worker.
For a very few occupations, listed in 20 C.F.R. § 656.10, Schedule A, no labor certification processing is required. As of 2002, this list includes only physical therapists, professional nurses, and persons of "exceptional ability in the sciences or arts." The "exceptional ability" group under schedule A is similar to the first preference category, for which no labor certification or employer petition is required; consequently, most persons who might qualify for inclusion in this group would likely pursue a first-preference classification instead. If the immigrant's occupation is included in Schedule A, Form ETA 750 may be submitted directly to the BCIS along with the preference petition. 20 C.F.R. § 656.22(a). The determination of the immigrant's qualification for Schedule A is final; review is not available.
For certain occupations listed in 20 C.F.R. § 656.11, Schedule B, no labor certification is available. Schedule B occupations are primarily unskilled labor such as clerks, janitors, drivers, etc. If the immigrant's occupation is included in Schedule B, no certification is available unless a special waiver is obtained from the Department of Labor Regional Certifying Office. 20 C.F.R. § 656.23. Such waivers are very rare.
c. Self-Petitioning
Although most people cannot immigrate unless a sponsoring relative or employer petitions for them, a few individuals may file their own petitions. Self-petitioning is available to persons of extraordinary ability in the first employment preference category; immigrants in the second employment preference category who qualify for a national interest waiver; special immigrants and investors; applicants for the diversity lottery program; widows or widowers of U.S. citizens; certain Amerasian children; and battered spouses or children of U.S. citizens or permanent resident aliens. See INA § 204(a)(1), § 204(f).
In some cases, Congress has made self-petitioning available to persons who would be considered immediate relatives when their citizen relative cannot or will not file a petition. For example, widows or widowers of U.S. citizens who could have qualified for permanent residence but for the death of their spouse may self-petition if they apply within two years of being widowed. Section 204(f) allows certain children fathered by U.S. citizens in Southeast Asia before 1982 to petition for permanent residence, whether or not they have contact with, or even know, their citizen fathers.
The self-petitioning provisions for battered spouses and children serve a slightly different purpose. Congress enacted the provisions in the Violence Against Women Acts of 1994 and 2000 to enable victims of domestic violence to leave abusive relationships without jeopardizing their immigration status. 114 Stat. 1518. To qualify, the petitioner must be a person of good moral character residing in the U.S. and must have lived in the U.S. with the abusive spouse or parent at some time. If petitioning as the spouse of a U.S. citizen or lawful permanent resident, he or she must show that the marriage was entered in good faith and that either the petitioner or the petitioner's child was subject to extreme cruelty by the citizen or permanent resident. INA § 204(a)(i)(A)-(B). A child must show that he or she suffered extreme cruelty at the hands of a U.S. citizen or lawful permanent resident parent.
Section 204 formerly required that a self-petitioning spouse remain married to the citizen or lawful permanent resident at the time of filing the petition. Congress amended this provision in the Violence Against Women Act of 2000, so that a battered spouse may self-petition if within the last two years the abuser died or lost citizenship or residence status because of domestic violence, or if the marriage was terminated because of the abuse. INA § 204(a)(1)(a)(iii). The Violence Against Women Act of 2000 also removed a requirement that the battered spouse prove that removal from the U.S. would result in extreme hardship. 114 Stat. 1519.
Some aspects of the self-petitioning law may provide difficulty for petitioners. One potential stumbling block is the "good moral character" requirement. Section 101(f) of the INA lists acts that preclude a finding of good moral character, including being a habitual drunkard, engaging in prostitution, and committing an "aggravated felony." INA § 101(f). Committing one of these acts will not bar a finding of good moral character, however, if the petitioner can show that the act was connected to the abuse. INA § 204(a)(1)(c). Evidentiary requirements are another source of difficulty. The self-petitioner must provide evidence of the battery, such as police reports, photos, or affidavits. 8 C.F.R. § 204.2. Immigration authorities are required to consider any credible evidence in support of the petition, but they have discretion as to what is considered credible. INA. § 204(a)(1)(H).
