Anuj A. Shah, J.D., Ph.D.

1. Background 2. Immigration in Action 3. When the Honeymoon is Over 4. Practical and Ethical Considerations 5. Additional Resources

WE ARE AN IMMIGRANT COUNTRY! Except for the Native Americans, everyone at some point or another immigrated to the United States. Whether a traveler on the Mayflower in early 1600s, or a passenger arriving on an international flight last night at Houston s Intercontinental Airport, for over 400 years, people, much like our parents, or their parents, or theirs, etc., have been coming, and continue to come, to the United States to start a new life and live the American Dream, whatever that looks like for them.

What do Immigration Lawyers do? DO: Assist Foreign Nationals ( FNs ) who wish to come to the U.S. in navigating the complex terrain of Immigration Law so that they, along with their families, when applicable, can enter, stay, live and, often, work in the U.S. lawfully. Do NOT: Work with ladder companies to make taller ladders for people to jump the wall at the border.

Alien or Foreign National Visa Status I-94 Out of Status Immediate relatives Child EWI Priority Date NTA BIA Removal Change of Status Adjustment of Status Lawful Permanent Residence Green Card Naturalization

1. Constitution of the U.S. 2. Statutes 3. Regulations 4. Administrative 5. Court Decisions

a. Congress may enact a Uniform rule of Naturalization (Article I, Section 8); b. Only a natural-born U.S. Citizen may serve as President (Article II, Sec. 1); c. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. (14 th Amendment)

Immigration & Nationality Act of 1952 (INA), 8 U.S.C. 1101 This is the law, which, along with other immigration laws, treaties, and conventions of the United States, relates to the immigration, temporary admission, naturalization, and removal of aliens.

Code of Federal Regulations (CFR): 6, 8, 20, 22, 28, 42 (Section 8 is the one referred to for most types of cases)

Immigration Courts Board of Immigration Appeals (BIA) Circuit Courts United States Supreme Court

Policy Memoranda, Legacy INS and DHS The Players 1. Department of Homeland Security 2. Department of Justice 3. Department of Labor 4. Department of State

a. USCIS The United States Citizenship and Immigration Services is the government agency that oversees lawful immigration to the United States, including the naturalization process. b. CBP The U.S. Customs and Border Protection is the agency under the DHS whose purpose is to keep potentially harmful individuals and their weapons out of the United States. CBP also has a responsibility for securing and facilitating trade and travel while enforcing hundreds of U.S. regulations, including immigration and drug laws. c. ICE Immigration and Customs Enforcement is the bureau of the Department of Homeland Security that enforces immigration laws inside the United States.

EOIR The Executive Office of Immigration Review is the part of the United States Department of Justice responsible for the Immigration Courts and the Board of Immigration Appeals (BIA).

Among its many functions, DOL is involved in the Immigration context to protect U.S. workers in the Labor Certification process, and foreign national workers from potential employer abuse.

The State Department handles U.S. Immigration matters OUTSIDE the United States at designated U.S embassies and consulates for people seeking to enter the United States from abroad.

A. The Nonimmigrant/Immigrant Distinction B. Visa v. Status C. Non-Immigrant/Temporary Visas/Status D. Immigration for Permanent Residence in the United States E. Naturalization

A. The Nonimmigrant/Immigrant Distinction There are two fundamental categories in which people enter the U.S.: Nonimmigrant FNs with a nonimmigrant visa seeking to come to the U.S. for a temporary duration, such as to visit, study, or work. Immigrant FNs who come to the U.S. with an immigrant visa seek to immigrate permanently to the U.S.

Levels of Status 1. Undocumented or Visa Overstay 2. Temporary/Non-Immigrant 3. Asylee/Refugee 4. Permanent/Immigrant (Lawful Permanent Resident) 5. United States Citizen (The Gold Medal-Maybe!)

