Nonimmigrants
Nonimmigrants
Definition: Anyone wishing to come to U.S. presumed immigrant (§ 214(b)). “Imm” defined as anyone except listed categories of non-imms in § 101(a)(15).
Exs: Foreign gov officials (A); visitors for business/pleasure (B-1, B-2); students (F, M); Int’l reps (G); Cit fiancés (K).
32 mill nonimm admissions in 2001; 90% visitors for business and pleasure (½ don’t need visas – special countries).
Must show bona fide residence elsewhere and intent to return (desire to stay legally doesn’t preclude this).
Three paths: Apply @ consulate; come from a waived country; adjust from another nonimm visa while here.
Definitions and Basics
A nonimmigrant is a noncitizen who seeks entry to the U.S. for a specific purpose to be accomplished during a temporary stay.
Most important requirement in many categories is that the noncitizen “has a residence in a foreign country which he has no intention of abandoning.”
However, courts have held that “dual intent” is acceptable if it’s the intent to stay in the U.S. permanently if lawful means arise.
Nonimmigrant overstays are about 1/3 of the undocumented population.
No fixed limits on nonimmigrant admissions, except H-1B and H-2B categories.
Major Nonimmigrant Visa Categories – INA § 101(a)(15)
A – Foreign government officials
B – Visitor for business (B-1) or pleasure (B-2). Constitutes almost 90% of all nonimmigrant admissions.
Most B-1 visitors enter under the visa waiver program. B-1s may NOT enter to perform skilled or unskilled labor – it should be conference and negotiation. This can be a confusing line (what about drawing up a contract?)
The point is that B visas should not be used as an easier alternative to H visas.
C – Transit aliens (passing through the country)
D – Alien crewmen
E – Treaty traders (E-1) and investors (E-2)
F and M- Students and their spouses and children. Second biggest category. M is for vocational studies.
H – Temporary workers and trainees, spouses and children
H-2A: Temporary agricultural workers. Requires labor certification, but you don’t have to recruit U.S. workers as hard as you’re going to recruit foreign workers. Lots of wage and working condition problems with these workers.
H-2B: Temp workers for temp jobs. Available only if unemployed persons capable of performing the job can’t be found in the U.S. (Landscaping is a common job.) One-year admission, 2 extensions possible. 66,000 a year max.
H-1B: Temp workers for a “specialty occupation.” § 214(i). Requires equivalent of U.S. bachelor’s degree or higher in the specialty. Instead of full labor certification, requires an “attestation” by the employer about conditions and pay. Limit of 65,000 a year (was 195K), universities and nonprofits exempt.
K – Fiances of U.S. citizens (“sweetheart” visa)
L – Intracompany transfers, spouses and children
T – Victims of trafficking, spouses and children. Capped at 5K.
U – Victims of criminal activity, spouses and children. Capped at 10K. T and U visas are eligible to adjust to permanent residency after 3 years if they continue cooperation with law enforcement.
Inadmissibility: Crimes, Immigration Control, Fraud (427-31, 432-34, 442-43) 🡪 INA§212(a)
Once you fall into a qualify category for a visa must still avoid determination of admissibility under INA § 212(a).
Possible opportunities to be assessed as inadmissible:
Consular official abroad
Inspector at port of entry (BCBP)
In US, adjusting status to LPR, must be “admissible” (INA § 245(a))
Post-1996: Exclusion grounds now termed inadmissibility grounds:
Deportation grounds apply only after a noncitizen has been admitted: § 237(a).
“Removal” proceedings now involve both inadmissibility (§ 212(a)) and deportability (§ 237).
Must a returning LPR be re-admitted?
Pre-1996: Excludable every time they returned, w/exception of “innocent casual, and brief excursion by a resident alien outside borders that may not have been ‘intended’ as a departure disruptive of LPR status” Rosenberg v Fleuti.
Problem: definition difficult to apply.
