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Immigration Law

United States immigration and naturalization law is federal law and administered by federal agencies and courts. This means that lawyers who practice immigration law are not confined to the state in which they are admitted to the bar and can represent clients in the entire country and at all foreign representations of the United States. The department mainly in charge of administering the immigration and naturalization laws is the Department of Homeland Security (DHS). It has several bureaus entrusted with different tasks in implementing the immigration laws. The United States Citizenship and Immigration Services (USCIS) is mainly in charge of affirmative applications by or petitions for aliens, as non-US citizens are called in the immigration context. Immigration and Customs Enforcement (ICE) is the unit that enforces the laws in regards to removal and other sanctions against non-compliant aliens. Border and Customs Protection (BCP) is in charge of protecting the U. S. borders, also in regards to admission of aliens at the borders. Apart from DHS there are three other departments that are in charge of specific aspects of immigration. As visa issuance is concerned, many competences lie with the Department of State (DOS), especially its consular offices abroad. Unlike U. S. civil servants in the national context, consular officers enjoy a far-reaching independency, as their factual decisions, such as evaluating the credibility of visa applicants, are not subject to any review. This doctrine of consular unreviewabilty guards their decisions against most legal challenges. The Department of Labor (DOL) is entrusted with the responsibility to protect the U. S. Labor market from foreign workers, who are only allowed to work in the U.S. under very stringent rules. Thus, DOL needs, in most cases, to certify that a position in the U. S. cannot be filled with domestic workers, before one can think of hiring foreign workers. The immigration courts are mainly in charge to render decision on whether aliens may be removed (meaning deported). They are part of the Department of Justice (DOJ).

In order to obtain immigration benefits, such as permanent residence, naturalization or employment authorization, the alien, respectively a family member or an employer, needs to pay considerable application or processing fees to the respective agency and provide sometimes very comprehensive information, whereby numerous administrative rules and regulations need to be followed.

The legal framework in which immigration and naturalization law is being administered consists of statutory law, mainly embodied in the Immigration and Nationality Act (INA), formal regulations by the agencies involved, case law of the federal courts as well as the administrative appeal bodies, such as the Board of Immigration Appeals (BIA), which partly reviews immigration judges' decisions, the Board of Alien Labor Certification Appeals (BALCA), which reviews DOL decisions on labor certifications, and the Administrative Appeals Office (AAO), which reviews many USCIS decisions. In addition, a wealth of internal letters, memoranda, guidelines, advisory opinions and interpreations that guide the administration in immigration matters, as well as rules of the immigration courts and a number of convenience rules at the different agencies need to be considered in order to provide competent immigration law advice. Up

How to pick a lawyer and why not to entrust oneself to a non-lawyer

The legal practice of immigration law is reserved to lawyers admitted to the bar and, in some circumstances, to pro bono organizations. Lawyers are not only supposed to have the respective knowledge of the law; they are also under an ethical obligation to provide competent and legal advice to their clients. As members of the bar they are subjected to disciplinary action when they fail to meet these ethical standards. On the other hand, there are a number of persons who are not legally trained and are not allowed to practice law who offer their services to the immigrant community. These people, even if they might have some basic understanding of the law, are not subject to the disciplinary oversight of the bar. They cannot sign documents submitted to the immigration agencies. Clients have thus no recourse, if they have received incompetent and often enough false advice that may lead to desastrous consequences, including deportation. For that reason, immigration lawyers warn against using the service of non-accredited or self-authorized persons who tend to the immigrant community and enjoy sometimes trust solely because they speak the language or have a similar background as the immigrants looking for help. While retaining a lawyer admitted to the bar is imperative when one wants to obtain competent legal representation, it is also highly advisable to pick a lawyer who is competent in the field. A good indication of whether a lawyer is dedicated to immigration law is if the lawyer is a member of the American Immigration Lawyers Association (AILA). AILA provides a wealth of expertise, assistance and information to its members that it is hardly understandable why any lawyer practicing in the field of immigration would not be willing to join this organization and thus neglect an extremely important source of knowledge. Up

Permanent Residence

Close family members who are U. S. citizens and legal permanent residents (LPR's) can petition for an immigrant visa number for their alien relatives. However, visa numbers are only directly available to immediate relatives, i.e. spouses, unmarried children (under age 21) and parents of U. S. citizens. All other qualifying relatives of U. S. citizens (married and adult children, siblings) and all qualifying relatives of permanent residents (spouses and unmarried children) need to wait until a visa number becomes available, which can sometimes take a very long time (for instance in the case of siblings of U. S. citizens). Some categories are virtually unavailable for aliens living in oversubscribed countries like Mexico, the Phillipines or China.

