IMMIGRATION LAW. Immigration Law Volpp Fall 2009

Transcription

1 IMMIGRATION LAW General Policy Issues 1. Should we follow a hard on the outside, soft on the inside model? a. Should there be a SOL on deportation? 2. What is it in the law that gave us access to be in the country? 3. disaggregate immigration from national security paradigm 4. Who are foreign-born US residents? a. 1/3 naturalized citizens b. 1/3 LPRs c. 1/3 undocumented 5. Are any immigration controls morally defensible? 6. What should be the mission of immigration policy? Strategies to achieve it? 7. What are the consequences of immigration? Of immigration policy? 8. Which family-based and labor-based priorities are optimal? 9. Should national origin play a role in the immigrant selection? 10. How many/which refugees, asylum-seekers? 11. Criteria for nonimmigrant visas? 12. Hierarchy of rights: a. Citizens b. LPR c. Nonimmigrant d. Undocumented i. Who is closest to the citizen in terms of legal status defines who has most rights; does this make sense? ii. What about doing it in other ways, eg: 1. duration of presence 2. strength of ties/stakes a. relationships b. home ownership c. employment d. children e. community ties 3. status (supra) 4. At different times, different values trump Institutions Who regulates immigration? 1. Used to be state/town-regulated, not federal a. Colonial legislatures passed laws excluding immigrants (paupers, criminals, members of unpopular religious sects) 1

2 2. Federalization began with concern about limiting Asian immigration 3. Homeland Security (most former INS responsibilities here; issues federal regs, 8 CFR) a. Bound by BIA decisions, AG modifications of BIA decisions b. Border patrol split into two programs i. Enforcement 1. CBP border enforcement (incl. inland ports of entry (airports)) 2. ICE interior enforcement. Investigations, intelligence, detention, some parts of deportation process, registration of noncitizens, etc. ii. USCIS service. Applications for immigration benefits throughout the US and a few offices overseas c. Criticisms: i. Too much emphasis on enforcement ii. Underfunded (everyone agrees) 4. DOJ (issues federal regs, 8 CFR) a. EOIR (Exec office of immig review): Adjudication of removal proceedings. 3 units hq in Falls Church, VA: i. Office of Chief Immigration Judge (coordinates work of immigration judges throughout US, who preside over removal hearings) 1. Immigration judges often have a history of working for immigration enforcement 2. SF is the most immigrant-friendly court; proceedings are inconsistent across regions 3. if person loses, goes through BIA proceedings, still under DOJ ii. BIA: appeals from immig judges and USCIS decisions 1. AG can review these decisions 2. Appeals go to federal circuit courts a. 41% of workload before 9th circuit is immigration cases 3. decisions binding on immig judges & DHS officers iii. OCAHO (Office of Chief Administrative Hearing Officer): evidentiary hearings re: unauthorized employment of noncitizens, job discrimination b. Department of State i. Issues/denies visas to people outside US (under DHS review) ii. Educational exchanges iii. Refugee affairs c. Department of Labor i. Employment-based visas d. Dept of Health & Human Services i. ORR: unaccompanied noncitizen children 2

3 ii. Public Health Service: health-based admissibility decisions Major laws History of both qualitative and numerical restrictions : convicts, prostitutes barred : Chinese Exclusion Act (repealed 1943); act that bars lunatics, idiots, convicts, ppl likely to be a public charge : literacy test, Asiatic barred zone : allows deportation of subversive aliens w/o time limit : introduction of national quotas (made permanent in 1924) 6. INA ( amendments) a. Title 8 of US code : refugee act : immigration act : Antiterrorism and effective death penalty act (AEDPA) (new crime-related deportation grounds) : IIRIRA 11. Homeland Security Act (2002) Dissolves INS, codifies AG s power to direct & regulate EOIR, incl 1. The Constitution & Immigration Federal immigration power 1. Constitution has plenary power over immigration; its decisions on a matter are final. a. E.g., it can discriminate in ways that would be illegal in domestic law, or restrict speech 2. Evolution of plenary power doctrine a. SCOTUS strikes down individual states attempts to exclude aliens b. SCOTUS upholds federal exclusion statute under congressional power to regulate international commerce c. SCOTUS upholds federal exclusion power based on inherent sovereignty of any nation (not based on Constitution) d. SCOTUS adopts plenary power doctrine e. SCOTUS extends, reaffirms, but also qualifies plenary power doctrine 3. Rationales behind plenary power doctrine a. Political question (foreign affairs) b. Noncitizen is a guest not a full member of society (implies privileges, not rights) c. Constitutional protections would give citizens unfair advantage bc they already have protections under intl law d. Noncitizens lack allegiances needed to merit Con law protection 3

