To say that immigration law is vast and complex is an understatement. As with tax law, most solos and small firms don’t dabble in the field. However, practitioners frequently stumble into immigration issues at some point, whether in a criminal case representing undocumented aliens, in a divorce case representing an abused spouse, or in an employment case representing an employer who has unwittingly hired a student who doesn’t have permission to work. It is, therefore, important to have a basic understanding of immigration law and know the key issues to look for when dealing with foreign national clients.
Sources for Immigration Law
The law is found in the Immigration and Nationality Act (INA) as well as Section 8 of the United States Code. Immigration law is also made up of cables, memos, and regulations, as well as precedent decisions from the Board of Immigration Appeals (BIA) and cases litigated in the federal courts. Almost all of these sources are available free online (see "Resources" at the end of this article).
If you have a client who isn’t a U.S. citizen, the first question to ask is, “What is your immigration status?” Status is not the same as visa type. A visa is simply the document that gives you permission to be in the United States. It does not confer status. When foreign nationals enter the United States, they are given a document called the I-94. This document contains the status “expiration date.” Once this date has passed, the person is no longer in status, regardless of the length of time left on the visa. In the context of temporary employment visas, foreign nationals will be out of status once they stop working for the employer who sponsored them, regardless of how much time is left on the visa or the date on the I-94.
Clients frequently don’t understand the distinction between visas and status until it is too late. They’ll tell you they have a work visa that’s good for two years or have a tourist visa that is good for ten years. Having a visa that’s good for ten years does not mean you are in status and can stay in the United States for ten years. You must leave by the date on the I-94 (usually six months from the date of admission) or risk bars to readmission. Having a two-year temporary work visa means you are authorized to stay in the country for two years as long as you work for that same employer. If you leave that job, you’re out of status and, again, risk bars to readmission.
Bars to Readmission
If the date on your client’s I-94 has expired or if the visa is expired, it’s time to have your client call an immigration attorney. There are serious consequences to overstaying, including bars to readmission. Foreign nationals who trigger a bar cannot apply to come back to the United States until the time period for the bar has passed or unless they qualify for and file a waiver of that bar. The general rule is that a person who is unlawfully present in the United States for more than 180 days and less than one year and who voluntarily departs the United States before the commencement of removal proceedings is barred from readmission for three years from the date of departure. If you have a client with a ten-year visa but whose I-94 has an expiration date that was 120 days ago, you should tell your client they should depart the country within 58 days in order for that bar not to be triggered. If your client overstays for more than one year, there is a ten-year bar to readmission. The bars are triggered by leaving the country.
Visa types are denoted by letter, immigration form by number. Although there are a lot of letters, there are just two types of visas: immigrant and non-immigrant.
Immigrant visas. The immigrant visa, or “green card,” gives an alien status as a lawful permanent resident (LPR). An LPR is someone who has been given authorization to work and live in the United States permanently (unless the government decides the LPR is no longer entitled to that status, as discussed below in the section on representing LPRs and undocumented persons in criminal cases). There are five ways to become an LPR, but most common are family- or work-based immigrant visas.
Family-based immigrant visas. The form that is filed for family-based visas is the I-130. This is used only to establish the relationship between family members. Once the relationship has been established and the petition is approved, the beneficiary has to file an application for adjustment of status, form I-485. This is the form that actually gives someone LPR status. There are limitations on the number of visas given out to family members for all groups except those considered immediate family of U.S. citizens: spouses, unmarried children (under 21 years old), orphans adopted abroad or brought to the United States for adoption, and parents. In order for a child to sponsor a parent, the child must be at least 21 years old.
The other visa categories have numerical limitations, as well as preference categories that determine how long it takes to actually get a visa number. The U.S. Department of State website gives a list of the preference categories along with how many visas of each type will be given out in that year. Neither a U.S. citizen nor an LPR can sponsor a grandparent, aunt, uncle, in-law, or cousin.
Work-based immigrant visas. The other most common way to get a green card is through employment. Similar to the family-based categories, employment-based green cards also have preferences. The form filed for an employment-based visa is the I-140. In order to get an employment-based green card, most employers must apply for a labor certification from the U.S. Department of Labor. There are five categories of preference for employment-based green cards, and these can also be found on the U.S. Department of State website.
Non-immigrant visas. A non-immigrant visa is a temporary visa that allows a person to come to the United States for a limited time and for a specific purpose. The following are the most common non-immigrant visa categories:
- B-1: Business visitor
- B-2: Pleasure tourist
- E-1: Treaty trader
- E-2: Treaty investor
- F: Student
- H: Temporary worker
- J: Exchange visitor
- K: Spouse or fiancé of U.S. citizen
- L: Intracompany transferee
- O: Worker with extraordinary abilities
- P: Athlete or entertainer
- R: Religious worker
- S: Witness or informant
- T: Victim of trafficking in persons
- TN: Trade visa for Canadian or Mexican
- TPS: Temporary protected status
- U: Victim of certain crimes
The type of visa granted will be visible on the front of the visa document.
Common visa pitfalls. I was at the grocery store the other day when I ran into a former co-worker. I asked about her kids and child care. She said she found an au pair who was changing status to a student visa and that she was going to sponsor the au pair, who would provide care for her children. I asked what she meant by “sponsor,” and she said she was going to fill out the financial affidavit for the au pair’s student visa. I told her that the student couldn’t work for her without prior permission, even if there was no money involved. She had no idea this was the case. As mentioned above, people with H visas will change jobs not realizing they are in status only as long as they work for the employer who sponsored their visa. Foreign nationals who come to the United States to work for a resort in Florida cannot then go work at a hotel in North Carolina on that same visa, despite the fact that the dates they are here coincide with both the visa dates and their I-94 dates. In situations like this, it is important to contact an immigration lawyer who can help.
