Admissibility : Immigration Law

August 16, 2020

Admissibility

Applied first by consular officer considering visa issuance, but also by inspector at port of entry

Individual who seeks to become an LPR through adjustment of status must be “admissible”

1. Does she qualify for an admissions category?

IMMIGRANT—203 (mostly)
1. Family-sponsored
  1. Immediate relatives of citizens—INA § 201(b)(2)(A)
    1. Children (def. INA § 101(b)(1))
      1. Must be under 21 and unmarried
        Child Status Protection Act
      2. Includes stepchildren and legitimated children, if qualifying relationship established before child reached 18, and adopted children if before 16
    2. Spouses
    3. Parents
      1. Sponsoring citizen must be 21+
  2. Unmarried sons and daughters of citizens—INA § 203(a)(1)
    1. Children 21+
  3. Spouses and unmarried sons and daughters of LPRs—INA § 203(a)(2)
    1. (A)—spouses or children
      1. a.k.a unmarried children under 21
    2. (B)—unmarried sons or daughters not children
  4. Married sons and daughters of citizens—INA § 203(a)(3)
    1. Includes derivative beneficiaries—spouse, children “following to join”
  5. Brothers and sisters of citizens—INA § 203(a)(4)
    1. Sponsoring citizen must be 21+
2. Employment-based
  1. Priority workers—INA § 203(b)(1)
    1. Aliens with extraordinary ability—INA § 203(b)(1)(A)
      1. In the sciences, arts, education, business, or athletics
      2. Sustained national or international acclaim and achievements recognized in the field through extensive documentation
      3. Seeks to enter U.S. to continue work in the area of extraordinary ability; and
      4. Alien’s entry into the U.S. will substantially benefit the U.S.
      5. (No sponsor needed)
    2. Outstanding professors and researchers—INA § 203(b)(1)(B)
      1. Recognized internationally as outstanding in a specific academic area;
      2. 3+ yrs experience teaching or research in the academic area; and
      3. Seeks to enter for teaching or research job in university or private employer that meets certain reqs
    3. Certain multinational executives and managers—INA § 203(b)(1)(C)
      1. In 3 yrs before app has been employed for 1+ yr by employer and seeks to enter U.S. to continue work for same employer in a capacity that is managerial or executive
      2. Subject to 101(a)(44) definitions
  2. Professionals holding advanced degrees or exceptional ability—INA § 203(b)(2)
    1. Holding advanced degrees or their equivalent; or
    2. Because of exceptional ability in sciences, arts, or business, will substantially benefit the national economy
    3. Must have sponsor with job offer
      1. A.G. can waive job offer req for certain persons, in national interest
  3. Skilled workers, professionals, and other workers—INA § 203(b)(3)
    1. Skilled workers
      1. Capable of performing skilled labor (requiring 2+ yrs training or experience);
      2. Not temporary or seasonal; and
      3. No available qualified workers in the U.S.
    2. Professionals
      1. Baccalaureate degree and members of the profession
    3. Unskilled workers
      1. Not temporary or seasonal; and
      2. No available qualified workers in the U.S.
  4. Certain special immigrants—INA § 203(b)(4)
    1. Def. INA § 101(a)(27)(C)-(M)
    2. Includes religious workers, former long-time employees of the U.S. gov’t or int’l orgs, misc.
  5. Employment creation—INA § 203(b)(5)
    1. Create a minimum of 10 jobs in U.S. economy
    2. Baseline investment of $1 million
3. Diversity lottery—INA § 203(c)
  1. High school diploma or its equivalent; or
  2. Within 5 yrs before app, 2+ yrs training or experience
  3. Eligible countries
    1. Favors applicants from Europe and Africa
    2. Nationals of approx. 15 countries that already send high volume of immigrants aren’t eligible
4. Refugees/asylum
  1. 207 and 101(a)(42)

NONIMMIGRANT
1. Student visas
  1. F visa; J visa; M visa
2. Business and entrepreneurial nonimmigrants
  1. B visa
    1. Noncitizens visiting the U.S. temporarily for business
    2. Range of business activities
      1. Individual entrepreneurs and reps of foreign corporations seeking to
        Find U.S. customers
        Investigate potential investments
        Look for locations to establish a U.S. subsidiary
  2. H visa—temporary workers
    1. H-2A—temporary agricultural workers
    2. H-2B—temporary non-agricultural workers
    3. H-1B—temporary workers in a specialty occupation
  3. O and P visas—athletes and artists
  4. L visa
    1. Intra-company transferees
    2. Must be managerial, executive, or involving specialized knowledge
  5. E visa
    1. E-1 treaty trader and E-2 treaty investor
    2. Must be int’l agreement btw U.S. and noncitizen’s country
3. Law-enforcement-related or victim visas
  1. T visa—victims of trafficking in persons
  2. U visa—abuse resulting from list of crimes
4. V visa (blurring of immigrant-nonimmigrant line)
  1. V visa for FB2 beneficiaries waiting awhile
  2. K-3 and K-4 visas for spouses