4 e. Inherent sovereignty f. Constitution inapplicable outside US (exclusion only) g. Deportation of certain noncitizens in retaliation for US citizens sent abroad to fight communism 4. Phase 1: State regulation under the Commerce Clause a. First cases deal with head taxes imposed by states on ships bringing ppl i. Passenger Cases (1849): Can people be objects of commerce? Maj. Y. Diss: only if they are slaves. ii. Henderson v. Mayor of New York (1876): Commerce includes navigation (the way people get here), and labor (what they bring) 5. Phase 2: SCOTUS upholds federal exclusion statute under commerce clause a. Head Money Cases (1884) first time SCOTUS does this i. Related theory: states that exclude immigrants also impact commerce with other states (since costal states can deprive interior of labor); therefore it also relates to federal power to regulate interstate commerce b. Naturalization Clause: Art 1, Sec 8: Congress authorized to establish a uniform rule of naturalization. i. BUT, does this mean Congress can regulate admission? c. War Clause: Art 1 Sec 8: Congress authorized to regulate alien enemies. i. BUT, what about alien friends? 6. Phase 3: Inherent power of sovereign state a. Implied Constitutional Powers i. Chae Chan Ping v. US (Chinese Exclusion Case). SCOTUS, Laborer returning after passage of Chinese Exclusion Acts is excluded. Argues that the Act violates the Constitution (Congress does not have power to enact such a law). Rule: Jurisdiction over own territory is incident to every independent nation. Presence in US for noncitizens is a revocable license. Dicta: Inability to control own territory is subjugation to another power. Political question/foreign affairs. Congress immigration decisions not subject to judicial review. ii. Ed. Note: perhaps SCOTUS is just making policy here. There doesn t seem to be much actual constitutional basis for a federal immigration power. But it seems like a good idea to have a uniform rule. (Counterargument: immigration disproportionately affects certain states; they should be allowed to self-regulate) 1. Q: Is immigration really a foreign policy question? 2. alternate theories: a. Constitutional intent to put federal govt on equal footing with that of other countries (which do exclude noncitizens) b. Framers must have intended to give feds power to define who we are as a people. 4

5 c. BUT, there is evidence that specific framers thought that this should be a state power (p. 127). b. Chinese exclusion i. Very few Chinese outside West Coast;; Congress believed CA s racist propaganda ii. China not considered a great power iii. California used to be a swing state iv. After 1876, Chinese exclusion analogized to de jure discrimination against blacks, so West Coast and the South allied in Congress v. SCOTUS colludes, with racist language in Chew Heong (1884) (pp ) c. Residual state power i. Federal legislation preempts state legislation. But where there isn t fed legislation, (ie, pre-20th century), why couldn t states legislate? 1. policy: need for uniform admission policies 2. Policy: don t want states to piss off our allies (p 131) ii. Remaining scope of state power is unclear iii. Policy: What constitutes immigration regulation vs. other regulation of noncitizens? Constitutional Rights of Immigrants: Procedural due process 1. Ekiu v. US (SCOTUS 1892). Japanese woman joining her husband excluded because she may become a public charge. SCOTUS characterizes this as part of foreign relations, war power, naturalization. Rule: Judiciary cannot review decisions to exclude people who have never been admitted to the U.S. No due process for such people. a. Note: courts have sometimes extended some con law protections to citizens and even noncitizens living abroad. P Fong Yue Ting v. US (SCOTUS 1893). Chinese laborers cannot produce white witness to attest to residence prior to Chinese Exclusion Act. Challenge constitutionality of white witness requirement. Reason for requirement: Chinese will not be reliable witnesses for each other. Also, they do not take the oath seriously. Deportation is not punishment; presence = privilege. Revocable license theory. Under Ekiu, the political branches have power to exclude; dissenters do not like the conflation of exclusion and deportation (people w/in the US are subj to Con law). Rule: Unreviewable deportation, no due process. (later rev d) a. Still good law insofar as holding that international law permits deportation of even lawfully admitted immigrants, and that US lodges that power with fed govt. b. Brewer dissent notes that person (5th amendment) protects everyone, holds that person (14th amendment) should, too. Views deportation as punishment. 5

