June 2017

What every lawyer needs to know about immigration law

Given the many ways in which immigration law can affect a single individual as well as a large corporation, most lawyers will encounter a client who needs immigration law advice during their career. It’s important that lawyers not only understand how to ethically resolve immigration issues for clients, but also know when to involve an expert for further assistance. 

In the ABA webinar, “What Every Lawyer Needs to Know about Immigration Law,” lawyer Anna Williams Shavers, the Cline Williams Professor of Citizenship Law at the University of Nebraska, recommends reading the book of the same name, which has more detailed information and is available at Shop ABA.

Immigration law is vast and complex, and it’s important for lawyers to have a basic understanding of its key issues, including how much power the federal government has over immigration laws and policies.

“The source and scope of immigration power has been the subject of many cases that have been before the Supreme Court,” Shavers said, adding that most government powers related to immigration are enumerated in Article 1 of the Constitution and form the basis for how Congress can take action. All three branches of government have intimate connections to immigration: Congress’ authority comes through the power of the United States’ sovereignty; the executive branch has powers over immigration with respect to foreign affairs; and the judiciary decides whether or not the other two branches are exercising their powers appropriately.

The primary federal departments involved with immigration matters are:

· Department of Homeland Security, created in 2003, which took over many of the functions previously handled by the Department of Justice.

  • Department of Justice, which is related to immigration court matters.
  • State Department deals with noncitizens entering the U.S., working hand-in-hand with DHS.
  • Department of Labor deals with people coming into the United States based on a work category.

In news stories, we hear most about DHS agencies when it comes to immigration: the U.S. Citizenship and Immigration Services (USCIS), U.S. Immigration and Customs Enforcement (ICE), and the Customs and Border Protection (CBP), which is in charge of points of entry into the country. The USCIS website has helpful information on immigration regulations and laws. The DOJ website, Justice.gov, features immigration case reviews under the section called Executive Office for Immigration Review, which can also be helpful for lawyers, Shavers said.

Immigration law labels individuals as:

  • Citizens (by birth) or nationals (by status)
  • Noncitizens, also known as aliens
  • Nonimmigrants, people who want to come to this country for a temporary purpose, such as to work, study, visit or receive medical care – before returning to their home country
  • Immigrants, people who are sponsored for entry by a family member or an employer
  • Refugees and asylees

Refugees are processed while still outside the country, while those seeking asylum are already in the United States, Shavers said, adding that anyone in the country without proper status is subject to deportation. Those seeing asylum “must establish that they have a well-founded fear (about staying in their homeland).”

If you’re not a U.S. citizen, you need one of two immigration documents to enter the United States: passports or visas. There also are special programs for people to come in under a visa waiver program.

Immigration law history

Americans encouraged relatively free and open immigration during the 18th and early 19th centuries, and rarely questioned that policy until the late 1800s.

“The immigration law story starts in the 19th century with the Plenary Power Doctrine,” which holds that the political branches – legislative and executive – have the sole power to regulate all aspects of immigration, said Jill E. Family, Commonwealth professor of law and government and director of the Law and Government Institute at Widener University Commonwealth Law School in Harrisburg, Pa.

The Chinese Exclusion Case of 1889 was the first law to impose significant limits, forbidding immigration from China.

Historically, a person “knocking on the door” to enter the U.S. is “on much shakier ground than someone who has made it to the U.S., even if it was without permission,” Family said. She added that immigration is civil law, not criminal law, and does not afford many protections afforded those accused of criminal law, such as the right to government-funded counsel.

Challenging detention is not a simple prospect, as someone can be detained whether they’re seeking to enter the United States or are already in the interior but awaiting an immigration hearing. A person may even be detained after they’ve been ordered removed while they await actual removal. “The Supreme Court has grappled with detention guidelines in recent years,” Family said.