Once a visa number becomes available (current), in case of immediate relatives of U. S. citizens immediately, the alien beneficiary of a visa petition can apply for an immigrant visa, if he or she is outside the United States, or for so-called adjustment of status, if in the U. S., to eventually obtain a green card. In case the applying relative is outside the U. S. or for some reason not allowed to apply for adjustment of status, the person has to go through consular processing, which means to apply for an immigrant visa at the U. S. consular office abroad that has jurisdiction over that person. In this case, most fees and most necessary documents need to be filed with the National Visa Center (NVC) in the U. S., and the case is only forwarded to the consulate for a visa interview when the documentary requirements are fulfilled. Nearly all family-based immugrants need to demonstrate that they will not be a public burden to U. S. taxpayers when they immigrate. For that reason the petitioning U. S. relative needs to file an Affidavit of Support for them by which he can show that he or she has enough funds to support the immigrant at a level of 125% of the Poverty Guidelines that are annually published by the U. S. Department of Health and Human Services. According to the Poverty Guidelines currently (2011) in force, for most states a sponsor with one family member (the prospective immigrant) needs to demonstrate an income level of $18,212 per year. For each additional family member another $4,675 are added to this amount. If the petitioner does not have enough income, he or she can either substitute missing income by property valued three times the lack of income or by providing affidavits of support by other persons. All sponsors signing an affidavit of support thereby enter a legally enforceable agreeement to reimburse the government for any support rendered to the alien (even if the family relationship that led to the signing of the affidavit does not exist any more, e.g. when the person who sponsored the immigrant is meanwhile divorced from that alien). The rules about the affidavit of support are quite elaborate and complicated and are vigorously enforced by the immigration authorities; often an in-depth review of the sponsor's financial situation becomes necessary before filing an affidavit of support.

Special rules guide the admission of spouses. If the marriage is not yet two years old on the day of the admission of the alien (i. e. the day the green card is issued), permanent residence is provided only on a conditional basis. The rationale for this is that the authorities want to avoid issuing green cards to aliens based on fake marriages. During a period beginning ninety days before and ending on the second anniversary of issuance of the first green card the spouses are required to file a joint petition for the removal of the condition. With that petition they need to submit documentation showing that the marriage was entered into in good faith. Accepted are normally documents that show that the spouses share their financial assets, such as joint tax returns, joint leases and joint accounts, joint utility bills and insurance documents benefitting the other spouse, as well as birth certificates for children out of the relationship. In recent times these petitions are undergoing a very high scrutiny by USCIS and a careful preparation of the petition is very important to achieve the removal of the condition. If the petition is not submitted on time or if the condition is not removed, the alien is stripped of his or her status and put in removal proceedinsg before the immigration judge.

All immigrants filing for adjustment of status based on marriage have to appear at an interview in which they have to convince the immigration adjudications officer that their marriage was entered into in good faith. In addition to be able to answer the questions posed by the officer in a satisfactory way, it is also advisable to bring documents, such as photos, that demonstrate that the relationship of the couple is genuine. The emphasis during the interviews is constantly changing; most recently the spouses are sometimes interviewed separately to find out whether they are saying the truth, and only the lawyer can be present with each spouse. The interview process at the consulates is very often even more strenuous, as the consular officers are confronted with many fake marriage cases and are, therefore, very often sceptic to the point of unreasonableness at some consulates with rampant fraud issues. Up

Fiancé(e) cases

U.S. citizens may file petitions for their fiancé(e)s abroad in order to have them come to the U. S. to marry the petitoner. In most cases the U. S. citizen petitioner needs to demonstrate that he/she has met the alien in person within the last two years. Petitioners who have been convicted of violent crimes need to reveal this so that their fiancé(e) can make an informed decision whether to enter into a marriage with that person. Some petitioners, especially those with sexual convictions, are excluded from filing petitions for any aliens (even spouses), unless they receive a waiver that recognizes that they would not pose a threat to the immigrant. When the fiancé(e) petition is granted, the alien fiancé(e) needs to file a fiancé(e) visa application at the consulate abroad and submit to an interview, which can be very intense at some consulates and should, therefore, be carefully prepared; a visa can also be obtained for unmarried children (under age 21) of the alien who are listed on the original fiancé(e) visa petition. Upon admission to the U. S. the alien fiancé(e) has ninety days to marry the petitioning U. S. fiancé(e) and can then apply for adjustment of status to get a green card. Up