1996 clarification in § 101(a)(13)(C): An LPR shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien (i) has abandoned or relinquished that status, (ii) has been absent from the United States for a continuous period in excess of 180 days, (iii) has engaged in illegal activity after having departed the United States, (iv) was already in removal proceedings (v) has committed a crime identified in § 212(a)(2) unless since such offense the alien has been granted relief under § 212(h) or § 240A(a), or (vi) not come in through port of entry.
Waivers:
Those with parent, child or spouse US citizen or LPR most likely to get waiver esp § 212(h) criminal behavior, or health related (§ 212(g)).
Waiver of prior fraud seeking admission or inadmissibility based on prior unlawful presence-only spouse or parent LPR or citizen relative helpful, not kid.
DV victims benefit from host of special waivers
Six Major Categories of Inadmissibility:
Health § 212(a)(1):
Communicable diseases of public health significance as determined by Health and Human Services. Currently 8. TB, Leprosy, controversially HIV). Mental or behavioral illness threatening to public safety, drug abusers. Also, vaccination requirements.
Note: fraud an issue- no blood tests at ports of entry.
Criminal Grounds § 212(a)(2):
Crimes of Moral Turpitude = inadmissible
Moral Turpitude exception if crime was committed under age of 18 and 5 years before application for visa.
Drug crimes = inadmissible (exceptions don’t apply if related to drug trade)
Multiple crimes of any kind w/total max sentences >5 years (exceptions don’t apply)
[See practice probs for how this § works]
Agg felony can disqualify you for a waiver.
Security and Related Grounds § 212(a)(3) [below]
Public Charge (443-49, 451) § 212(a)(4):
Accounts for 75-90k initial refusals of properly filed visa apps. 36K of them overturned with further evidence.
Broad discretion of administrative officer: “any alien who in the opinion of the consular officer or AG is likely at any time to be public charge” (although factors to consider listed)
Also INA § 237(a)(5): Deportation if become PC five years from entry from causes not affirmatively shown to have arisen since entry.
Affidavits of Support:
Matter of Kohama (1978): Facts: Parents apply for LPR status presented affidavits of support from their children as proof the would not become PC. INS director held affidavits to be promissory and not binding and thus insufficient proof that parents wouldn’t be PCs
Holding: Affidavits of support may be sufficient evidence, if facts (here history of sending money) corroborate even though aff. not legally binding
1996 Amendments: PRWORA/IIRIRA made affidavits binding and required for each immigrant entering via family based preference (or employer if relative) even if immigrant’s own assets would satisfy consular officer.
Sponsor must show ability to support sponsored immigrants + own household at 125% poverty level.
Affidavit Enforcement Period: 40 SS quarters (10 years)
Note: Immigrants can get any kind of public benefits for 5 years by 1996 welfare reforms (plus additional deeming period usually precludes for another 5 years -40 quarters)
However: If immigrant received means tested benefits from state or local gov (may be lower/more flex than fed), gov may sue sponsors to recoup.
Sponsored immigrant can also sue sponsor for support! § 213A(b),(e)
Labor Certification issues: § 212 (a)(5)
Illegal Entry/Fraud/Smuggling § 212(a)(6)
If reason to believe applicant @ port is covered by this ground or 212(a)(7) (lack of proper docs), expedited removal as of 1996 (see 235(b)(1)(A)(i))🡪 2004 expanded to aliens already w/in US
Misrepresentation requires affirmative act by alien (oral, written, submitting evidence w/false statements)
Omission/silence not misrepresentation.
Must be before, US official, made in alien’s own application, made by alien, attorney or agent.
Willfully: must be done knowingly and intentionality.
Re-entry bars § 212(a)(9)(B)
Illegal entrant unlawfully present for 180 days to a is barred for 3 years if leave voluntarily
Over one year=10 year bar.
Very difficult to get waivers.
If ordered removed after being here illegally for over a year, and then you try to re-enter, you’re barred for life.
