overview of immigration law

As I mentioned previously, I wrote a memo on immigration law. This memo is intended to provide an overview for a lay audience. It will be added to a series of legal information binders, so that's what the cross-references are about. I hope this may be of benefit to Muslims or others who would like to understand immigration law a bit better, inshallah. Please follow the extended entry link to read the memo.

Immigration Status categories There are four broad classes of people under immigration law: U.S. citizens, permanent residents, temporary visitors, and undocumented persons. U.S Citizens A person can become a citizen by birth (born in the U.S.), through parents’ birth (if at least one of the parents is a U.S. citizen), or by naturalization. In order to become a citizen by naturalization, a person must have held permanent resident status for at least five years. See Permanent Residents below for information about becoming a permanent resident. In addition to the residency status requirement, applicants for naturalization must show “good moral character”. The following preclude a finding of “good moral character”: * conviction at any time of murder; * conviction since 1990 of an aggravated felony; * conviction during the past five years of one or more crimes involving moral turpitude (see below), or of any two crimes for which the aggregate sentence was five or more years, or having been confined for an aggregate of 180 or more days pursuant to a conviction; * any controlled substances violation; and * admission of having committed any of the above even if there were no formal charges, indictment, arrest, or conviction. Even if an applicant has had their criminal record cleared, they must inform Immigration if they have committed any of the above crimes and the crimes will count against them for the finding of “good moral character”. The finding of “good moral character” thus extends beyond criminal conviction for removable offenses (see Permanent Residents below for a list) to anybody who has committed these offenses, even if they were never caught, and to anybody who has committed enough lesser offenses to have been imprisoned for more than 180 days or sentenced for more than five years. Other offenses that preclude a finding of good moral character include: * false testimony to obtain immigration benefits, * prostitution or commercialized vice, * smuggling of immigrants, * polygamy, * illegal gambling, * habitual drunkenness, * willful failure to support dependents, and * adultery that tends to destroy an existing marriage. A “crime involving moral turpitude” may be any crime against person, property, or the government that involves violence, evil intent, or fraud. It is case law rather than statutory law that defines what is and what is not a “crime involving moral turpitude”; immigration judges decide this on a case-by-case basis. A person who is unsure whether they have committed a crime involving moral turpitude should consult an immigration attorney in their jurisdiction. This may also be an area of concern for gays and lesbians; see the Gays and Lesbians section of this binder. See the Citizenship section of the binder for more detailed information about naturalization requirements. Permanent Residents Permanent residents are also called “green card holders” or “legal immigrants". They are allowed to live and work in the U.S. on a permanent basis. They may leave the country for periods of up to a year and re-enter by showing their green card; if they intend to be gone more than one year and less than two years, they must obtain a re-entry permit. In order to maintain lawful status they must not commit any act that would make them removable and they must not abandon residence in the U.S. by leaving the country for more than two years. Acts that make a permanent resident removable include: * having been convicted of any aggravated felony; * having been convicted of two or more crimes involving moral turpitude; * having been convicted of any controlled substances or firearms violation, or of domestic violence, stalking, or child abuse, abandonment, or neglect; * violation of a protection order; * having been a drug abuser or drug addict; * having been convicted of a crime involving moral turpitude with a sentence of more than one year within the last five years; or * being a public charge within five years from date of entry Persons who receive public benefits at a later time are not removable but may not be re-admitted if they leave the country. See the Public Benefits section of this binder for more information about legal immigrants and public benefits. Permanent residents who have committed a removable offense may seek cancellation of removal if they have held permanent resident status for at least five years and resided continuously in the U.S. for at least seven years, and if they have not been convicted of an aggravated felony. Additionally, some persons who are eligible for permanent resident status through family (spouse, parent, or child) may seek cancellation of removal and admission to permanent resident status if they have been continuously present in the U.S. for at least ten years, can show “good moral character”, and if their removal would cause exceptional and extremely unusual hardship to the family member. This is limited to 4,000 people in each year. The main ways to obtain permanent resident status are by marriage or family relation to a citizen or permanent resident, through employment, or in the diversity lottery. See Temporary Visitors - Immigrant Visas below for more information. At the current time, U.S. law does not recognize homosexual marriages even if they were validly made in other countries; therefore gays and lesbians cannot seek permanent resident status through their partners. See the Gays and Lesbians section of this binder. People who obtain permanent resident status through marriage to a citizen or permanent resident will be under conditional status for two years; this is intended to deter marriage fraud. The spouse must then sponsor the conditional permanent resident for removal of the conditional status. If the marriage ended through divorce or death of the other party, a conditional permanent resident may still be able to adjust their status if they can show that the marriage was made in good faith (that is, it was not for the sole purpose of obtaining immigration benefits) and that it would cause them extreme hardship if their conditional status were terminated. Domestic violence victims may be able to self-petition for adjustment of status if they were battered or subjected