Grounds of inadmissibility

All immigrants and nonimmigrants need to be admissible. USCIS and the consular officers, even the officers at the border, will, therefore, check very carefully whether enumerated grounds of inadmissibility apply. Most common are criminal grounds, material misrepresentation or fraud when trying to obtain immigration benefits, health-related grounds (HIV is not a reason for inadmissibility any longer!) and certain specific other bars to admission. One important bar to admission applies when an alien left the U. S. after staying in the country for a lengthy time beyond the expiration date of his or her admission (overstay). If the alien has overstayed without authorization for more than 180 days, he or she is barred from returning to the U. S. for three years; in case the overstay was one year or more, the bar for readmission is ten years. There are a number of waivers available for certain kinds of inadmissibility. However, most of these waivers require that a close relative (usually a spouse) would have to endure special hardship if the alien were not admitted. Applications for such waivers require very diligent preparation and documentation and the decision is entirely discretionary. Up

Bars to adjustment of status

Not everybody who qualifies for permanent residence can apply for the green card in the United States. If a person has violated the terms of his or her admission (most commonly by overstaying or working without authorization) or has entered the U. S. without being admitted by an immigration officer (entered without inspection), he or she is barred from applying for adjustment of status and needs to return home to apply for an immigrant visa at the consular office abroad. However, if such person has already overstayed for more than 180 days or one year or more, that person would be barred for three, respectively ten, years from returning o the U. S., unless he or she can obtain a discretionary waiver. Some aliens for whom family petitions or labor certifications were filed prior to April 30, 2001 may still be able to benefit from Section 245(i) of the INA and adjust status by paying a penalty fee of $1,000. Immediate relatives of U. S citizen (spouses, children, parents) are somewhat privileged, as they can apply for adjustment of status despite having overstayed or worked without authorization. However, there is no waiver for parents of U. S. citizens who have committed material fraud or misrepresentation when applying for an immigration benefit. Up


If a person has resided for five years as a legally admitted permanent resident in the U. S. (only three years in case of an alien who has been living during these years in marital union with a U. S. citizen spouse) and has been physically present in the country during at least half of that period, he or she will in most cases be eligible to apply for U. S. citizenship. The applicant must show good moral character, possess a basic ability to read, write and speak English and have some knowledge of the history and government of the United States. For elderly applicants some facilitations of these requirements apply. One factor that speaks against the good moral character of an applicant is a criminal conviction during the qualification period of five (or three) years. However, people with criminal convictions may not only be ineligible to apply for naturalization; they may even be deportable due to the conviction. For that reason it is important to analyze the criminal history of an alien very carefully before applying for citizenship. The same applies to aliens who have commited fraud or misrepresentations in their immigration process. Male applicants also have to make sure that they complied with their duty to register with the Selective Service System (pre-draft) when they were between 18 and 26 years old and already lived in the country (except as legal non-residents). Applicants who failed to do this without a good explanation will be considered ineligible for at least five (repectively three) years after their last opportunity to register on time.

Normally U. S. law does not require that an alien who applies for citizenship gives up his or her former citizenship. As many aliens are reluctant to abandon the citizenship of their home country, they could maintain both citizenships, provided the foreign country allows this. Some countries, for instance the United Kingdom, are very liberal in allowing their citizens to become citizens of other countries without requiring them to give up their citizenship. Other countries are very restrictive; if their citizens naturalize in another country, they automatically lose their original citizenship. In some countries, e.g. Germany, one needs to obtain a special permission to acquire a foreign citizenship, which is usually only given based on certain enumerated reasons. Applicants for U. S. naturalization who do not want to lose their original citizenship should, therefore, find out about the citizenship rules of their home country before applying for the U. S. citizenship. Up



  • Material presented on this website of the Immigration Law Office of Manfred H. Wiegandt is intended for information purposes only. It is not intended as professional advice and should not be construed as such.