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IMMIGRATION
WHAT IS IMMIGRATION LAW?
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Immigration law in the United States is
particularly unique and complex, certainly too complex to describe in
perfect detail for the casual reader.1 This complexity is because
immigration law is taken from many sources, which are administered by
three distinct and independent departments of the U.S. Executive Branch
of our federal government: the Department of State, the Department of
Homeland Security, and the Department of Justice. As a direct result of
the World Trade Center bombing on September 11, 2001, the Department of
Homeland Security (DHS), was created by the Homeland Security Act,
passed by the U.S. Congress on November 13, 2002, in order to coordinate
national security concerns within all government agencies, including
those relating to immigration law. Accordingly, the former Immigration
and Naturalization Service, (INS), has been replaced and dissolved, as
discussed below.
The Department of State has control over U.S. Consulates outside of
the United States, which issue visas that permit people to travel to the
United States either to reside in the U.S. for an indefinite period as
an immigrant, or to enter and remain in the U.S. for a limited period of
time, as a non-immigrant. There are many types of varieties of visas
issued for many purposes.
As far as immigration law is concerned, the Department of Homeland
Security oversees two divisions, one focusing on benefits and the other
focusing on enforcement. On the benefits side, the Bureau of Citizenship
and Immigration Services (CIS) grants proper legal status in the U.S.,
ensures that non-citizens conform to their status while in the United
States, and reports all known violations of immigration law to
enforcement divisions, overseen by the Directorate for Border and
Transportation Security (BTS). The BTS is, in turn, divided into two
divisions: the Bureau of Customs and Border Protection (CBP), which
focuses on admissibility and inadmissibility of intending entrants at
U.S. ports-of-entry, (airports, seaports, and roadside inspection
stations), and the Immigration and Customs Enforcement (ICE), focusing
on criminal investigation, arrest, detention, and removal of foreign
born persons who violate U.S. immigration law.
While determinations made by the Department of State are made
independently from the decisions of the Department of Homeland Security,
these two agencies now advise the other, a striking change from the
independent decision making of the former INS and consulates. The
Department of State, whose expertise is committed to foreign policy,
advises the Department of Homeland Security as to changing conditions in
the world. The Department of Homeland Security, whose expertise is
committed to U.S. national security, advises the Department of State and
the consulates regarding security concerns within the United States.
This increased review adds further complexity to an already complex area
of law.
Finally, the Department of Justice oversees the Executive Office
for Immigration Review, consisting of over one hundred immigration
courts and an administrative appellate board called the Board of
Immigration Appeals, (the BIA or the Board). Within immigration courts,
foreign born persons are charged with violating the Immigration and
Nationality Act making them subject to being removed from the United
States, they can examine evidence against them, they can produce their
own witnesses and evidence, they can contest charges, and finally, if
relief from removal is available under the Act, they can apply to remain
in the United States. However, removal proceedings are to be avoided
because windows for relief are narrow. The BIA receives appeals from
decisions of the Immigration Judge. BIA appeals are filed either by the
foreign born person or the Department of Homeland Security. The BIA also
publishes precedent decisions as guidance for following decisions.
However, a BIA decision may be overturned within a federal court of
appeals, the highest courts in the U.S. under the Supreme Court.
Of the many sources of law contributing to the making immigration
law, the Immigration and Nationality Act (the Act or the I.N.A.)
provides the foundation, that is constantly changing as an on-going
written work of Congress. The Department of Justice, the many divisions
of the Department of Homeland Security, and the Department of State
interpret the Act and issue their own set of regulations to provide the
public with instructions on how to comply with the law, providing these
agencies with instructions on how to uniformly govern. In addition to
statutes and regulations, both agencies provide themselves with their
own internal policy directives, in the form of memorandum, cables and
letters. Immigration law is thus a body with many heads, and the
complexities that result make it important for a non-citizen of the
United States to work with an immigration attorney who is able to
explain U.S. immigration law and navigate through its complexities to
enable the non U.S. citizen to make informed and comfortable decisions
regarding his future in the United States.
1 This is not a comprehensive review of
immigration law. It is designed to give the casual reader a panoramic
overview, and it is not expected that the reader will master the
complexities of Immigration and Nationality law. Furthermore, nothing in
this article or associated pages, documents, comments, answers, e-mail,
articles or other communications should be taken as legal advice for any
individual case or situation. This information is intended to be general
and should not be relied upon for any specific situation. For legal
advice, consult an attorney experienced in immigration law."
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WHAT IS A
VISA? WHAT IS LEGAL STATUS?
