Immigration and Naturalization Wk 2

CLASS OVERVIEW

  • Overview of the criteria for obtaining a visa for admission to the United States as an immigrant.

  • Importance of fitting into specific categories such as:

    • Family-Based Immigration

    • Employment-Based Immigration

  • Today's lesson focuses on:

    • Fundamentals of quotas and preferences in family immigration.

    • Key definitions and requirements for immediate relatives and preference categories.

    • Immediate relatives include spouses, parents, and unmarried children under 21.

    • Definitions of family members and proving the validity of relationships (bona fides of marriage).

  • Reference to additional resources like Canvas document for proof to establish relationships.

IMMIGRANT PRIORITIES

  • Key components to be admitted as an immigrant include:

    • Having to satisfy a category as stipulated in the Immigration and Nationality Act (INA).

    • If granted a visa and admitted to the U.S., the individual becomes a Lawful Permanent Resident (LPR).

    • The documentary proof of LPR status is called a "Green Card" (which is not actually green).

    • Green Cards are similar in size to a driver's license.

GREEN CARD

  • The Green Card serves several purposes:

    • Acts as evidence of LPR status.

    • Functions as an identification document.

    • Provides evidence of eligibility to work in the U.S.

    • Is utilized as an entry document for returning from trips abroad.

    • Requires periodic renewal every 10 years.

EXEMPT FROM QUOTAS & SUBJECT TO QUOTAS

  • Immediate relatives are:

    • Spouses, parents, and unmarried minor children (under 21) of U.S. Citizens (USCs).

    • Important stipulation: if petitioning for a parent, the USC must be at least 21 years old.

    • Reference to Section 201(b)(2)(A)(i) of the INA.

  • Preference categories include:

    • Family (Section 203(a))

    • Employment (Section 203(b))

  • Numerical caps apply worldwide for each preference category:

    • Specific limitations per country.

    • Introduction of diversity visas through Section 203(c), which has its own formula for distribution.

UNDERSTANDING THE INA

  • Familiarity with the Immigration and Nationality Act (INA) is essential for understanding immigration law.

  • The Act includes complex legal frameworks:

    • Suggestion to read relevant provisions carefully for the first time and note key components.

    • Review cross-references within the book or resources.

    • Regular revisiting of materials is crucial for comprehension, especially when answering questions or solving problems.

    • Focus on what is mentioned in the text and what is flagged in the syllabus for study and review.

FAMILY-SPONSORED IMMIGRANT CATEGORIES

  • Detailed breakdown of immigration preferences:

    • Immediate relatives - no limits and the largest group admitted.

    • Family and employment visas are subject to worldwide caps and per-country limits.

    • Utilization of the Department of State (DOS) Visa Bulletin to check cut-off dates and prioritization in specified countries.

QUOTAS

  • Examination of quotas in relation to immigration:

    • Discussion on whether current quotas meet the demand for immigration.

    • CAP limitations for family-based and employment-based visas:

    • No single country can exceed 7% of the total visas available in any given year.

VISA BULLETIN

  • The importance of the Visa Bulletin, which is administered by the State Department:

    • Link provided for accessing the Visa Bulletin online.

    • Suggested search terms to find the Visa Bulletin easily.

PREFERENCE SYSTEM

  • Discussion on whether there should be a preference system in place for visas:

    • Consideration of effectiveness of a first-come, first-served model as an alternative.

IMMIGRANT CATEGORIES SUMMARY

  • Immediate relatives are not subject to caps and include:

    • Spouses, children, and parents of U.S. citizens (with age stipulation).

  • Preference categories, which include:

    • Family and employment visas as well as diversity visas, which are limited by the global numerical caps.

    • Continuous reference to DOS Visa Bulletin for cutoff dates and limitations.

FAMILY IMMIGRATION DEFINITIONS

  • Immediate relatives defined:

    • Children, spouses, and parents of a citizen of the United States (USC).

    • For parents, the USC must be at least 21 years old (Section 201(b)(2)(A)(i) of the INA).

  • Family preference categories detailed:

    1. Unmarried sons and daughters of USCs (F1).

    2. (A) Spouses and children of Lawful Permanent Residents (LPR) & (B) unmarried sons/daughters of LPRs (F2).

    3. Married sons and daughters of USCs (F3).

    4. Siblings of USCs over the age of 21 (F4).

    • Referenced in Section 203(a) of the INA.

FAMILY IMMIGRATION - FOLLOWING TO JOIN

  • Following to join rules are dictated by Section 203(d) of the INA, applying solely to preference categories:

    • A spouse or child not entitled to immigrant status may receive the same status as the primary applicant if accompanying or following to join the primary spouse or parent.

    • This includes family and employment preference visas as well as diversity visas, but not immediate relatives.

DISTINCTIONS IN PREFERENCE CATEGORIES

  • Considerations of the distinctions made between married and unmarried adult sons and daughters in the preference visa categories:

    • Married sons/daughters of USCs receive different treatment than unmarried ones (1st & 3rd prefs vs. 2nd pref for LPR), highlighting disparities.