Criminal Grounds of Inadmissibility and Removability
In the old days, we called this process “deportation.” Now, although people are still deported, they are first deemed either inadmissible or removable. There are many grounds, criminal and non-criminal, that make someone inadmissible or removable, but the most frequent is criminal conviction. The criminal grounds for inadmissibility and removability are different, and it is important to know the distinctions when representing foreign nationals in criminal matters. More importantly, criminal attorneys must understand that LPRs can be denied admission or removed if they are convicted of certain crimes. Having a green card does not save your client from this terrible consequence. What it might do is provide a basis for relief once the client is in immigration proceedings. The recent Supreme Court ruling in Padilla v. Kentucky makes it clear that lack of or incorrect immigration advice to a criminal client can be the basis for a Sixth Amendment ineffective assistance of counsel claim. It is, therefore, advisable to consult an immigration attorney at the preliminary stages of the criminal matter so you aren’t stuck behind the proverbial eight ball when it comes time to plead or take the matter to trial. An immigration attorney could tell you if there are waivers available allowing your client to apply for readmission into the if convicted of a crime that makes him or her inadmissible or removable. The immigration attorney also could advise you if there is a case to be made for cancellation of removal after a conviction.
Inadmissibility. A foreign national applies for admission to the United States every time he or she comes to a port of entry. And every time, an immigration official determines admissibility, regardless of whether there is a visa. Applicants are inadmissible on criminal grounds if they have been convicted of a crime involving moral turpitude (CIMT), crimes involving controlled substances, prostitution or other vices, human trafficking, money laundering, or trafficking in controlled substances, or if they have multiple criminal convictions. All these can be found in INA Section 212, but it’s important to touch on the two most common grounds: CIMTs and controlled substance offenses.
Crimes involving moral turpitude. A CIMT is defined as a crime that “refers generally to conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. . . . Moral turpitude has been defined as an act which is per se morally reprehensible and intrinsically wrong. . .” Matter of , 20 I&N Dec. 867, 868 (BIA 1994). (See the website of the Immigrant Defense Project, and the website of the Office of Defender Services, for a listing of crimes that are and are not considered CIMTs—the definition given by the BIA leaves the issue open to debate.)
There are two exceptions to this ground of inadmissibility. The first is the petty offense exception, which states that a conviction (or admission of facts) is a petty offense if the maximum penalty possible did not exceed one year and the term of imprisonment was not in excess of six months. If a client asks whether a certain crime is a CIMT, it is imperative that you look at the actual criminal statute in your state and determine what the maximum sentence could be. This is true whether your client is undocumented or holds a green card. The law does not discriminate between the two.
The second exception is when the person committed only one crime of moral turpitude, the crime was committed when the person was under 18, and the crime was committed more than five years before the date of admission. This gives some leeway to youthful indiscretions. It is still important to consult an immigration attorney in this scenario just to be sure the exception would apply.
Crimes involving controlled substances. With the war against drugs still raging, this is an incredibly common ground of inadmissibility. People who have been convicted of or who admit to violating any federal, state, or foreign law relating to controlled substances as defined in Section 102 of the Controlled Substances Act are inadmissible. This includes marijuana possession. There is a waiver available for people who have been convicted of a single offense of simple possession of marijuana of 30 grams or less, but this waiver is available only in certain circumstances. What seems like a fairly innocuous crime could be disastrous for your green card–holding client. Again, it is important that you contact an immigration attorney to find out if this waiver is available before your client is convicted.
Removability. Criminal grounds that would lead to removal include conviction for a CIMT or for an aggravated felony. An aggravated felony is defined in INA Section 101a (43) and includes crimes such as rape, murder, and sexual abuse of a minor but can also be a single conviction for shoplifting. The sidebar on page 49 lists websites that can guide you regarding these matters, but it is best to contact an immigration attorney—a conviction for a CIMT or an aggravated felony can have tragic consequences.
So now that you know a bit about immigration law, when will you need it? The truth is you might never use it. Your best bet if you don’t know anything about immigration is to consult an immigration attorney. However, that attorney will want some basic information from you, such as the person’s status and type of visa. I hope that this article will give you the tools to provide rudimentary immigration information and also will let you know what questions to ask and when it’s time to refer the case to an immigration attorney.
- American Immigration Lawyers Association: If your practice involves any immigration work at all, membership in this group is worthwhile.
- Board of Immigration Appeals: This website from the U.S. Department of Justice contains precedent decisions as well as a practice manual.
- Bureau of Consular Affairs: Find visa types, preference categories, processing times, numerical limits, and the Foreign Affairs Manual on this U.S. Department of State website.
- Immigrant Defense Project: Formerly an initiative of the New York State Defender’s Association, the IDP defends the legal, constitutional, and human rights of immigrants facing criminal charges; the website is an amazing resource with practical tips and guidance.
- Immigrant Legal Resource Center: The ILRC website offers policy updates, newsletters on recent developments, and practical assistance on immigration issues.
- Law Offices of Norton Tooby: The immigration law resources on this firm’s website are available for free.
- National Immigration Project: The website for this project of the National Lawyers Guild has a wealth of information and resources.
- Office of Defender Services: This website contains excellent practical advice on defending non-citizens in criminal cases and has a very useful paper on post-Padilla criminal practice.
- U.S. Citizenship and Immigration Services: Access all petitions and applications for free, as well as the text of the Immigration and Nationality Act (INA).
- U.S. Code: Access the U.S. Code on this page of the Government Printing Office website.
- U.S. Immigration and Customs Enforcement: The website of the investigative agency for the U.S. Department of Homeland Security contains the Online Detainee Locator System, which allows you to search for a client detained by ICE, as well as the Freedom of Information Act Reading Room.