to extreme cruelty during the marriage in the U.S. and if they can show “good moral character”. They do not need to remain married to the abuser for the two-year period if they can show that the marriage was made in good faith. Temporary visitors Temporary visitors are people who are allowed into the U.S. temporarily for a specified purpose. If that purpose is no longer valid, they must leave the country. Temporary visitors may be able to obtain advance parole for re-entry if they need to leave the country for emergency travel. In general, a person may be able to adjust to another temporary visitor category if they can find a sponsor (a school or employer). However, the U.S. generally grants visitor visas only to people it feels are not likely to become immigrants and therefore switching from one visa type to another to extend one’s stay may be scrutinized. This is especially true for business/pleasure visa-holders seeking to adjust their status. The following are the main categories of temporary visitors. Business/pleasure visas - These are for tourists, vacationers, business travelers and the like. Visa-holders may not accept employment while in the U.S. However, they may take a short course of study less than 18 hours per week without needing to obtain a student visa. It may be possible to get an extension of stay for this type of visa. It is also possible to adjust to a student or worker visa once in the country. Temporary workers - These are people admitted to the country for the purpose of working temporarily; their status terminates if they lose their job or switch to a job in a field other than the one for which they were admitted. The spouse and dependent children of the visa-holder may also live in the U.S. but the spouse is not allowed to work and must remain married to the visa-holder to retain status. This may be a concern for victims of domestic violence (see notes below). Temporary workers may file for extensions of their stay up to a limit (varies by type of visa). They must then stay out of the country for some fixed time before being re-admitted under any temporary worker classification. It is possible for a temporary worker to adjust to another temporary visitor status category. Related to this category are NAFTA professionals: citizens of Canada and Mexico who work in the U.S. in fields specified by NAFTA regulations. Following this memo is an article with answers to frequently asked questions about the H1-B visa, which is the major temporary worker visa. Students - These are people admitted to the country for the purpose of completing a program of academic or vocational study; their status terminates if they are no longer students. The spouse and dependent children of the visa-holder may also live in the U.S. but the spouse is not allowed to work and must remain married to the visa-holder to retain status. The visa-holder is allowed to take on-campus jobs, but can only take off-campus jobs after the first year and with permission of Immigration. A student may file for an extension of their stay if this is necessary to complete their program of study. They also have 30 to 60 days after the completion of their program to close up their affairs and leave the country. It is possible for a student to adjust to another temporary visitor status category; many obtain an H1-B temporary worker visa, which is for professional or highly skilled workers. Somewhat related to this category are exchange visitors who are part of an educational or cultural exchange program. These visas have different requirements. See the Immigration website for specific details about exchange visas. Temporary workers and student visa holders may bring their spouses and unmarried dependent children into the country as noted above. There are special visas for family members of the primary visa-holder. However, if the couple divorces, the spouse can no longer remain in the country on the spouse visa. She may be able to obtain a student or temporary worker visa of her own if she is qualified and can find a sponsoring school or employer; otherwise she must leave the country. Immigration has announced the U visa (see Undocumented Persons - S,T, or U Visa below) which would allow victims of domestic violence to remain in the country even if they leave their spouses; however the U visa is not yet available. Visa-holders should also be aware that there is a difference between the authorized length of stay and the visa expiration period. The visa may expire and need to be renewed before the authorized length of stay is over; this does not affect the authorized length of stay. However, once the authorized length of stay is over, the visa becomes void even if it has not expired. In addition to the above types of temporary visitor visas, there are some other types of visitor visas that people may obtain to enter the country or to remain in the country while adjusting their status to some other category. Immigrant visas - These are for people who will be converting to permanent resident status. These visas allow people to enter or remain in the U.S. while their application for permanent resident status is being processed. The primary ways to become a permanent resident are to marry a U.S. citizen or to be the child of one. Spouses and unmarried dependent children of U.S. citizens may become permanent residents without restriction on number. Parents of U.S. citizens are may also become permanent residents without restriction on number, but the child must be at least 21 years old and must be able to support the parent(s) he or she is sponsoring. Any child born in the U.S. is automatically a citizen by act of law, but the parents would have to find other ways to remain in the country for 21 years to take advantage of this for their own permanent residency. All other ways of becoming a permanent resident are limited in number. These include marriage to a permanent resident or being the adult unmarried child or the sibling of a citizen (226,000 a year altogether), employment (140,000 a year), and the diversity lottery (55,000 a year). Each of these categories has a type of immigrant visa that covers it. See the Immigration website for more information about the types of immigrant visas that are available. Other - If a temporary visitor has information on a criminal or terrorist organization, or is a victim of trafficking or violent crime, and would otherwise be out of status, they may be able to obtain an S, T, or U visa. See Undocumented Persons - S, T, or U Visa below for more information about these visas. Undocumented persons Also called “illegal aliens”. It refers to