OTHER TEMPORARY VISIT ALLOWANCES
1. Border crossing cards (BCCs)
  1. To accommodate Mexican nationals living in the border area—enter at Mexican border, remain w/in 25 miles of the border for 72 hours or less

2. Can she prove—

If coming in as a spouse—
1. Can they pass the “sham marriage” test?
2. Noncitizen petitioner who gained LPR status on basis of earlier marriage can’t petition for new spouse under 2^nd preference unless—204(a)(2)(A)
  1. Five years have passed since petitioner attained resident status
  2. Establishes to A.G. by clear and convincing evidence that prior marriage wasn’t a sham
If coming in as a nonimmigrant (categories p.23)—
1. Can she prove she truly has a home in a foreign country?

3. Is she inadmissible?

INADMISSIBILITY GROUNDS—212(a)
1. Has she committed a crime?
  1. Certain crimes?
    1. Did it involve moral turpitude?—212(a)(2)(A)(i)(I)
      1. Goldeshtein standard—must be crime of moral turpitude categorically—necessarily, by definition involve moral turpitude (evil intent is essential nature of crime) (deportability case)
    2. Was it a violation of any law relating to controlled substances? (any state, U.S., or other country)—212(a)(2)(A)(i)(II)
    3. Was she over 18 when committed and was 5+ years ago; or, was the maximum penalty possible for the crime less than imprisonment of 1 yr and was she not sentenced to a term of 6+ months?—212(a)(2)(A)(ii)
  2. Multiple crimes?
    1. Has she been convicted of 2+; for which aggregate sentences were 5+ years?
  3. More crimes—212(a)
2. Has she violated immigration laws?—212(a)(6)
  1. Currently present w/o being admitted
  2. Misrepresentation—
    1. By fraud or willfully misrepresenting a material fact sought to procure visa, other documentation, or admission into the U.S. or other benefit under the Act
      1. Cervantes-Gonzales
  3. Did she smuggle others in?
  4. Abuse a student visa?
3. Has she participated in terrorism?—212(a)(3)
4. Other misc
  1. Is she in good health?— 212(a)(1)
  2. Is she likely to become a public charge?—212(a)(4)
    1. Can she overcome that with additional information?—Kohama

IS SHE SUBJECT TO A BAR?—212(a)(9)
1. Unlawfully present
  1. Was she unlawfully present?
    1. Did she violate terms of status?
      1. (Not “unlawfully present” if admission period hasn’t ended, even if violated e.g. by working for different employer)
  2. Was she unlawfully present for single period between 180 days and 1 year, and then voluntarily departed?—212(a)(9)(B) (inadmissible for 3 years)
  3. Was she unlawfully present for aggregate period of 1+ year?
    1. Lifetime bar, but waivable after 10 years
2. Ordered removed
  1. Was she ordered removed?
    1. Five year bar—212(a)(9)(A)(i)
  2. Was she ordered removed, and then entered or attempted to enter, w/o being admitted?
    1. Lifetime bar, but waivable after 10 years
  3. Was she ordered removed more than once?
    1. 20 year bar—212(a)(9)(A)(i)
3. Is she an aggravated felon?
  1. Lifetime bar—212(a)(9)(A)(i) and 212(h)—last paragraph
4. Counting time
  1. Time while noncitizen is in removal proceedings generally counts as unlawful presence

4. Can she adjust status?—245 (p.33-34)

(Currently present nonimmigrant seeking to adjust to LPR status)

Is she here in a category that allows dual intent doctrine?—p.23
Is an immigrant visa in her desired category immediately available?
Is she otherwise admissible?
1. Has she been inspected and admitted or paroled?—245(a)
2. Other disqualifications—245(c)
  1. Is she currently in unlawful immigration status?
    1. 212(a)(9)
    2. p.25-26
    3. i.e. Noncitizens who worked w/o authorization before filing
    4. Noncitizens who qualify under one of the EB categories but aren’t in a “lawful nonimmigrant status”
      1. i.e. Parolees and others allowed to be present w/o nonimmigrant status
Is the A.G. likely to grant her that discretion? Will consider—
1. Family ties in the U.S.
2. Hardship in traveling abroad
3. Length of residence in the U.S.
4. Preconceived intent to remain
5. Any repeated violations of immigration laws