6 i. Due process required even when punishment is not at stake (Deprivation of life, liberty, property. Property = legitimate claim to property, not just unilateral expectation of it.) ii. What process is due? Balance 3 Eldridge factors: 1. private interest affected by the action 2. risk of erroneous deprivation of that interest through the procedure used/probable value of additional safeguards 3. Govt interest (eg administrative burdens) in not offering those safeguards c. Field dissent notes that we shouldn t copy other countries backwards laws (or their model of sovereignty, ie, kings); feels that punishment (for failing to obtain proof of residence) is disproportionate. d. Question: Think about if/how this is foreign policy. Congress here is antagonizing a foreign nation in the process of pursuing domestic goals. e. Alternate arg for fed deportation power: if there is federal exclusion power, there must be fed deportation power bc otherwise inadmissible aliens would enter surreptitiously.hints at deportation as a remedy for errors in admission. 3. Modern case law: You get due process in admission/exclusion decisions, but due process is whatever Congress says it is. Knauff v. Shaughnessy (SCOTUS 1950) Caveat: some returning LPRs are not considered to be seeking admission. 4. Mezei (SCOTUS 1953): Rumanian citizen kept on Ellis Island indefinitely. Even as previous LPR, held to be seeking admission bc left for 19 months w/o seeking reentry papers. Rule: Even when exclusion results in indefinite confinement (e.g., because no other country will take the individual), there is no right to due process beyond what Congress requires. a. Jackson dissent: We are depriving Mezei of liberty w/o due process. (5th amendment violation). i. Procedural due process is more important, less flexible than substantive due process. b. Detention of excluded noncitizens generally: i. Marielitos detained indefinitely; DOJ releases them on administrative parole; several violated terms of parole or committed crimes, were taken back into custody. Some still detained indefinitely. ii. Haitians asylum-seekers detained for years bc Reagan doesn t believe them; admin backlog in processing claims. iii. Suspension clause bars suspension of habeas, even at Gitmo. Rasul v. Bush; Boumedine v. Bush. Does this extend to excludable noncitizens who cannot be deported (eg, Mezei, Hatians, Marielitos)? P. 169 iv. See also Martinez infra. 5. Kwong Hai Chew (SCOTUS, pre-mezei): LPR seaman working on a U.S. ship for 3 months not seeking admission ;; cannot be excluded w/o due process. 6