Employment-based immigration

“In the United States, in order to work, you must be authorized to do so,” said lawyer Kate Kalmykovk of Greenberg Traurig in New York and New Jersey.  “All U.S. citizens or nationals are authorized to work,” as are green card holders and individuals who have visas with the appropriate status.

The different types of visas – depending on immigration status – are like “alphabet soup,” she said. 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 different types of employment visas include:

  • EB-1 – Aliens of extraordinary ability, outstanding researchers and professors, multinational managers or executives
  • EB-2 – National interest waiver, exceptional ability and advanced degree professionals
  • EB-3 – Professionals with bachelor’s degree, skilled workers with 2 years of job experience, or unskilled workers
  • EB-4 – Special immigrants (religious workers)
  • EB-5 – Investment green cards

The most common visa is H-1B, which requires the petitioner to have a job offer, with a prevailing wage in that geographic area, possess a bachelor’s degree or higher or work as seasonal help in a specialty occupation.

Recent travel bans

President Donald Trump’s controversial immigration executive orders, signed in January, resulted in “lots of confusion” initially on whether it applied to permanent residents or dual nationals, said Jennifer Hermansky of Greenberg Traurig's Philadelphia office.

The first order mandates the DHS secretary to ensure the detention of undocumented foreign nationals apprehended for violating immigration law pending the outcome of their removal proceedings. The second order addresses unlawful immigration’s potential effects on U.S. national security and public safety. It prioritizes removing aliens who have been convicted of or charged with criminal offenses. “Unfortunately, we’re seeing this applied more broadly than they originally said,” Hermansky said.

The second order banned entry to the United States for nationals of seven countries: Iran, Iraq, Sudan, Somalia, Yemen, Libya and Syria, whether with nonimmigrant (temporary) or immigrant (permanent) visas for 90 days. “When this came out I’m sure everybody saw there was lots of confusion about how this would be applied,” Hermansky said. “This was a huge issue for people and became the subject of litigation.”

It also called for:

  • A cap on refugee resettlement numbers at 50,000 for fiscal year 2017 (the U.S. admitted 85,000 in 2016).
  • Suspended entry of all refugees for a period of 120 days while ‘extreme vetting’ procedures are developed.
  • Permanently bar the entry to the United States of Syrian refugees, and put in place extreme vetting procedures.
  • Permits states and local jurisdictions to provide input regarding locations for resettlement of refugees within the United States.

The new round of orders, signed on March 6, revokes the first round and calls for a ban on immigration from six countries: Iran, Libya, Somalia, Sudan, Syria and Yemen – excluding Iraq from the original list. It also stipulated:

  • Lawful permanent residents are not subject to the travel ban, and dual nationals may use another passport to enter the United States.
  • Waivers may be granted to individuals applying for a visa who are subject to the travel ban if:   
    • denying entry during this period would cause undue hardship
    • the entry would not pose a threat to national security
    • it would be in the national interest of the United States
  • Entry under the U.S. Refugee Admission Program will be halted for 120 days from March 16, 2017.
  • The blanket halt on Syrian refugees is removed.
  • The Visa Interview Waiver Program is suspended until further guidance from the State Department.
  • Those who are in the United States will not have their visas revoked.

Judges immediately halted the travel ban, which the government appealed, and as of late May appellate courts in Washington state and Virginia had not yet issued their decisions on it. At any rate, it is likely that the travel ban cases will reach the Supreme Court.

“What Every Lawyer Needs to Know About Immigration Law” is sponsored by the ABA Center for Professional Development, Center For Professional Responsibility, Criminal Justice Section, Division for Public Services, Government and Public Sector Lawyers Division, Commission on Hispanic Legal Rights and Responsibilities, Commission on Immigration, Standing Committee on Pro Bono and Public Service, Section of Administrative Law and Regulatory Practice, Section of Family Law, Section of Legal Education and Admissions to the Bar, Working Group on Unaccompanied Minor Immigrants and Young Lawyers Division.