Undocumented or Visa overstay a. Undocumented Someone who entered the U.S. EWI." EWI is Entry Without Inspection. b. Visa Overstay An overstay occurs when a visitor has remained in the U.S. beyond the expiration date indicated in the individual's I-94 Arrival/Departure card. An overstay will likely make one ineligible for a future visa.

Temporary/ Non-Immigrant Refers to an alien who seeks temporary entry to the United States for a specific purpose. The alien must have a permanent residence abroad (for most classes of admission), and qualify for the nonimmigrant classification sought. Most non-immigrants can be accompanied or joined by spouses and unmarried minor (or dependent) children. Examples: Visitors Students Non-immigrant workers

a. Asylee Asylees are aliens in the United States or at a port of entry who are found to be unable or unwilling to return to their home country of nationality, or to seek the protection of that country because of past persecution or a well-founded fear of future persecution in that country. b. Refugee A refugee is any person who is outside his or her country of nationality, and outside the U.S., who is unable or unwilling to return to that country because of persecution or a well founded fear of persecution.

An LPR is any person that is not a citizen of the United States, but who is residing in the U.S. under legally recognized and lawfully recorded permanent residence as an immigrant. Also known as "Permanent Resident Alien," Lawful Permanent Resident," and "Green Card Holder."

Any individual either born in the United States, or who derived or acquired citizenship after birth, is a U.S. Citizen.

A. Visa A U.S. visa allows the bearer to apply for entry to the U.S. in a certain classification (e.g. student (F), visitor (B), temporary worker (H)). A visa does not grant the bearer the right to enter the United States. The Department of State (DOS) is responsible for visa adjudication at U.S. Embassies and Consulates outside of the U.S.

Sample of a U.S. Dept. of State-Issued Visa to the United States

B. Status Status is the state or condition of a noncitizen s immigration situation while inside the United States. A visitor's immigration status depends on the type of visa s/he used when applying to enter the United States. According to the U.S. Department of State, compliance with the visa's specific requirements will determine whether the foreign citizen is "in status" or "out of status." Failure to Maintain Status Visa violations such as unauthorized employment, overstay or criminal activity can lead to one s falling or being out of status. Both the U.S. Department of State and U.S. Immigration and Customs Enforcement warn visa holders that failure to maintain status can lead to severe consequences such as arrest, removal from the U.S., and ineligibility for future visas. The I-94 Arrival/Departure Card The I-94 card is the document a FN presents in order to evidence her status in the U.S. The I- 94 card serves as evidence that a nonimmigrant has entered legally. It is stamped with a date indicating how long the nonimmigrant may stay for that particular trip. A new I-94 card with a new date is issued each time the nonimmigrant legally enters the United States. (Now automated).

Sample I-94 Card

A large percentage of entrants to the United States come for a stay of temporary duration. Here below is a sampling of the types of categories in which FNs enter the U.S. temporarily: 1. B-1/B-2: Visitors for Business or Visitors for Pleasure. 2. E-1/E-2: Treaty Trader or Investor Visa. 3. F-1/M-1/J-1: Students/Trade School Students/Exchange Scholars. 4. H- 1B: Specialty Occupation Workers. 5. L- 1: Intracompany Transferees. 6. R- 1: Religious workers.

C. Non-Immigrant/Temporary Visas/Status 1. B-1/B-2 Visitors for Business or Visitors for Pleasure. The visitor visa is a type of nonimmigrant visa for persons desiring to enter the United States temporarily for business (B-1) (may come to attend conferences, trainings, visit a U.S. office, and the like, but they may not work for compensation while in the U.S.) or for pleasure, tourism or medical treatment (B-2).

C. Non-Immigrant/Temporary Visas/Status 2. E-1/E-2: Treaty Trader or Investor Visa. The Treaty Trader (E-1) or Treaty Investor (E-2) visa is for a national of a country with which the United States (U.S.) maintains a treaty of commerce and navigation who is coming to the U.S. to carry on substantial trade, including trade in services or technology, principally between the U.S. and the treaty country, or to develop and direct the operations of an enterprise in which the national has invested, or is in the process of investing a substantial amount of capital.