7 6. Landon v. Pasencia (SCOTUS 1982): LPR returning from 2-day trip to Tijuana, accused of smuggling in undocumented people, still entitled to due process. Only a lengthy absence, not a nefarious purpose/activity, would strip a person of due process rights. a. Policy: Since procedural due process doesn t change substantive criteria for entry, why not hold that every noncitizen applying for US border is entitled to procedural due process? i. Resources? ii. Deterrent for frivolous attempts to enter? But there are other kinds of deterrents, eg. Expedited removal 7. Yamataya v. Fisher (Japanese Immigrant Case), SCOTUS, Woman admitted into the US, but four days later deported on grounds of inadmissibility at the time of admission based on likelihood to become a public charge. Holding: Once present in the US, noncitizens have the right to procedural due process, as defined by Congress within constitutional limits. Y loses bc Ct believes that she received due process. a. Due process access to an interpreter (crazy. p 174-6) b. Court sets aside issue of whether due process applies to undocumented people, those here legally for a short time c. Yamataya turns on length of presence (Was found to be here illegally; wasn t here long enough to establish stakes) d. Deportation is functioning as a corrective to exclusion e. Good law: people facing removal get due process, regardless of status/stakes. 2. Harisiades v. Shaughnessy. SCOTUS Congress enacts legislation rendering deportable Commies (and others who were members of organizations advocating the violent overthrow of the government). Holdings: 5th Amendment (due process) does not invalidate this Act. Ps have chosen not to naturalize they can t enjoy protections in their countries AND in ours; US is sending its citizens abroad to fight communism. 1st Amendment does not protect speech that incites violence. Ex post facto: applies only to criminal law, not immigration. a. Dissent: LPRs are treated as citizens insofar as guarantees of life, liberty and property are concerned. To deny them the rights to change their opinions and hence banish them from the country is contrary to our national philosophy. b. Grounds for exclusion must be rational: i. Jackson: immigration largely immune to judicial review; the rational review it gets is that there is a security threat from the Soviet Union ii. What does it mean, largely immune from judicial review? Would it have to be totally baffling before it was struck down? 1. Court minimally evaluates the objective;; doesn t really evaluate the means to achieve the objective. iii. Ex post facto: Stands for proposition of largely immune from judicial review 7

8 iv. New reasons floated in this case: 1. you declined the chance to naturalize;; don t complain that you don t have the rights of a citizen, and a. Policy: is this persuasive? 2. Intl law gives you other protections not avail to citizens (right to diplomatic intervention, not to participate in a war against country of one s nationality). a. Policy: is this really an unfair advantage to have on top of due process? v. Deference to Congress: maybe Court wants to speed up dispositions and discourage litigation. vi. Stare Decisis: Princple is based on: 1. increasing predictability 2. equal treatment 3. judicial efficiency a. How relevant are these principles to immig context? 3. First Amendment: a 1969 decision says you can advocate lawless activity as long as you are not inciting imminent lawless action. P 191 a. Based on this ruling, SCOTUS strikes down INA provision making noncitizens who promote communism/anarchy deportable b. WIN: Tariq Ramadan finally gets his H1B based on citizens first amendment right to hear him speak. 4. Selective prosecution: not a defense for people here illegally (and maybe not even for LPRs) a. Deportation is not punishment b. Don t want to disclose foreign policy secrets c. These cases would clog the courts d. Limitations on this holding: i. Left open discrimination so outrageous that forgoing considerations could be overcome ii. 1st Amendment claims in removal hearings not completely barred iii. Selective prosecution based on membership in terrorist org OK iv. SCOTUS might not have meant to ban these claims for LPRs 5. Turner v. Williams SCOTUS Statute can exclude anarchists based only on their beliefs without any activity promoting these beliefs. 6. Kleindienst v. Mandel SCOTUS Citizens claim that exclusion of communists violates their due process. SCOTUS says exclusion is constitutional under Congress plenary power as long as AG has facially legitimate and bona fide reason to do so (lawyers successful at claiming no such reason exists). a. Counterterrorism laws have added new removal grounds based on association + other protected activities. 7. Fiallo v. Bell SCOTUS Child cannot derive immigration benefits from citizen father not married to noncitizen mother. Gender, legitimacy both usually trigger intermediate scrutiny, but court says Congress is largely immune from review on immig decisions. 8