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A visa is a permit to apply for
admission to the United States, issued by the U.S. consulate usually in
the applicant’s home country. However, a visa can also be issued to
someone who finds it convenient to apply for a visa located at a U.S.
consulate in another country apart from his or her own country. It is
issued in the form of a stamp on the applicant’s passport, which enables
the person to travel to the U.S. Visas may be issued for single or
multiple entries.
Legal status is granted by the DHS upon inspection and admission to
the United States. If a visa holder never travels to the United States,
they never need to obtain legal status. A visa does not guarantee
admission into the U.S. Upon arrival at a U.S. port-of-entry, which can
be an airport, a seaport, or a roadside inspection station, a DHS
officer inspects everyone and conducts a brief interview to determine
whether to grant or deny admission upon determining whether or not the
applicant for entry responds to questions with answers that are
consistent with his or her visa. All persons who are not U.S. citizens
receive a more thorough inspection than U.S. citizens, who have an
unrestricted right to enter and remain in the U.S., subject to its
laws.
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Types
of Visas |
Visas are divided into two (2) general categories:
non-immigrant visas, allowing for travel to the U.S. for a specific
purpose and for a limited period of time, and immigrant visas, allowing
for travel to permanently reside in the U.S. limited only by the
requirement that the immigrant abides by the laws of the U.S., including
the Immigration and Nationality Act.
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| Non-immigrant visas permit admission by
the INS with non-immigrant status. |
Upon traveling to the U.S. with a non-immigrant visa, an
applicant for admission with non-immigrant status is issued Form I-94
(Arrival/Departure Record) by an Officer of the BTS, showing the date,
place of arrival, type of visa, and the length of time the person may
remain in the U.S. Form I-94 provides evidence of admission with lawful
non-immigrant status, which is defined by the category of visa issued to
travel to the U.S. As earlier mentioned, the DHS officer makes a
separate determination as to whether or not a person intends to comply
with the purpose of the visa he or she has been issued, which was used
to travel to a port of entry of the U.S. Such purposes include temporary
visits for business or pleasure, professional or specialized employment,
investment, study, religious missions, and artistic performance, among
many others.
When the foreign born person departs from the United States, he or she
must surrender Form I-94 to the airline representative prior to boarding
an outbound flight or cruise or to an immigration or customs officer if
he departs to Canada or Mexico beyond 25 miles of the U.S. frontier. A
person who stays past the date indicated on his or her Form I-94 without
timely applying to extend status or change to another non-immigrant
status, falls out of legal status, will have his or her visa cancelled,
and will be subject to removal (a term previously known as deportation)
if apprehended by DHS authorities.
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Immigrant visas permit admission
by
the INS with immigrant status. |
Permanent or immigrant visas allow the person to live
and work in the U.S. permanently. The person is admitted as a permanent
resident and is later issued an Alien Registration Receipt Card or what
is more popularly known as “Green Card” (Form I-551). It is important to
know that permanent residence means that one IS permanently residing in
the United States, and once someone is outside the U.S. for more than
six months, the INS may inquire as to the intent of the non-citizen to
permanently reside in the United States. It is therefore very important
that a permanent resident planning a prolonged trip outside the U.S.
take the necessary steps to demonstrate to the INS upon returning to the
U.S. his or her intent to continue to reside in the United States.
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| Penalties are severe for violating U.S.
immigration laws. |
Persons violate U.S. immigration law and are
subject to removal through several activities: being present in the
United States without having been inspected or admitted, (having entered
without inspection), overstaying permission to remain in the United
States, violating the terms and conditions of their non-immigrant
status, having been criminally convicted or committed other bad acts,
committing fraud or deceit in being admitted with non-immigrant or
immigrant status, being likely to go on welfare upon arrival in the
United States, involvement in terrorist activities or activities deemed
against national security. This is far from a complete list.
Furthermore, persons who commit many kinds of crimes after becoming
lawful permanent residents may suffer immigration consequences to their
criminal convictions, which are much more serious than the punishment
imposed by the criminal court.
It is therefore incumbent upon every non-citizen to avoid any kind of
behavior that would lead him or her to be placed before an immigration
judge in removal proceedings to face being ordered removed from the
United States. Furthermore, if accused of committing a crime, the
non-citizen defendant needs help not only from a criminal defense
lawyer, but also a skilled immigration lawyer to ensure that immigration
consequences of a criminal conviction are minimized.
As a final note to this overview, another lingering penalty may be
suffered by persons who depart from the United States after being
unlawfully present, a term that includes both non-immigrants who
overstay their Form I-94 and persons who have illegally entered the
United States. Such foreign born persons who have been 180 days or more
unlawfully present will not be allowed re-admission for either three
years if unlawful presence from one's last admission until departure
totals 180 or more days. Similarly, ten years inadmissibility is imposed
for persons unlawfully present for one year after a most recent
admission and prior to a subsequent departure.