C. Non-Immigrant/Temporary Visas/Status 3. F-1/M-1/J-1: Students/Trade School Students/Exchange Scholars. These visas are for aliens coming temporarily to the United States as participants in a program approved by the Secretary of State for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, or receiving training.

C. Non-Immigrant/Temporary Visas/Status (cont.) 4. H-1B: Specialty Occupation Workers. Companies sponsor and hire FNs on the H-1B visa to effectuate the theoretical and practical application of a body of highly specialized knowledge requiring completion of a specific course of higher education. There is a cap of 65,000 H-1B visas per fiscal year, with another 20,000 available for those with Masters degrees from a U.S. institution.

C. Non-Immigrant/Temporary Visas/Status (cont.) 5. L-1 Intracompany Transferees This visa is for aliens employed for at least one continuous year out of the last three by an international firm or corporation, who seeks to enter the United States temporarily in order to continue to work for the same employer, or a parent, branch, subsidiary or affiliate, in a capacity that is primarily managerial, executive, or involves specialized knowledge. The alien's spouse and minor unmarried children also qualify for the visa.

C. Non-Immigrant/Temporary Visas/Status (cont.) 6. R-1: Religious workers Includes persons authorized by a recognized employing entity to conduct religious worship and perform other duties usually performed by authorized members of the clergy of that religion, and workers engaging in a religious vocation or occupation.

D. Immigration for Permanent Residence in the United States There are a number of ways FNs can immigrate, that is, come to the U.S. and become permanent residents of this country. The primary ways are through family, employment, and the asylum/refugee process. There are several additional ways, as well. We discuss these in turn. 1. Family-Based Immigration 2. Employment- Based Immigration 3. Asylum/ Refugee 4. Diversity Lottery 5. Victims of Abuse 6. Adjustment of Status v. Consular Processing

D. Immigration for Permanent Residence in the United States (cont.) 1. Family- Based Immigration Immediate Relatives: INA 201(b) defines "immediate relatives" to include: 1. spouses, 2. minor children (under the age of twenty-one), and 3. parents of U.S. citizens (if the citizens are at least 21 years old).* This category is reserved for immediate relatives of U.S. citizens, not permanent residents. As mentioned, there is no limit to the number of immediate relative visas that may be issued in this category in any given year.

D. Immigration for Permanent Residence in the United States (cont.) 1. Family- Based Immigration Who can sponsor whom? U.S. Citizens can sponsor: Spouses Parents Children (including adult sons and daughters, married or unmarried), and Siblings Lawful Permanent Residents can sponsor: Spouses Children (Including unmarried sons and daughters over 21).

D. Immigration for Permanent Residence in the United States (cont.) 2. Employment-Based Immigration (INA 203(b)) We want people who are rich and smart! Seasoned Immigration Practitioner

D. Immigration for Permanent Residence in the United States (cont.) 2. Employment-Based Immigration There are a handful of exceptions, but in most cases, to immigrate to the United States under an Employment Based category, an employer has to file a Labor Certification Application with the U.S. Department of Labor for the employee beneficiary. An employer wanting to sponsor a foreign national employee has to show that there are no U.S. workers who are: Qualified Able Willing Available

D. Immigration for Permanent Residence in the United States (cont.) 2. Employment-Based Immigration Employment-Based Categories: (1) EB- 1 (2) EB- 2 (3) EB- 3 (4) EB- 4 (5) EB- 5 - Employment Creation Investor Visa

D. Immigration for Permanent Residence in the United States (cont.) 2. Employment-Based Immigration Employment-Based Categories (cont.): (1) EB-1 (INA 203(b)(1) (No Labor Cert. Required) (a) Persons of Extraordinary Ability (b) Outstanding Researchers/Professor (c) Multinational Executives

D. Immigration for Permanent Residence in the United States (cont.) 2. Employment-Based Immigration Employment-Based Categories (cont.): (2) EB- 2 (a) Professionals Holding Advanced Degrees/Persons of Exceptional Ability (b) National Interest Waiver (NIW)