9 a. Important dictum: limited judicial responsibility under the Constitution to review even Congress admission and exclusion decisions. P. 189 i. Implication: substantive admission criteria normally subject to some review (how much? Rational basis?) ii. Fiallo loses bc there is a rational reason for the distinction: false paternity claims 8. Does plenary power (and lack of review) over immigration extend to citizenship? 9. Does plenary power (and lack of review) over immigration extend to executive branch decisions (p. 190 yes.)? 10. Francis v. INS. 2nd Cir Statute that allows discretionary relief for returning LPRs but not LPRs who face deportation w/o leaving lacks rational basis. a. 2nd Cir uses very fuzzy logic to get around Harisiades language that no review is permitted. b. Francis adopted by BIA. Francis relief still avail to those deportable bc of pre-1996 guilty pleas i. BIA says it can t decide con law questions. Where does it get authority to adopt Francis? ii. Many other lower courts + SCOTUS have applied rational-basis test to INA, always find it rational. 11. Manwani v. DOJ (WDNY 1990). Immigration Marriage Fraud Amendments unconstitutional bc creates presumption of marriage fraud w/o chance to rebut the presumption; results in deprivation of fundamental right of marital unity. (Eldridge factors?) a. Lesson: Always say that the defect denies procedural, not substantive due process. b. Manwani court also says IMFA violates EP. Fundamental right triggers strict scrutiny; IMFA fails bc means not closely tailored to end. 12. Zadvydas v. Davis (SCOTUS 2001). INA241a6, which permits detention beyond initial 90-day period for deportable noncitizens, interpreted to include a reasonable time limitation of 6 months after which the govt has to rebut presumption that removal is not reasonably forseeable. (The period the Court says is reasonably necessary to bring about his removal.) a. Reasoning: deprivation of liberty requires criminal trial w/ adequate procedural protections OR finding that narrow specs have been met (e.g. harm-threatening mental illness) such that need to protect society outweighs individual s constitutional rights b. Prevention of flight not a good enough reason to justify indefinite detention in context of deportation. Mezei only governs exclusion. c. Plenary power subject to constitutional limitations. d. Once removal is no longer reasonably foreseeable, continued detention not authorized. e. Dissent: INA 241a6 treats inadmissible noncitizens on the border the same as deportable criminal LPRs;; you can t construe the statute differently for the two groups. i. Other arguments: 9

10 1. separation of powers (courts shouldn t rule on this) 2. gets in the way of negotiations w/ foreign powers 3. forcing dangerous aliens upon the community 4. promotes dilatory and obstructive tactics, removes incentive to seek repatriation 5. removable noncitizen has lost all right to be here; similar status to inadmissible person at the border 6. removable noncitizen s liberty interest subordinate to citizens interest in own safety f. Notes: i. What s left of plenary power post-zadvydas? 1. no judicial deference left? 2. Judicial deference as a matter of degree greater the deprivation of individual liberty, lesser judicial deference? 3. Z only follows line of cases recognizing PDP in expulsion cases (though habeas involves substantive interest in liberty)? 4. Court only attacks plenary power in context of detention? ii. Gutted in the regs. DOJ says: 1. If removal is found likely, detention can continue, reviewable every 6 mos. 2. Certain noncitizens perpetually detainable even if removal not likely: a. Highly contagious diseases b. Adverse foreign policy consequences c. Significant nat l security/terrorism risks d. Specially dangerous bc crimes, mental illness i. BUT, 9th & 5th Cirs say reg re mentally ill not valid bc public already protected through involuntary civil commitment of dangerous mental patients 3. Imposes conditions of release that it knows detainee cannot meet, eg high bond iii. USA PATRIOT Act authorizes indefinite detention of aliens, including LPRs, whom AG has reasonable grounds to believe inadmissible/deportable on terrorism, nat l security grounds. INA236A1,2,6. (renewable 6 month increments until detainee removed or found not removable.) g. Clark v. Martinez (SCOTUS 2005). Extends Zadvydas holding to cover those who are inadmissible at our border. (e.g.: Marielitos) 13. Demore v. Kim (SCOTUS 2003). SCOTUS upholds mandatory detention for: a. criminal noncitizens b. Prior to removal hearings i. Distinguishes Zadvydas bc in that case there was no realistic possibility of removal; statutory purpose of facilitating removal no 10