d. Affidavit of Support
The petitioner's responsibilities in the immigration process do not end after the immigration petition is approved. INA § 212 requires all family-sponsored immigrants and some employment-based immigrants to obtain an affidavit of support from their petitioner as evidence that the immigrant will not become a public charge. INA § 212(a)(4). By signing the affidavit, the petitioner (or sponsor) contracts with the U.S. government to provide financial support to the immigrant if needed until the immigrant has worked in the U.S. for forty qualifying quarters (usually ten years), or until the beneficiary acquires U.S. citizenship. INA § 213A. The sponsor must be domiciled in the United States and must have an income equal to at least 125 percent of the federal poverty guideline. The income requirement may be satisfied by proof of significant assets (equal to five times the difference between the sponsor's salary and the income requirement) held by the sponsor or the immigrant. If the sponsor cannot meet the income requirement, he or she may obtain a co-sponsor who has sufficient income. The affidavit of support is submitted in the final stages of the application process and must be accompanied by the sponsor's tax returns for the past three years.
e. Priority Dates
The date on which a petition is filed by or on behalf of an immigrant becomes that person's priority date as soon as the petition is approved. 22 C.F.R. § 42.53(a). In the case of family-based immigrants, this is the date on which the sponsoring relative files an I-130 petition, or when a self-petitioning immigrant files an I-360 petition. 8 C.F.R. § 204.1(c). For employment-based petitions that require labor certification, the priority date is the date that a labor certification request is filed with the Department of Labor; when no labor certification is required, the priority date is the date that the employer or immigrant files an I-140 or I-360 petition. 8 C.F.R. § 204.5(d).
Employment-based and family-sponsored immigrants are issued visa numbers in chronological order according to the immigrant's priority date and country of origin. Depending on the immigrant's preference category, he or she could be able to immigrate immediately, or could have to wait ten or more years for the priority date to become current. Residents of oversubscribed countries may have to wait even longer.
An applicant retains his or her priority date even if he or she changes preference category due to changing marital status, turning twenty-one years old, or the naturalization of the sponsoring relative. 8 C.F.R. § 204.2(i). This rule has created problems for immigrants who changed to a less-favorable preference category while their applications were pending. To remedy this situation, Congress enacted the Child Status Protection Act of 2002. 116 Stat. 927. This Act provides that children of U.S. citizens who marry or turn twenty-one while waiting for their application to be processed will remain in the immediate relative preference category.
§ 5-5.2 Processing for Immigrants Outside the U.S.
After approval of the preference petition, the actual application process begins for an immigrant who resides outside the United States. In most cases, the National Visa Center (NVC) in New Hampshire reviews the application and the applicant's affidavit of support and then sends these documents to the U.S. consulate in the consular district where the applicant resides for further processing. For immigrants applying through consulates in Africa and ten other "alpha" consulates, however, the NVC does all of the application processing except for the final interview with the applicant, which is conducted at the consulate. 78 Inter.Rel. 1315. This section describes the standard procedure for consular processing.
When a petition has been approved and a visa number is available immediately, the NVC sends a packet of instructions to the applicant and notifies the consulate that will be handling the application. If no visa number is available because the applicant's priority date is not yet current, the NVC notifies the applicant that his or her name has been placed on a waiting list. When a visa number is available, the applicant must submit a biographical information form (Form DS-230 Part I) to the NVC with the application fee. 22 C.F.R. § 42.63. The applicant must then assemble relevant documents including, for example, a birth certificate; marriage certificate; police clearances from any country where the applicant has lived for more than a year since attaining the age of sixteen; and prison or military records. 22 C.F.R. § 42.65. The applicant will present these documents to the consulate at the visa interview. At the same time, the applicant's sponsor must complete the Affidavit of Support (see supra, § 5-5.1(d)) and send it to the NVC.
After the NVC reviews the biographical information form and affidavit of support, it forwards the applicant's file to the consulate handling the case. The consulate then schedules an interview with the immigrant and instructs him or her to obtain a medical examination and complete the final biographical information form, Form DS-230. Before the interview, the immigrant must obtain a medical examination from a physician designated by the consulate. 22 C.F.R. § 42.60. The immigrant pays for this examination, in addition to the other application fees. The consular officer reviews the documents, checks for any criminal history, conducts a personal interview, and if all is in order, has the applicant sign the formal application under oath.
The consul then rules on the application. The authority to determine the eligibility of an applicant belongs exclusively to the consul. INA § § 104(a), 221(a). The principal consular officer must review any denial of an immigration application, but there is no formal review available after that. 22 C.F.R. § 42.81. The consulate must inform the applicant of the provision of law or regulation upon which the denial was based. 22 C.F.R. § 42.81(b). The Department of State may also review a denial but, other than in matters of interpretation of law, its opinion to the consul is only advisory. 22 C.F.R. § 42.81(d). The applicant has one year to overcome the objection on which the refusal was based or else the entire application process must be started anew. 22 C.F.R. § 42.81(e). The burden of proof is always on the applicant to establish eligibility. INA § 291.
