Finals Flashcards
B-1 visa
temporary visitor for business - always have to see whether 101(a)(15)(B) bars certain types of labor. always check if visa waiver pilot program can be used (217). Cant use if work is local employment for hire.
B-2 visa
Temporary visitor for pleasure
E-1 visa
Treaty trader - must work on trade that is international in scope and between the US and their home country
E-2 visa
treaty investor - must have invested substantial amount of capital towards project that will be critical to their making a living. E status depends on international agreement between US and foreign country (101a15E) allows spouse and children to be brought in as well.
F-1 visa
student headed for an academic institution
F-2 visa
Spouse and children of student
H-1B visa
for those coming temporarily to US to provide service to a specialty occupation: Post 1990-act can be admitted up to 3 years initially not to exceed 6. per 214i only a us entity can file. requires BA or higher. 65k limit per year. Employer attestation required but not certification.
H-2A visa
temporary workers in agriculture. employer must file with DoL. must comply with 218(a)(1). if labor cert is granted INS must the approve petition. employers must provide housing, meals, and workers comp and insurance.
H-2B visa
temporary workers in other fields. labor cert required, see 214(c). worker must be here temporarily to fill a temp job (year or less). section 214(g)(1)(B), (g)(2) limit to 66k per year.
L-1 visa
for those seeking to transfer from firm overseas to a branch here in US “intra-company transferees.” must be specialized or managerial and above per 101(a)(44), 101(a)(15)(L), 214(c)(2)(B). must have worked at firm for at least a year. blanket petition possible. 214(c)(2)(D).
O visa
101(a)(15)(O): person must have extraordinary abiity or international acclaim. no numerical limit.
P-1,2,3
101(a)(15)(P): applies to athletes and entertainers. No numerical limit
M visa
for those seeking to come here temporarily for non-academic, more vocationally based training.
A visa
for diplomats, ambassadors, their families
C visa
for those going in transit
D visa
for crewmembers of vessels - non renewable for 29 days
G visa
for members of foreign governments who wish to come and be part of an international organization (like world bank) and their families
J visa
for individuals approved to participate in work and study-based exchange visitor programs.
K visa
fiance visa: must get married within 90 days, can seek adjustment of status after marriage.
Q visa
cultural exchange visas - not to exceed 15 months
R visa
for religious workers - not to exceed five years
T visa
for trafficked individuals
U visa
for abused victims of certain crimes
INA provision governing assylum
208
Requirement for getting assylum
must be a refugee, under 101(a)(42)(A) which requires actual persecution or a well founded fear of persecution on the basis of 1 of 5 protected categories.
Refugee definition under US law and USCIS
a person who is located outside of the US, is of special humanitarian concern to the US, demonstrates that they were persecuted or fear persecution due to race, religion, nationality, political opinion, or membership in a particular social group, is not firmly resettled, and is admissible to the US. Does not include anyone who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of 1 of the 5 categories.
Per USCIS an assylee is
an alien in the United States or at a port of entry who is found to be unable or unwilling to return to his or her country of nationality, or to seek the protection of that country because of persecution or a well founded fear of persecution. Persecution or the fear thereof must be based on the aliens race, religion, nationality, membership in a particular social group, or political opinion. for persons with no nationality, the country of nationality is considered to be the country in which the alien last habitually resided. Asylees are eligible to adjust to lawful permanent resident status after one year of continuous presence in the US. limited to 10k per year.
Standard of review for asylum
if asylum officer grants then it is unapealabel. if its denied and appealed or IJ grants then standard is well-founded fear.
Witholding INA 241(b)(3)
one need not be a refugee to be granted withholding. if there is a probability that persecution will occur, on one of the 5 categories, then withholding must be granted. Standard of review is clear probability.
CAT
no need to fit in one of the five groups or be a refugee to qualify. Standard of review is more likely than not.
Jus Soli citizenship
the right of land. nationality confered based on birth within the territory. governed by 301 c-e, g-h; 308(2), (4); 309.
INA 301 jus soli citizens are
- those born in US and subject to its jurisdiction
- those born ex us to citizen parents, one of which had a residence in US prior to persons birth
- a person born outside the US to one citizen parent if that parent was physically present in the us for a continuous period of one year prior to the persons birth and if the other parent is a non citizen national.
- a person born in a us territory to a citizen parent who was present in US for a continuous year prior to birth.
- a person born outside the us to a citizen and an alien if the citizen parent was present in the US for a total of five years two after 14.
308: nationals but not citizens of the US at birth
a person born ex US to national parents is a national at birth. A person born to 1A and 1N if the N was present for 7 of a continuous period of 10 years and wasn’t out of US for more than one and 5 of the years were after 14
309: children born out of wedlock
makes the requirements from 301/308 apply as long as there is clear and convincing evidence of blood relationship of father, financial support from father, acknowledgment of child under oath, paternity established by competent court, before the child turns 18.
Jus Sanguinis
the right of blood, nationality is conferred based on descent irrespective of place of birth.
Naturalization statutes
b. 334(b), 316a, 312a2
312
english language and civics requirements for naturalization
316: requirements of naturalization
- continuous residence, following being LPR for five years prior to application.
- physical presence for periods totalling at least half that time, during the five years prior to applying.
- good moral character: a finding that a person isn’t deportable is not the same as finding that they have this. consideration not limited to period considered for physical presence and residence requirements.