11 longer being served; in this case, statutory purpose is being served, detention is temporary. ii. Dissent: 1. 5th amendment permits requires strict scrutiny re: pre-trial detention; this case fails a. He should get an individual bail hearing before being locked up 2. Kim has not been conclusively determined to be deportable a. Detention before removal order may impede his ability to defend himself against deportation. 3. Short detention period cited by maj not representative of contested removal hearings 4. Breyer: use federal bail standards. Canons of interpretation: Where are we now? 1. Zadvydas & Martinez: c. courts interpret immigration statutes favorably to noncitizens d. avoid constitutional questions e. avoid harsh consequences of plenary power doctrine, especially where prolonged detention is contemplated. Cf. Demore v. Kim. 2. Demore v. Kim: f. Recognizes noncitizens rights to habeas corpus 3. Yamataya: g. Right to due process in expulsion 4. Plasencia: h. Right to due process for exclusion of returning LPRs 5. Francis: i. Where you can characterize it as either substantive due process or procedural due process, opt for procedural due process 6. Substantive due process: apply rational basis test 7. First amendment protections? See pp Chadha j. Separation of powers doctrine trumps plenary power doctrine. Only time SCOTUS ever struck down immigration statute (House passed personalized nullification of stay of removal) based on constitutional grounds. 14. Simulation exercise a. #1- Maria i. Statute doesn t define what Latino descent means, apply avoidance canon. ii. Would fail rational basis because it s too broad;; bars even people from Spain. Doesn t serve any rational purpose, violates substantive DP (exclusion). Racial classification, which is offensive and without valid purpose. 11

12 iii. PDP around idea of Latino descent: if so vague, no notice, difficult to enforce, then raises procedural DP questions. b. #2- Melzer i. Many of same arguments as Maria. ii. Add: targeting nationals of Spanish-speaking places doesn t make sense to include him since he s of German ancestry. Irrational because wouldn t lessen Latino population. iii. Gov t: Chae Chan Ping. No power to review, racial classifications can be acceptable. Minimal rationality. Constitutional Rights of Immigrants: Substantive due process Immigrant Priorities 1. All noncitizens categorized as either immigrants or nonimmigrants 2. Nonimmigrants: INA 101a15 a. Students b. Tourists c. Business visitors d. Intra-company transfers etc fill in 3. Immigrants: noncitizens that cannot show that they fit in one of the nonimmigrant categories a. LPRs (green card holders) i. Green cards: ID docs, prove eligibility to work, entry documents for returning from temporary trips abroad 1. Require periodic renewal ii. May remain permanently as long as they refrain from deportable misconduct iii. May work iv. Qualify for some government benefits v. May become citizens (See ch 13) vi. Can lose LPR status by leaving the US too often, for too long, or with the wrong intentions Admission of Immigrants: Overview 1. Immigrant must affirmatively fit within one of the admission categories 2. Quotas are ceilings, not floors Immigrants exempt from general quotas 1. Immediate relatives: Spouses, parents, and children of U.S. citizens a. EXCEPTIONS: i. for parents of citizen son or daughter, the citizen must be at least 21yo. INA 201b2Ai ii. Children must be unmarried and under 21. INA 101b1. 12

13 2. LPRs returning from temporary stays abroad not counted against quotas. INA 101a27A, 201b1A 3. Certain former U.S. citizens: INA 101a27B, 201b1A 4. Children born to LPRs temporarily abroad: INA 201b1(C,D,E) 5. Refugees (exempt from general quotas, but subject to own numerical systems) 6. Parolees (today generally used ppl to enter temporarily for urgent personal reasons or to allow some applicants to remain at large pending determination of admissibility. Parole admission. 212d5A 7. Congressional ad hoc admissions (See p. 252) Immigrants subject to general quotas In all categories, applicants considered first-come, first-serve. Clock starts with filing of first relevant document (called priority date ). When a country is set to reach its limit, that country s visas are prorated amongst the different kinds of visas allotted. 202e. Prorating means that some lower-preference immigrants will jump ahead of higher-preference ones. Backlogs. Note that there are backlogs due both to per-country quotas AND administrative processing backlogs. 1. Family-sponsored immigrants. INA 203a. a. Formula: 480K-[# of immediate relatives + children of LPRs born abroad admitted in the previous year] + unused employment-based visas from previous year. INA 201c1Aii. Regardless of # this yields, floor is 226,000. b. See also Family Sponsorship below. 2. Employment-based. INA 203b. a. Formula: 140,000 + unused family visas from previous year. (crosshatched with family visas; see p. 254 para 3) 3. Diversity immigrants. INA 203c. a. Annual ceiling currently 50,000 (to offset NACARA); statutory ceiling is 55,000. INA 201e. Per-country limits 1. Immigrant is charged to country in which she was born (some exceptions). INA 202b. 2. Family sponsored + employment immigrant visas from any country cannot exceed 7% of worldwide limit. Colony of foreign country: 2%. INA 202a2. a. Immigrants exempt from worldwide quotas also exempt from per-country limits. b. 75% of 2A floor (see below) exempted from per-country limits. 3. Diversity visas: Max 7% from any one country/year. 13