anybody who does not have documentation authorizing their stay in the U.S., whether they never got such documentation or because they overstayed a valid visa. Undocumented persons are considered “deportable”: if Immigration confirms their status they may be removed from the country by a summary proceeding. Also, they cannot obtain advance parole to leave the U.S. or if they do they will not be re-admitted on attempted re-entry to the country. However, there are several ways that an undocumented person may be able to obtain a protected status and stay in the country. Refugee/Asylee - A refugee or asylee is a person who is unable to return to their home country because of fear of persecution. Asylees are people already in the U.S. who seek protection; refugees are people outside the U.S. who seek to enter with protection. Otherwise, the two status categories are the same. The refugee’s or asylee’s spouse and dependent children may also be granted refugee/asylee status. If granted status, a refugee or asylee may apply to become a permanent resident after one year. They may work in the U.S. They may leave the U.S. temporarily and re-enter if in possession of a Refugee Travel Document. Temporary Protected Status - Temporary Protected Status is granted to people for whom armed conflict or environmental disaster in their home country poses a danger to their personal safety. TPS is granted on a by-country basis (to all people from the designated country) and is temporary; it does not grant any permanent change of status. Once TPS is lifted, the person returns to their previous status. They must try to regularize their status through other means while they are still under TPS. People under TPS may work in the U.S. S, T, or U visa - These are types of visa that grant temporary protection to people who are cooperating in a criminal investigation. The S visa is for investigation of organized crime (including terrorism), the T visa is for people who arrived in the U.S. because of trafficking and are cooperating in an investigation of it, and the U visa is for people who have been victims of violent crimes, especially gender-related crimes (including domestic violence), while in the U.S. All of these visas are limited in number. For the T and U visas, the spouse and dependent children of the visa-holder may also be granted status. Holders of any of these visas may work in the U.S. and may apply to become a permanent resident. The U visa is not yet available. Registry provision - The Registry provision of immigration law is for undocumented persons who have been continuously in the U.S. since 1972. They must not be ineligible for citizenship and must show “good moral character”. If they qualify, they may become permanent residents. They can obtain a work permit while their application for permanent resident status is being processed. Citizenship More detailed information about naturalization requirements is available in the Citizenship section of the binder including answers to common questions, rules concerning children of naturalized citizens, requirements for the naturalization application, and situations in which an immigrant may wish to seek legal help before applying for naturalization. Domestic violence Immigrant women who are victims of domestic violence are more vulnerable than most victims because they may face deportation if they leave an abusive situation. As mentioned above, if they have conditional permanent resident status through marriage to a citizen or permanent resident, they may self-petition for adjustment to full permanent resident status and leave the marriage. Women married to temporary visitors are in a much more precarious position since the promised U visa, which would allow them to leave the marriage and obtain permanent resident status on their own, has not been issued yet. The Domestic Violence section of this binder contains further information including an overview of immigration options for victims of domestic violence, requirements for self-petition, and tips for advocates working with immigrant victims of domestic violence. Discrimination Discrimination against people because of citizenship status or national origin is illegal. The Employment Discrimination section of this binder contains an overview of the law in regard to citizenship and national origin discrimination, who is protected by the law, and remedies that may be sought. It also includes an advocate’s guide to citizenship and national origin discrimination cases. Rights if stopped by law enforcement officials The American Civil Liberties Union has prepared a memo explaining the rights of all persons resident in the U.S., whether citizen or not, when law enforcement officials stop them. Non-citizens may hesitate to inform the police of crimes committed against them for fear that they will get in trouble with Immigration. This memo explains what rights a non-citizen has and what they should do if stopped by law enforcement. Gays and lesbians One of the major areas of concern for gays and lesbians in regard to immigration law is that homosexual partnerships are not recognized as marriages under United States law. Because of this, many types of immigration benefits may not be available to gays and lesbians, including obtaining permanent resident status or a temporary visitor visa through their partner, or seeking cancellation of removal. As well, gays and lesbians may face trouble in showing “good moral character,” which is required for naturalization, cancellation of removal, and certain other adjustments of status. Although sexual orientation in itself does not preclude a finding of “good moral character”, homosexual acts may be classed in some jurisdictions as crimes involving moral turpitude and thus the commission of these acts, whether there was a conviction or not, may preclude a finding of “good moral character”. This area of the law is in flux and gays and lesbians should consult an immigration attorney if they fear they may face trouble in showing “good moral character.” The Gays and Lesbians section of this binder contains an overview of immigration law as it relates to homosexuals and answers to frequently asked questions. Public Benefits Legal immigrants (lawful permanent residents) may not be eligible for some public benefits or may find that accepting public benefits makes them removable from the U.S. or bars their re-entry should they have to leave the country for any reason. The Public Benefits section of this binder contains detailed information on what types of public benefits legal immigrants are eligible for and what affect it may have on their status.