- attachment to the principles of the constitution
334
requires people be 18 to naturalize and file a sworn statemnt
337:
oath of renunciation and allegiance
general requirements for naturalization
- residence and physical presence
- moral character
- civics knowledge
- english language knowledge
- oath
- attachment
Denaturalization under 340:
refers to the revocation of a natrualized aliens citizenship based on fraud or illegality in the original naturalization
chaunt v. uS
mistatment in procuring naturalization is material if its disclosure would have justified denial of C or led to facts justifying such denial.
Kungys case
To determine if a mistatment in natrualization was material look to if there was a natural tendency to mislead. If there was then Denaturalization can continue.
Puerta case
prevails on materiality despite lying about having used other names in the past.
Trilogy cases
- pere v. brownwell: can denaturalize a jus soli citizen who votes in and lives in Mexico
- trop v. dulles: jus soli deserter applies for a new passport and is denied. the court says that citizenship cant be revoked here.
- nishikawa v. dulles: a jus soli citizen was conscripted into the Japanese army and then denied a passport. court doesn’t allow denaturalization.
standard of proof for denaturalization
Terrazas case: must show an expatriating act by a preponderance of the evidence and must show intent t relinquish by a preponderance of the evidence
Maslejak: there must be a causal connection between a lie during the process and why the lie happened. denaturalization occurs when an illegal act played some role in Naturalization. misstatements alone arent enough. need strong causality between illegal acts and procurement of citizenship.
18 USC 1425 and INA 340e
A conviction for illegaly getting citizenship cancels naturalization but per maslenjak if the illegal act is a falsity or misrepresentation the government must show that the fact lied about contributed to getting naturalization. This requires showing that an official who knew the truth would have denied N or would have been prompted to undertake further investigation and that that investigation would have predictably disclosed some legal disqualification.
Ex-patriation: INA 349
the government must prove that an individual committed a voluntary expatriation act with the intent to relinquish citizenship.
Sessions v. Morales-Santana:
this is a challenge to the difference in timing for the residence requirement for a father v. a mother. Court adopts a somewhat restrictive approach and while validating the equal protection challenge holds that it is not the court’s place to grant citizenship so it prospectively strikes the lower requirement for mothers.
Schniederman v. U.S.
deals with meaning of attachment to the constitution. Requires clear and convincing evidence from the government to be able to revoke citizenship.
Maslenjak v. US
the gov has to establish that an illegal act by the defendant played some role in their acquisition of citizenship. when the act is a false statement they must have lied about facts that would have mattered to an immigration official because they would have justified denying naturalization or would predictably led to other facts justifying that result.
Two things gov has to prove for denaturalization by misrepresentation
- that the misrepresented fact was sufficently related to a naturalization criterion that it would have prompted reasonable officials seeking only evidence concerning citizenship qualifications to undertake further investigation.
- if one is met the government must then show that an investigation would have predictably disclosed some legal disqualification.
Vance v. Terrazas
the party claiming loss of citizenship must prove it by a preponderance of the evidence. if renunciation through taking oath of renunciation to other country then voluntariness is rebuttably presumed. this presumption is not applicable to intent to relinquish and that must still be proven by the government.
Applicabillity of constitutional rights
depnds on whether the person entered legally and stayed illegally or entered illegally and is an EWI. if the former then they get regular due process and constitutional rights. if the later then they get far fewer rights.
Fong Yue Ting
Court doesnt consider deportation to be criminal punishment which means that due process rights arent implicated.
wong wing
here the fact that aliens were sentenced to hard labor for 60 days prior to deportation pushes them into the area where due process rights are required. that is too much like punishment.
chevron deference
ask: has congress spoken to the precise question at issue, if intent is clear and unambiguous then do that.
if statute is silent or ambiguous then the question is whether the agency answer is based on permissible construction of the statute. defer to the agency interpretation unless arbitrary, capricious, or manifestly contrary to statute.
Mead case: chevron deference only if
1.congress has delegated authority to agency generally to make rules carrying the force of law and
2. agency interpretation is promulgated in the exercise of that authority.
3. if part two isn’t met then skidmore v. swift deference: look to agency care consistency formality and relative expertise as well as to persuasiveness of its position.
4 main categories of immigrants:
- family-sponsored: highest number of visas allotted–no limit for immediate family admissions
- employment based: caped at 140k annually and divided into five preference categories. families of immigrants count towards the cap if they use the follow to join provision
- diversity lottery: about 50k are chosen
- humanitarian admissions (asylum and refugee): number admitted varies widely.
How immigrant visa process works
visa petition is filed by a U.S. resident (the petitioner) on behalf of a noncitizen outside the U.S. (the beneficiary)
Immediate relative: 201(b)(2)(A)
- children (definition in the statute is important), spouses (conditional), parents of U.S. citizens. A noncitizen cannot be a sponsor for this category.
- per 101(b)(1): a child is someone under 21 and unmarried.
- this category has no quota.
Family relative first preference: 203(a)(1)
unmarried sons and daughters of citizens (this is for people over 21 and therefore not qualifying as children under 201(b)(2)(A))
Family relative second preference: 203(a)(2)
spouses and unmarried sons and daughters of permanent resident aliens. (the immediate relative equivalent for LPRs)
Family relative third preference: 203(a)(3)
married sons and daughters of U.S. citizens (lower preference compared to first preference because now there are people who can follow to join)
Family relative fourth preference: 203(a)(4)
brothers and sisters of citizens.
Employment-based first preference: 203(b)(1)
Priority workers (options A-C)
A. extraordinary ability demonstrated by sustained national or international acclaim whose achievements have been recognized through sustained documentation.
B. outstanding professors and researchers: these are internationally recognized, have three years of teaching experience in the field, and are entering for tenure track or comparable position in a private company.
C. certain multinational executives and managers: need at least 1yr with the company.
