General Practice, Solo, and Small Firm Division The Compleat Lawyer
Winter 1997, Volume 14, No. 1 copyright American Bar Association. All rights reserved.
BY EDWARD J. CARROLL
Edward J. Carroll practices in the firm of Carroll & Scribner, Burlington, Vermont, focusing on commercial, corporate, and immigration and nationality law. He is vice-chair of the Immigration Law Committee of the ABA General Practice, Solo and Small Firm Division.
Clients seek advice about U.S. immigration law for a number of reasons. Perhaps they wish to unify a family, raise capital for an existing business, open a new business, adopt a child, hire an employee, defend against administrative or criminal proceedings, hire an au pair, or consult with an expert.
Statutes and regulations mirror the chronic conflict in U.S. immigration policy between the goal of restricting immigration to protect the security and economy of the United States and the goal of permitting immigration to meet the needs of business, to benefit the country's economy and culture, and for humanitarian reasons.
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) is a major amendment to the Immigration and Nationality Act (INA), and signals clearly that at this time restrictions on immigration are in the ascendancy.
Keep an Eye Out for these Situations
- Aliens who are issued immigrant visas are required to take up permanent residency within six months of receiving their visas. Thereafter, they must maintain the United States as their permanent place of abode. Failure to do so may result in the confiscation of their Resident Alien Card (Green Card).
- Nonimmigrant visas are often valid for periods longer than the period of admission granted by INS at the border. In some cases, the visa may permit multiple entries to the United States. However, if an alien overstays any period of admission granted by INS, the visa obtained for the purpose of that type of entry automatically becomes invalid.
- A long-existing ground of exclusion is the likelihood that an applicant for admission or adjustment of status may become a public charge. IIRIRA now provides that affidavits of support are to be enforceable contracts. In a family relationship case, the petitioner generally must provide the affidavit and bind himself or herself to maintaining the sponsored alien at an income level at least 125 percent of the federal poverty line.
In 1990, amendments to the INA reorganized the employment-based preferences for permanent resident visas and significantly increased the number of aliens allowed to enter permanently to work.
First preference. First preference employees are priority workers who fall into one or more of three classes. The first class consists of aliens with extraordinary ability in the sciences, arts, education, business, or athletics. The second class of priority workers includes outstanding professors and researchers. The third class includes multinational executives and managers.
An enormous advantage of eligibility as a first preference priority worker is that the alien is not required to obtain a labor certification, which is granted by the U.S. Department of Labor only upon a showing that, after advertisement of the job, no qualified U.S. worker (U.S. citizen or resident alien) has applied for the position to be filled by the alien.
Second preference. The second preference for employment includes aliens who are members of the professions holding advance degrees or the equivalent or who have exceptional ability in the sciences, arts, or business.
Third preference. The third preference is divided into two categories: skilled workers or baccalaureate degree holders, and unskilled workers. The 1990 amendments increased substantially the overall number of aliens who may be admitted within the employment-based preferences but reduced significantly the number of aliens who may be admitted in the third preference unskilled labor category.
(For more information about first, second, and third preference employee categories and requirements, consult with an immigration law specialist.)
The Immigration Act of 1990 created a preference for aliens who invest in the United States. The fifth preference requires a $1 million or $500,000 investment in a commercial enterprise, depending on the area where the enterprise is located (i.e., rural areas or areas with a high unemployment rate require less investment). The investment may be made in a new enterprise, a restructured existing business, or a distressed business.
This preference also requires that the enterprise create full-time employment for at least ten U.S. citizens or lawfully admitted permanent residents, excluding the intending immigrant and his spouse and children. However, if the enterprise is distressed, this employment creation requirement is waived as long as the pre-investment level of employment is maintained.
Permanent residence is granted conditionally. After 21 months and before two years have expired from the grant of conditional status, the conditional immigrant must apply to remove the condition by demonstrating that the requirements of the status have been fulfilled. If the requirements have not been met, status will be revoked and the alien and his or her spouse and children will become subject to deportation. (Practice tip: timely compliance with the job creation requirement is generally necessary, whereas the INS may be inclined to grant time beyond two years to complete the contribution of funds to the enterprise.)