D. Immigration for Permanent Residence in the United States (cont.) 2. Employment-Based Immigration We want people who are rich and smart! Seasoned Immigration Practitioner Employment-Based Categories (cont.): (3) EB- 3 (a) Skilled Workers (b) Professionals, and (c) Other Workers (4) EB- 4 Certain Special Immigrants (Religious Workers, mainly)

D. Immigration for Permanent Residence in the United States (cont.) 2. Employment-Based Immigration Employment-Based Categories (cont.): (5) EB-5: Employment Creation Investor Visa (a) USCIS administers the Immigrant Investor Program, also known as EB-5, created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. Certain EB-5 visas also are set aside for investors in Regional Centers designated by USCIS based on proposals for promoting economic growth. (b) Investment: $1,000,000 to invest in a new commercial enterprise $500,000 to invest in a USCIS-designated Regional Center

D. Immigration for Permanent Residence in the United States (cont.) 3. Asylum/Refugee (INA 208) An alien must satisfy each of the following four elements in the definition of a refugee created by section 101(a)(42)(A) of the Act: (1) the alien must have a "fear" of "persecution"; (2) the fear must be "well founded"; (3) the persecution feared must be "on account of race, religion, nationality, membership in a particular social group, or political opinion"; and (4) the alien must be unable or unwilling to return to his country of nationality or to the country in which he last habitually resided because of past persecution or his well founded fear of persecution.

D. Immigration for Permanent Residence in the United States (cont.) 4. Diversity Lottery This category was formed by Congress as a category of potential immigrants who are from underrepresented countries and countries adversely "affected" by U.S. immigration regulations.

D. Immigration for Permanent Residence in the United States (cont.) 5. Victims of Abuse There are categories the U.S. government has created to recognize that people may find themselves in highly abusive or exploitative situations. As such, the following are several categories of visas that FNs may acquire if they can prove up their exploitation/abuse within the required legal parameters. A) T Victims of Trafficking B) U Victims of Serious Crimes C) VAWA Violence Against Women Act

D. Immigration for Permanent Residence in the United States (cont.) 6. Adjustment of Status v. Consular Processing A) Adjustment of Status (1) This is the process through which certain aliens already in the United States can apply for immigrant status. Aliens admitted to the United States in a nonimmigrant, refugee, or parolee category may have their status changed to that of lawful permanent resident if they are eligible to receive an immigrant visa and one is immediately available. (2) Adjustment is a technical term of art. If one is a student and wishes to change her status to that of a worker, say, that would be a Change of Status. When one ADJUSTS status, s/he acquires lawful permanent residence in the U.S. (3) Beginning in October 1994, section 245(i) of the INA allowed illegal residents who were eligible for immigrant status to remain in the United States and adjust to permanent resident status by applying at a USCIS office and paying an additional monetary penalty. Section 245(i) is still available, but only to aliens who are/have been the beneficiaries of either a relative or employer petition, or of an application for a labor certification, filed on or before April 30, 2001.

D. Immigration for Permanent Residence in the United States 6. Adjustment of Status v. Consular Processing (CONT.) B) Consular Processing This is the process of applying for a visa in a foreign country through the local, or nearest, U.S. embassy or consulate. For example, when a U.S. citizen marries a person who is not a citizen of the U.S., and that person resides in a country other than the U.S., the noncitizen would need to apply for the Immigrant Visa/Green Card in that country by way of consular processing. NB: Nonimmigrant visa applicants go through consular processing to obtain their visas, as well!

D. Immigration for Permanent Residence in the United States 6. Adjustment of Status v. Consular Processing (CONT.) C) The U.S. Department of State Visa Bulletin Let s take a look at how immigrant visa petitions that are outside the immediate relative category are processed from a time perspective. If you ve heard about the line Foreign Nationals must form, the Visa Bulletin below depicts how that line is conceived.