14 4. Employment-based immigrants exempt from per-country limits during calendar quarters in which there are not enough qualified applicants to use up worldwide limits. INA 202a5A. 5. History a National origins quotas designed to replicate the census patterns of an earlier time b. Immigration almost closed except to northern/western Europe; very little immigration c. 1960s, USSR lots of propaganda encouraging immigration & accusing US of racism; US responds by abolishing preferential treatment, setting same quota for every country d. Formal vs. substantive equality i. Formal equality: equality of process ii. Substantive equality: equality of outcome Family Sponsorship 1. Preference sub-categories (INA 203a): a. First preference: unmarried sons and daughters of U.S. citizens i. Subceiling: 23,400 + visas that 4th-preference applicants don t need. b. Second preference: spouses and unmarried sons and daughters of LPRs. i. Subceiling: 114,200 + visas that 1st-preference applicants don t need, + amount, if any, by which ww family-sponsored ceiling exceeds 226, As: spouses and children (unmarried, under 21, see INA 101b) of LPRs. These get min 77% of 2nd preference visas. INA 203a2. 75% of 2A floor exempted from per-country limits. 202a4. a. Eligible for V-visas. See below. 2. 2Bs: all other 2nd preference immigrants c. Third preference: married sons and daughters of US citizens i. Subceiling: 23,400 + visas that 1st & 2nd applicants don t need. d. Fourth preference: brothers and sisters of over-age-21 US citizens. i. Subceiling: 65,000 + visas that 1st, 2nd, 3rd don t need Employment-based immigrants 1. Preference sub-categories (INA 203b): a. First preference: Priority workers. (28.6% of all employment-based visas, + those that 4th, 5th preference don t need): i. extraordinary ability ii. outstanding professors and researchers iii. multinational executives and managers 14

15 b. Second preference: members of the professions holding advanced (usually graduate) degrees and aliens of exceptional ability. (28.6% of all employment-based visas, + unused 1st-preference visas.) c. Third preference: skilled workers, professionals, other workers who can show their labor is needed in the US. (28.6% + unused 1st, 2nd preference visas). No more than 10,000 (minus some NACARA) may go to other workers). d. Fourth preference: special immigrants. Certain religious workers, longtime employees of US govt. 7.1% of employment-based visas. e. Fifth preference: employment creation. Investment of min $1,000,000 in enterprises that employ min 10 Americans. Up to 7.1% of employmentbased visas. Accompanying, or following to join (any of the preference categories) 1. Spouse or child accompanying, following to join immigrant within any of the above immigrant categories gets the same place in the queue as principle immigrant. INA 203d. 2. No such provision for immediate relative visas (children & spouses of US citizens). 3. Spouse or child must be acquired before principal immigrant s admission as an LPR, unless child is a product of marriage that happens before admission. Afterwards, becomes 2nd preference family visa applicant. 4. accompanying : up to 6mos after issuance of principal immigrant s visa. No limit for following to join. Policy Questions 1. Should there be: a. different preferences, or 1st-come, 1st served? b. Per-country limits? c. Prorating for oversubscribed countries? 2. Which immigrants should get priority? Family Sponsorship Overview 1. Policy: central value of immigration system is family unity 2. Family sponsorship accounts for 80% of immigration to the US 3. Visa Bulletin: helps you predict the likely waiting time a. C= current (no waiting time) b. U= unavailable (annual limits already reached) c. Date: tells you how long those now current had to wait; gives rough estimate of wait time for future applicants 4. Aging out: When an applicant turns 21 or marries while application is pending. 15