The INA provides for the granting of permanent residence to certain relatives of U.S. citizens and permanent residents.
Immediate Relatives. Aliens who are parents, spouses, or unmarried children of U.S. citizens are eligible to receive Visa Waivers
With the growth of international travel, the visa-issuing burden on U.S. consuls was becoming too onerous. To relieve this burden and encourage travel, Congress instituted the Visa Waiver Pilot Program (VWPP) in 1986, permitting entry to the United States for a period of 90 days without a nonimmigrant visa as B-2, pleasure visitor or B-1, business visitor. Restrictions were imposed to ensure that departure would be accomplished within 90 days, including a prohibition against extensions of status, adjustment of status, or changes of status. immigrant visas without delay. Parents are qualified as long as their U.S. citizen child is at least 21 years old. Children are qualified as long as they are under 21, unmarried, and otherwise meet the definition of "child" under the immigration laws. When a spouse of a U.S. citizen is granted permanent residence, the status is conditional for two years, unless the marriage occurred more than two years prior to the application for permanent residence. There are no limits on the number of above-listed immediate relatives who can qualify.
Family Preferences. Aliens with the following family relationships may also qualify for immigrant visas: unmarried sons and daughters of U.S. citizens; spouses, children, and unmarried sons and daughters of permanent residents; married sons and daughters of U.S. citizens; and brothers and sisters of adult U.S. citizens. These visas are subject to annual numerical limits, and currently involve a long waiting period between approval of the petition and actual issuance of the visa.
Adjustment of Status
The traditional route for an alien who is in the United States temporarily to acquire lawful permanent residence has been for the alien to depart the United States to obtain an immigrant visa from a U.S. consul abroad, or to remain in the United States and adjust to permanent residence by filing an application with the INS. For a number of years, aliens who entered without inspection were not permitted to adjust to permanent residence.
In 1994, Congress amended the adjustment of status provisions to eliminate the requirement that the adjustment applicant had to have been inspected and admitted or paroled when entering the United States temporarily. This relaxation was conditional, however, upon the applicant paying, in addition to the required application fee ($130 at this time), a fee of five times the application fee or $650. This fee will be increased to $1,000 on December 29, 1996, pursuant to IIRIRA.
Aliens who instead choose to return to their home country to obtain a visa may not re-enter the United States as permanent residents for 90 days after their departure. These provisions encourage an alien to weigh the cost of adjustment against the cost of travel to a home country and the cost of living there pending receipt of a visa from a U.S. consul.
The North American Free Trade Agreement (NAFTA) between Canada, Mexico, and the United States has been in effect since January 1, 1994. NAFTA provides for the temporary entry of nationals of one country into the other country for business purposes. There are four different categories of temporary services authorized (see an immigration law specialist for details on the requirements for compensation, visas, periods of admission and extensions, and other specifics):
- Category B-1 relates to business visitors whose services will be performed in one of the occupations listed in a schedule annexed to the agreement with no compensation emanating from the United States.
- Category E-1 traders and E-2 investors. For trade status, there must be a previously established, substantial level of trade principally between the United States and Canada or Mexico. For investor status, there must be substantial investment made or in the process of being made in the United States.
- Category L-1 intracompany transferee provides for the temporary transfer of an executive, manager, or employee with specialized knowledge of the employer's business to a parent, branch, subsidiary or affiliate in the United States.
- Category TN professionals are admitted to engage in business activities at a professional level for a U.S. employer. The list of qualifying occupations is changed from time to time by joint committees of NAFTA member countries.
The marriage of an alien to a citizen has long been recognized as a quick route to acquiring lawful permanent residence in the United States. Based on the perception that aliens were abusing this route by entering marriages primarily or solely to acquire immigration benefits, the law was made more restrictive in 1986 in several ways.