    • Advisory questions posed regarding advising siblings of USCs versus unmarried sons of USCs.

FAMILY IMMIGRATION - WAITING GAMES

  • Definition of a child per INA as "under the age of 21 and unmarried."

  • Explanation of the implications when a visa petition is filed for a child under 21 who ages out before the process completes:

    • The Child Status Protection Act (CSPA) aims to preserve the child's status under certain circumstances:

    • If the petition was filed before age 21, the child retains immediate relative status despite aging out.

CSPA APPLICATION TO CHILDREN

  • Conditions of the CSPA:

    • If a Child of a USC is under 21 when a visa petition is filed, they remain classified as a child for immigration purposes.

    • Reference to Section 201(f)(1) discussing the limitations and implications.

CSPA CONVERSION

  • Conversion scenarios outlined:

    • If a LPR parent petitions for a child (F2A), upon naturalization while the petition is pending, the child's age freezes on the naturalization date, converting the petition to Immediate Relative (IR) status.

    • Similar policies apply when a USC parent files for a married son or daughter (F3), with discussion surrounding the effect of marriage termination on status.

AGE OF CHILD IN PETITION PENDING

  • Determining how age is calculated is essential:

    • The child’s age freezes when a visa number becomes available.

    • This age is reduced by the number of days from filing to approval.

    • The necessity for the child to seek to acquire status within one year referenced in Section 203(h)(1).

CSPA AUTOMATIC RETENTION

  • Automatic conversion and retention principles are critical with aged-out beneficiaries in a family category:

    • The petition will convert to the correct category with the original priority date retained.

    • This transition is subject to longer waiting times typical of lower preference categories but avoids losing the place in line.

    • Mention of the Supreme Court case "Scialabba v. Cuellar de Osorio" underlining the interpretation of these rules.

PROBLEM SCENARIOS DISCUSSED

  • Specific problem scenarios presented to illustrate immigration complexities:

    • Problem 3: Xavier wants to petition for his spouse Yolanda and sister-in-law Zendaya, considering current immigration statuses and advice provided on timelines and priority.

    • Problem 4: Annika considering the implications of marriage when petitioning through her USC father, weighing wait times against immediate relative classifications.

FAMILY IMMIGRATION - MARRIAGE CONSIDERATIONS

  • Discussion on implications of marriage:

    • Historical cases, such as "Adams v. Howerton," emphasizing the legal definition of marriage as it relates to immigration law.

    • Two-step process established to determine whether a marriage qualifies for immigration purposes based on state law and corresponding federal definitions.

ADAMS V. HOWERTON CASE

  • Important judicial conclusions regarding recognition of same-sex marriages:

    • Highlighted the strict definition of spouse in immigration matters and the rational basis for legislative decisions.

    • Examination of how societal norms influenced the legal perspective on marriage.

MARRIAGE ACTS AND CASES

  • Coverage of the Defense of Marriage Act (DOMA) and its subsequent invalidation through "United States v. Windsor":

    • DOMA's definition of marriage constrained immigration benefits.

    • Explanation of how marriage equality was recognized post-Windsor, bringing to light the implications for legal benefits under the law cascading from valid state-recognized unions.

BESPOKE CASE OF ZELENIAK

  • Discussion of how "Matter of Zeleniak" emphasized equal treatment for valid same-sex marriages post-Windsor:

    • Confirmation of marriage validity under state law was fundamental in determining immigration benefits available to the spouses.

MARRIAGE FRAUD AND VALIDITY

  • Discussed the necessity for proofs of bona fide marriage for immigration purposes:

    • Analysis of marriage fraud scenarios highlighting two distinct forms:

    • Both spouses consent to a sham marriage.

    • Only one spouse deceives the USC/LPR spouse in pursuit of immigration benefits.

MARRIAGE FRAUD TESTING

  • Examination metrics for assessing the bona fides of marriages:

    • Institutions and processes previously employed by USCIS for validation included interviews, visitor inquiries, and documentary evidence of shared life.

IMMIGRATION MARRIAGE FRAUD AMENDMENTS (IMFA - 1986)

  • Review of Section 216 stipulations:

    • Initial period of conditional residency and criteria for evidence submissions related to marriage validity.

    • Importance of timely filings and substantive proof presented at interviews.

WAIVERS AND EXCEPTIONS

  • Key waiver provisions discussed under Section 216:

    • Types of waivers available for conditional residency such as extreme hardship, good faith marriage, and protections from abusive relationships.

OTHER MARRIAGE-RELATED PROVISIONS

  • Provisions reflecting on prior marriage fraud and implications for visa petitions:

    • Stipulations barring individuals from receiving visas who previously engaged in fraud, with a substantial need for evidential verification on marriage legitimacy to overcome initial disqualifiers.

SPECIFIC PROBLEMS RELATED TO IMMIGRATION

  • Presentation of further problems illustrating challenges faced by applicants:

    • Problem 7: Examines a scenario with conditional status challenges invoking waivers for absence during residence interviews.

    • Problem 8: Discusses Gerardo’s strategy in conjunction with his father’s status and implications surrounding marriage fraud that might impede future immigration benefits.