5. Is there a possibility of relief?

WAIVERS
1. For nonimmigrants—general discretionary waivers—212(d)(3)(A)(i)
2. For others—general discretionary waivers—212(d)(3)(A)(ii)
  1. Temporary admission as a nonimmigrant
3. Of specific grounds
  1. Criminal—212(h)
  2. Fraud or willful misrepresentation of material fact—212(i); 237(a)(1)(H)
  3. Smuggling aliens—212(d)(11)
  4. Unlawfully present—212(a)(9)(B)(v) (refers to those inadmissible under 212(a)(9)(B)(i))
4. If inadmissibility ground was connected to battery or cruelty—
  1. Illegal entrants and immigration violators—212(a)(6)(A)(ii)
  2. Aliens unlawfully present—212(a)(9)(B)(iii)(IV)

CANCELLATION OF REMOVAL—240A

(Grants LPR status to noncitizens subject to removal from the U.S.—available to noncitizens lawfully admitted and those who enter illegally)

For LPRs
1. A.G. may cancel removal if meet three prerequisites
  1. Residence
    1. Requirements
      1. Must’ve resided in U.S. continuously for 7 years after lawful admission
      2. Must’ve been an LPR for at least five years
    2. Measuring the time period—p. 39
  2. Not convicted of an aggravated felony
  3. Though extreme and unusual hardship isn’t a requirement, A.G. likely to take that into account as a discretionary element
For nonpermanent residents
1. Continuous physical presence in the U.S.—240A(d)(2)
2. Good moral character
  1. Includes crimes of moral turpitude
3. Exceptional and extremely unusual hardship
For battered spouses or children (p.40)
1. Continuous physical presence of three years
2. Standard for hardship is “extreme,” rather than “exceptional and extremely unusual”
3. Hardship to the applicant is relevant, not just hardship to applicant’s citizen/LPR parent or child
Factors to take into account
1. Matter of Gonzales Recinas(p.40)
  1. Heavy burden on parent to provide financial and familial support for many children if deported—lack of family to help in native country
  2. Children’s unfamiliarity w/ Spanish
  3. Unavailability of alternative means of immigrating

DISCRETIONARY REVIEW OF DETERMINATIONS
1. No judicial review in certain determinations
  1. Most crime-related grounds—212(h)
  2. BIA’s discretionary conclusions—(those that require application of law to factual determinations)
    1. Whether an alien has good moral character generally
    2. Extreme hardship
    3. Extreme cruelty
      1. 10^th Circuit view—Perales-Cumpean v. Gonzales
2. Judicial review of certain determinations
  1. BIA’s nondiscretionary conclusions—(those that involve a question of fact, determined through application of legal standards)
    1. Continuous physical presence
    2. Whether petitioner falls into a per se category of bad moral character
    3. Extreme cruelty re: battered spouses
      1. 9^th Circuit view—Hernandez v. Ashcroft
  2. Asylum—“credible fear” determination (reviewable by IJ)
3. In certain circumstances
  1. When determined inadmissible and sent to expedited removal proceedings
    1. Supervisory review of immigration officer’s conclusion that the person meets the criteria for expedited removal
      1. (i.e. if claims asylum or fear of return, gets interview w/ asylum officer, whose “credible fear” determination can be reviewed by IJ)
    2. If claim under oath to be U.S. citizen or returning to the U.S. after previous entry as a refugee, asylee, or LPR—can pursue claim before IJ
  2. When determined inadmissible while seeking adjustment of status—
    1. No administrative appeal for applicant denied adjustment of status
    2. Can renew adjustment app before IJ in removal proceedings—not bound by USCIS decision
    3. Little opportunity for review of IJ decision
  3. When taken into custody—(exclusion and deportation require it)
    1. Custody allows appeal to federal district court via habeas writ

PAROLE (p.34-35)

(When noncitizen is detained at the border and ruled inadmissible, but for some reason the government can’t or won’t deport her—not technically allowed “entry,” but allowed actual, physical presence in the U.S. temporarily)

Does she meet one of the listed purposes? (p.35)

Admissibility : Immigration Law

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