U.S. Dept. of State Visa Bulletin, May 2014 Family- Sponsored All Chargeability Areas Except Those Listed CHINAmainland born INDIA MEXICO PHILIPPINES F1 08MAR07 08MAR07 08MAR07 15NOV93 01FEB02 F2A 08SEP13 08SEP13 08SEP13 15APR12 08SEP13 F2B 01FEB07 01FEB07 01FEB07 15MAY93 22JUN03 F3 01SEP03 01SEP03 01SEP03 01JUL93 01MAR93 F4 08DEC01 08DEC01 08DEC01 01DEC96 01NOV90

Employment Based Employment- Based All Chargeability Areas Except Those Listed China - mainland born INDIA MEXICO PHILIPPINES 1st C C C C C 2nd C 08MAR09 15NOV04 C C 3rd 01OCT12 01OCT12 15SEP03 01OCT12 15JUN07 Other Workers 01OCT12 01OCT12 15SEP03 01OCT12 15JUN07 4th C C C C C Certain Religious Workers C C C C C 5th Targeted Employment Areas/Regional Centers and Pilot Programs C C C C C

E. Naturalization (INA 301 et seq.) 1.Definition: The conferring of citizenship upon a person after birth. 2.Requirements (listed at INA 316). The most salient:

E. Naturalization 2. Requirements A) Continuous Residence A Naturalization Applicant must be continuously residing in the U.S. for the five years prior to the date of filing of her/his Naturalization Application (3 years if married to and living with U.S. citizen spouse). B) Physical Presence The Applicant must be physically present for at least 50% of the Continuous Residence Period. C) Good Moral Character Applicant must have GMC for the five years prior to the Naturalization process. D) Basic English Proficiency Applicant must understand the English Language, History, Principles, and Form of Government of the U.S. (Administration of brief examination during naturalization interview)

A. Overview B. Inadmissibility and Deportability under the INA C. Some Criminal-Related Matters D. Ineffective Assistance of Counsel

A. Overview Like any attorneys, as Immigration attorneys, we love cases that Come to you on all fours. In other words, a straightforward case that fits into a neat box that we can work on, submit to the government, and get a great result for our clients. Dream on, right? As with probably most other areas of law, that notion is largely a fantasy. When we don t have a fantasy case, which is most of the time, a sizeable bulk of our practice as Immigration lawyers is dealing with clients who have histories of criminal conduct and immigration violations, among other challenges. These challenges require us to engage in detailed analyses of the Inadmissibility and Deportability sections of the INA, as detailed below. Such inquiries usually arise when a FN has had either a criminal history, or a history of immigration violations, or both. Once a FN has been detained by DHS, s/he is issued a charging document, called a Notice to Appear (NTA), outlining allegations and charges against the FN. The charges delineate the basis on which the FN is either inadmissible or deportable.

B. Inadmissibility and Deportability under the INA Inadmissibility INA 212 Health-related grounds 212(a)(1) Criminal 212(a)(2) Security Related Grounds 212(a)(3) Public Charge 212(a)(4) Immigration Violations 212(a)(6) Deportability INA 237 Those who are Inadmissible or Visa Violators 237 Criminal Grounds 237(a)(2) Failure to Register and Falsification of Documents 237(a)(3) Security Grounds 237(a)(4) Public Charge 237(a)(5) Unlawful Voters 237(a)(6)

C. Criminal-Related Matters I. Immigration Detainer Once a foreign national has completed his/her criminal sentence, there is often an Immigration hold/detainer on the FN. That means that rather than be freed, the FN will now be transferred from Harris County Jail, for instance, to ICE Detention. This is the point at which an Immigration attorney needs to get involved, though the earlier the better. II. NTA As noted earlier, this is the charging document issued by DHS, stating allegations against the FN and the charge against the FN that makes her either inadmissible or deportable.