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PUBLIC HEALTH WAIVERS
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Persons with serious diseases often desire
to immigrate to the United States. Whether a person is immigrating based
upon employment, investment, or family relationships, immigration laws
prevent from immigrating persons who have “diseases which would pose a
health threat to the United States”, including but not limited to
tuberculosis, leprosy, and the HIV virus known as AIDS.
Such unfortunate persons are also suspect of trying to receive
public assistance in their medical treatment. Yet, through a provision
in the immigration laws known as a 212(g) waiver, sick and suffering
persons can join immediate family members in the United States and be
supported by them. After entry, the sponsoring family can finance the
application of modern medical and public health practices for the
benefit of the infirm immigrant and for the good of public safety.
To qualify for a 212(g) waiver, the immigrant visa applicant needs
to be the spouse or unmarried son or daughter of a citizen or permanent
resident, or the parent of a son or daughter who is a citizen or
permanent resident and is twenty-one years of age or older. Applicants
who are immigrating through a brother or sister, or through
employment-based visas may also seek a 212(g) waiver if they have a
communicable disease. Yet, to qualify for the 212(g) waiver, these
applicants must have the required family relationships mentioned above.
In applying for a 212(g) waiver, Form I-601, Application for Waiver
of Grounds of Excludability, must be submitted at the conclusion of the
immigration process. There is no fee for applicants with tuberculosis.
Persons with other diseases of public concern must pay a proper filing
fee, either by pre-printed personal check with the name of the applicant
or by money order, but never in cash. The fee is non-refundable even if
the applicant is denied the waiver.
Form I-601 contains special provisions for an applicant with active
tuberculosis or suspected tuberculosis, as described immediately below.
The requirements for a waiver for tuberculosis are the focus of this
writing. Similar requirements exist for a 212(g) waiver that is based
upon mental retardation, mental illness or other “disease which would
pose a health threat to the United States.” These shall not here be
elaborated upon here for brevity’s sake.
The applicant with tuberculosis must promise in writing to do four
things: 1) go directly to the physician authorized by another government
agency-- the Division of Quarantine of the Centers of Disease Control
(CDC) of the U.S. Department of Health and Human Services, 2) present
the X-rays used in the visa medical examination as proof of the
sickness, 3) submit to all of the requirements of the physician, and 4)
remain in treatment until discharged by the physician.
Also on Form I-601, the applicant must have his personal physician,
military hospital, or public or private health care facility, or the
local Health Department, promise in writing to provide all necessary
treatment. Sometimes the local State Health Officer must endorse the
application where there is no prior on-going record of treatment by the
selected physician.
The place in which Form I-601 is sent depends upon where the
applicant resides. If the immigrant is applying for a visa from
overseas, the application must be submitted to the U.S. Consul, who then
sends it to the nearest foreign office of the Bureau of Citizenship and
Immigration Services (CIS), formerly the Immigration and Naturalization
Service (INS). It is the CIS that makes the decision as to whether or
not to grant or deny the waiver. If the applicant is in the United
States, the application is submitted to the CIS office, which conducts
examinations for all intended immigrants who live in the same area where
the applicant will apply to adjust status to permanent residence.
The local State Health Officer in coordination with federal CDC
authorities receive periodic reports from the physician or medical
facility taking care of the immigrant. This ensures the protection of
public safety and the continued care of the immigrant.
To address public health concerns, it is prudent to begin treatment
as soon as the decision is made to immigrate the sick relative. Thus,
when Form I-130, the Family Based Immigrant Visa Petition is submitted,
the intending immigrants will have already been in remission with the
tuberculosis contained.
After routine approval of the Form I-130, the waiver application
will be reviewed when the immigrant is ready to attend a consular
interview and immigrate (if outside the United States) or adjust status
to permanent residency (if inside the United States). The passage of
time between the filing of the I-130 and the final examination process,
which accompanies the grant of permanent residency will allow the
immigrant to no longer be a serious public health concern.
An affidavit of support, Form I-864 or Form I-134, is required to
prove that the infirm immigrant will not be seeking government
subsidized medical treatment. This affidavit should be accompanied by an
extensive insurance policy or proof of adequate income to pay for
medical treatment.
Many citizens and permanent residents need no longer be apart from
their sick family members. With the assistance of an attorney who is
attentive, knowledgeable and competent with immigration concerns, the
sponsoring relative can personally oversee and participate in the care
of their beloved infirm family members.
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