§ 5-5.3 Visa Issuance and Admission
If the consul rules in favor of the applicant, the consul issues an immigrant visa. INA § 101(a)(16). The visa consists of an envelope containing Form OF-155A, which shows the consul's approval, the applicant's completed Form OF-230, and any documents necessary in determining the applicant's identity, classification, and eligibility. 22 C.F.R. § 42.73(b). The visa allows the individual to enter the U.S. as an immigrant and is valid for a period of six months (3 years for an adopted child) and may not be extended beyond that time. 22 C.F.R. § 42.72(a) & (b). A new immigrant visa, however, may be issued to immigrants not subject to numerical limitations if they are unable, for reasons beyond their control, to travel to the U.S. during the six-month period, provided they remain qualified for the visa. 22 C.F.R. § 42.74. An immigrant subject to numerical limitations may receive a replacement visa if the immigrant was unable to travel to the U.S. during the six-month period, but only if the replacement visa is issued in the same fiscal year as the original visa and the immigrant's number was not returned to the Department of State for reissuance. 22 C.F.R. § 42.74(b).
Once the immigrant actually arrives in the U.S., an immigration officer at the border briefly examines the immigrant's eligibility for permanent residence. If the inspecting immigration officer finds the immigrant to be inadmissible, the officer may commence removal of the immigrant, in spite of the visa. INA § 221(h). In that case, the immigrant may be temporarily detained, either aboard the vessel of arrival or in the U.S. while further determination is made. 8 C.F.R. § 235.3. If the immigration officer finds the visa to be in order and the immigrant to be admissible, the visa is retained by the BCIS as a permanent record of admission. INA § 221(e). The immigrant is then issued a Form I-551 (green card) and becomes a permanent resident alien. 8 C.F.R. § 264(1)(b). "Green cards" (which are no longer green) must be renewed every ten years.
§ 5-5.4 Permanent Resident Procedures for Immigrants Already Inside the U.S.
Individuals who want to immigrate are ordinarily expected to remain outside the United States until an immigrant visa is available. Nonetheless, many people are admitted to this country as nonimmigrants and then apply to adjust status to permanent residence. See INA § 245. In recent years, adjustments of status have accounted for around fifty percent of all persons granted permanent residence. The procedures for the underlying immigrant petitions and labor certificates are precisely the same for immigrants in or outside the U.S. Persons in numerically-limited preference categories must obtain a visa number, even though they are already in the U.S. and do not need an immigrant visa, because they are counted against the worldwide immigration quotas. The wait to obtain a visa number is the same whether an applicant adjusts status or immigrates from outside the United States; processing of adjustment of status applications, however, takes considerably longer than consular processing of immigration applications. Immediate relatives and persons who are in a preference category that is "current" may file an application for adjustment of status immediately upon approval (or in most cases, filing) of any underlying petition at the appropriate Regional Service Center. 8 C.F.R. § 245.2(a). Otherwise, they must wait for their priority date to become current. Adjustment of status is generally only available to people who entered the U.S. lawfully and have maintained lawful nonimmigrant status. INA § 245(i) allowed persons who entered the country without inspection or fell out of status to adjust status on payment of a one thousand dollar fine. This provision applies only to immigration petitions or labor certifications filed before April 30, 2001, and it has not yet been renewed by Congress. Adjustment of status is discussed further in the last section of chapter six infra.
The Legal Immigration Family Equity (LIFE) Act, enacted in 2000, has made it possible for certain family-based immigrants to enter or remain in the United States while their immigration petitions are pending, alleviating some of the difficulties these individuals face as a result of the high demand for admission to the U.S. The Act provides that spouses of U.S. citizens and their accompanying minor children may enter the United States on a "K" nonimmigrant visa either before or after filing an immigration petition. 114 Stat. 2672. Processing of K visa petitions is generally much faster than processing of immigration petitions, so many qualifying immigrants will enter the U.S. on such visas and then adjust status to permanent resident. The LIFE Act also permits spouses and children of legal permanent residents who have been waiting for a visa number for at least three years to enter the country on a "V" nonimmigrant visa and to work until their priority date becomes current.