III. Conviction What is considered a conviction for criminal law purposes is distinct from what Immigration Law considers a conviction. Guilty pleas, along with sentences of probation and deferred adjudication, are all considered convictions for Immigration Law purposes. The INA defines conviction as follows: The term "conviction" means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where- (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed. INA 101(a)(48)(A).

iv. Aggravated Felony If convicted of an aggravated felony, a FN, to use a technical term of art, is usually toast. Crimes that fall under the purview of the INA s definition of an aggravated felony are enumerated at INA 101(a)(43). There are several U.S. Supreme Court cases that have discussed aggravated felonies in the Immigration context in the past few years.

Lopez v. Gonzales, 549 U.S. 47 (2006) The United States Supreme Court held that drug possession convictions that qualify as state felonies, but would not qualify as felonies under federal law, are not aggravated felonies as defined under INA 101(a)(43)(B) ("drug trafficking crimes"). In unqualified terms, the Court said, Unless a state offense is punishable as a federal felony it does not count. The Court rejected the government s broad interpretation of what constitutes an aggravated felony and resolved a circuit split.

Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010) In this case, the U.S. Supreme Court held that a second or subsequent simple drug possession conviction does not qualify as an aggravated felony under INA 101(a)(43)(B) ( drug trafficking crimes ) and therefore does not preclude a lawful permanent resident from applying for cancellation of removal. Lopez dealt with a single possession conviction, but after Lopez, Circuit Courts were split on whether a second controlled substance conviction would be a conviction for an aggravated felony. Carachuri determined that it would not.

v. Ineffective Assistance of Counsel The issue of when a Criminal Defense attorney could be found to have provided ineffective assistance of counsel to a foreign national under the Sixth Amendment of the U.S. Constitution arose in a Supreme Court case decided in 2010.

Padilla v. Kentucky, 559 U.S., 130 S. Ct. 1473 (2010) In a landmark decision, the Supreme Court held that criminal defense lawyers must advise their noncitizen clients about the risk of deportation if they accept a guilty plea. The Court recognized that current immigration laws impose harsh and mandatory deportation consequences onto criminal convictions, and that Congress eliminated from the laws the Attorney General s discretionary authority to cancel removal in meritorious cases. The Court said, These changes to our immigration law have dramatically raised the stakes of a noncitizen s criminal conviction. The importance of accurate legal advice for noncitizens accused of crimes has never been more important.

The petitioner s criminal defense counsel incorrectly advised him that his plea would not affect his immigration status. After learning that his lawyer misadvised him, the petitioner sought post-conviction relief in the Kentucky state court. The Kentucky Supreme Court ultimately held that because the immigration consequences were collateral to the criminal case, the Sixth Amendment was not implicated and thus the petitioner was not entitled to accurate advice from his attorney on this issue. The Supreme Court s decision reverses the Kentucky court. The Court held that because deportation is such a severe penalty, and because immigration consequences of criminal convictions are inextricably linked to criminal proceedings, the Sixth Amendment requires criminal defense counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a guilty plea, and, absent such advice, a noncitizen may raise a claim of ineffective assistance of counsel.

Practical Pointer Especially for those working with criminal defense attorneys, again, always ask a noncitizen client about her immigration status, and make sure to understand her specific immigration status. If you re able to advise her regarding the immigration consequences of her potential criminal sanction, do so. If not, CALL AN IMMIGRATION LAWYER!

Case Initiation Potential client intake questionnaire Client/Case Management Speaking with clients Gather evidentiary forms Manage Red Flag Issues Calling government agencies to fill in gaps Review All Paperwork and Filings Watch for deadlines File and recordkeeping Complete Immigration Packets Drafting immigration forms, supporting letters and documents, client correspondence, e-mails, and cover letters addressed to clients, or government immigration agencies Preparing and filing petitions and applications with governmental agencies, including USCIS, DOL, DOS, et al.

Anuj A. Shah, J.D., Ph.D. Attorney Web: Phone: 713.975.1128 Fax: 713.904.2572 2180 North Loop West, Suite 550 Houston, Texas 77018