One way was to make the lawful resident status acquired through marriage conditional. The alien must apply to have the condition removed within the three-month period preceding the two-year anniversary of when the conditional permanent resident status was acquired. This enables the Immigration Service to test the bona fides of the marriage, usually by reviewing the joint representations of the spouses. If the condition is not removed, the alien is subject to deportation.
Another way was to provide that if the marriage occurred while the alien was the subject of exclusion or deportation proceedings, the alien could not adjust to permanent residence in the country, and when he or she left, he or she would be required to be out of the United States for two years from the date of the marriage.
Within a short period, some harsh consequences of these provisions were exposed. Inequities resulted if a U.S. citizen refused to assist an alien spouse who had been battered in the marriage, or if a U.S. citizen former spouse refused to attest to the bona fides of a marriage that resulted in divorce before conditions were removed, or if a former or estranged U.S. citizen spouse refused to acknowledge the bona fides of a marriage entered into with an alien in removal proceedings. In 1990, Congress made conciliatory exceptions to benefit an alien whose marriage was originally bona fide. Currently, aliens may present independent corroboration of the bona fides of a marriage to establish the right to removal of the condition to permanent residence.
Because of the perception that an increasing numbers of illegal aliens were being drawn to the United States by the prospect of jobs, the Immigration Reform and Control Act (IRCA) was enacted on November 6, 1986. Among its provisions was the need for an employer to participate in a process to hire only persons who were authorized to work here, for prospective employees to demonstrate that they are authorized to work here, and that the process would not be discriminatory.
Employers who do not observe IRCA are subject to civil fines or criminal prosecution. (For details on meeting IRCA requirements, consult with an immigration law specialist.) Any worker who does not establish work authorization must be terminated.
IIRIRA mandates a reduction in the number of documents that may be used for work verification under IRCA, and the development of pilot programs that will permit an employer to verify promptly the status of a prospective employee by a call to the Immigration Service. IIRIRA also provides for limited liability for employers who have made technical or paperwork violations when there has been a good faith attempt to comply with verification requirements.
Aliens who commit certain criminal acts may have difficulty being admitted to or remaining in the United States. Aliens may be denied entry to the United States who have admitted to or been convicted of crimes of moral turpitude, drug offenses, and/or have been convicted of multiple offenses. In very limited circumstances, waivers may be available at the discretion of the government.
Aliens may be deported from the United States for the same underlying criminal offenses that make them excludable, although different elements of proof may be required. Other offenses may result in deportation, including certain firearms violations and being a drug addict or drug abuser.
The term "aggravated felony" was introduced to immigration law in 1988 as an amendment to the INA. It included murder; illicit trafficking in controlled substances, firearms, or destructive devices; money laundering; crimes of violence for which at least five years of imprisonment is imposed; or any conspiracy to do any of the foregoing.
Substantial expansions of the provision were made in 1990 and 1994, and a further expansion of crimes and punishments is set forth in the IIRIRA. IIRIRA also created a new criminal offense that expanded previously existing document fraud provisions, and encompasses a person who knowingly presents a document that contains a false statement or that fails to contain any reasonable basis in law or fact.
A provision streamlining deportation procedures for criminal aliens convicted of aggravated felonies was included in a massive crime bill in 1994. If aliens are not lawful permanent residents and are not eligible for any relief from deportation under the INA, the Attorney General may order their deportation without pursuing the normal deportation procedures before an immigration judge. The provision also restricts the time in which the alien may seek judicial review.
Later that year, the Immigration and Nationality Technical Corrections Act of 1994 (INTCA) was enacted. INTCA deleted the requirement of establishing deportability by "clear, convincing and unequivocal evidence."
Lying Is Frowned Upon
Any alien who, by fraud or willfully misrepresenting a material fact, seeks or has sought to procure or has procured, a visa, or other documentation or entry into the United States or other benefit under the INA is inadmissible.
An amendment in 1986 made an oral misrepresentation by an alien when applying for admission into the United States an excludable ground concerning any future entry. Overcoming such a ground for inadmissibility requires the alien to obtain a waiver, granted in the sole discretion of INS, in addition to qualifying for a specific immigration status.