Immigration Equality - TLM

Immigration is one of the most complicated areas of law. It would be impossible for any manual to provide an exhaustive overview of immigration law in a few pages. Instead, this section of the manual is intended to provide non-specialists with a basic understanding of common immigration statuses and to help lawyers who are not immigration experts to spot issues that may be important to their clients’ cases.

An individual who comes to the United States for a limited stay is called a “nonimmigrant.”[1]Many nonimmigrant categories require an applicant to prove that he or she does not intend to remain in the United States permanently, or, in other words, that the applicant does not have “immigrant intent.”[2]A non-exhaustive overview of the most common nonimmigrant visa (NIV) categories follows.

Applications for entry into the United States as a nonimmigrant entail a two-step process. The first step is obtaining the visa from the U.S. consulate that allows the foreign national to board a plane (or other mode of transportation) to the United States.[3]The second step takes place at the port-of-entry (POE) where an official from U.S. Customs and Border Patrol (CBP) will determine whether to allow the foreign national to enter.[4]Even if the foreign national has never violated the terms of his or her visa and continues to hold a valid NIV, he or she may be denied entry if the U.S. official at the POE does not believe he or she intends to comply with the visa’s terms. Most frequently, this denial will occur because the official believes the foreign national does not intend to leave the United States after being admitted.[5]

Note: If an individual wishes to come to the United States to visit a same-sex partner, and reveals this to a consular officer, the application for a tourist visa may be denied because the officer may conclude that there is “immigrant intent,” that is, the intention to remain in the United States permanently. Likewise, a would-be asylum-seeker who tells a consular officer in his or her home country that he or she intends to seek asylum in the United States, would have his or her tourist visa denied because of intent to remain in the United States permanently.

The most common NIV is the B1/B2 visa that can be used for short-term visits to the United States either for tourism or to conduct short-term business.[6]This visa does not allow its holder to render services to a U.S. employer while in the United States.[7]An applicant for a tourist visa must demonstrate that there is no intention to permanently remain in the United States by proving he or she has strong ties to the home country and strong incentives to return, i.e., a good job, strong family ties, ownership of real estate, etc. It is often impossible for tourist visa applicants from poor countries to obtain these visas unless the applicant is very wealthy, since the incentive to remain in the United States for work is seen to be so strong. Likewise, it is often especially difficult for LGBT applicants to obtain a tourist visa because they are less likely to have legally recognized family relationships in their home countries. Transgender people also may have difficulties demonstrating that they have good jobs to return to if discrimination in their home countries prevents them from holding employment.

Under the Visa Waiver Program (VWP), citizens of European countries and other close allies of the United States, such as Japan and Australia, can enter this country as short-term visitors without having to apply for B1/B2 visas.[8]They still must prove to a POE immigration official that they do not intend to remain in the United States permanently. VWP entrants are permitted to stay in the United States for 90 days[9]and must waive the right to apply for a change, extension, or adjustment of status while in the United States.[10]Thus, if they wish to alter their visa in any way, they must return to their home country to do so. There are exceptions to the no adjustment rule for immediate relatives of U.S. citizens (USCs) and for asylum-seekers.[11]

The most common student visa is the F visa.[12]There also are M visas available for vocational students[13]and J visas for cultural exchange students.[14]An F visa holder must be enrolled in a school that is recognized by USCIS and must maintain a full course load.[15]Students generally cannot work while in the United States unless they can demonstrate economic hardship and obtain employment authorization.[16]Students also must continue to demonstrate that their intent is not to remain in this country permanently.[17]Generally, a student can work for one year after graduating in a field related to his or her course of study. This period of work is called Optional Practical Training (OPT).[18]

Note: If a foreign national does not have a close relative to sponsor him or her for immigration benefits, the best route to permanent residence in the United States is often to come first as a student, work for a year with OPT status, have that employer act as sponsor for a long-term work visa, and eventually apply for legal permanent residence through the employer. It is important to bear in mind, however, that at the time the foreign national applies for student status and completes OPT, he or she cannot have the intent to remain in the United States permanently.

There are various, long-term NIVs available based on employment. The most common is the H-1B skilled worker visa.[19]There also are visas available for managers in international companies to work in the United States.[20]Most work-related visas require an employer to sponsor the foreign national.[21]

Practice Tip: In employment-based petitions, both for NIVs and immigrant visas (IVs), it is almost always the employer that files with USCIS to sponsor the foreign worker. This means that the immigration attorney represents the employer, and in some applications, engages in dual representation with the employer and the foreign national. As an attorney, if a conflict arises between employee and employer, you may need to withdraw from representing both parties.

A USC who intends to enter into an opposite-sex marriage with a foreign national, whom he or she has met or seen within the last two years, and who is currently abroad can apply for a K fiancé(e) visa on that foreign national’s behalf.[22]This visa allows the foreign national to come to the United States, provided the couple marries within 90 days of the foreign national’s entry.[23]For transgender couples, fiancé(e) visas will raise many of the same issues as those in marriage-based cases.[24]

Lawful permanent resident (LPR) status, or having a “green card,” means that a foreign national can remain in the United States permanently and work indefinitely as long as he or she does not violate certain criminal or immigration laws.[25]LPRs also can lose their status if they reside outside the United States for long periods of time.[26]Individuals with LPR status remain citizens of their native countries and continue to travel with passports from their countries. A foreign national must have LPR status in order to apply to become a USC.[27]

Obtaining LPR status in the United States is almost always a two-step process: (1) someone (an eligible family member or employer) applies for an immigrant (permanent) visa for the applicant; (2) and the applicant applies for the actual “green card.” Depending on what category of immigration law the applicant falls under, these two parts may be done simultaneously, or there may be a long wait between the two steps. If this application is made from within the United States, it is called adjustment of status. Alternatively, the application can be made from the foreign national’s home country, in which case it is called consular processing. The most common routes to LPR status are discussed below.

Applicants for LPR status also must be legally “admissible” to the United States.[28]Even if an applicant establishes the requirements for LPR status, the applicant still can be denied on other grounds.[29]Until 1990, homosexuality was a ground of inadmissibility to the United States. Fortunately, this section of the law was removed, and neither an applicant’s sexual orientation nor gender identity has any legal bearing on an application for LPR status.[30]

One of the primary principles of U.S. immigration law is family unity.[34]Thus, most “green cards” are the result of a petition by a USC or LPR petitioning for a close relative abroad or in the United States. Family-based applications for LPR status require the USC or LPR to file an immigrant petition for the applicant that establishes the family relationship. They also require the foreign national to apply for LPR status and establish that he or she is admissible for residence here.[35]

For immediate relatives of USCs, meaning opposite sex spouses, minor children, and parents, visas are immediately available.[36]Thus for immediate relative petitions, both parts of the “green card” application—the visa petition and the application for LPR status itself—may be submitted simultaneously. For marriage-based cases, the couple must prove that the marriage is bona fide for the application to be approved.[37]If the “green card” application is approved when the couple has been married for fewer than two years, then the foreign national will receive a “conditional green card” that is good for two years, before which he or she must apply to remove the condition.[38]

For other family-based petitions—adult sons and daughters (both married and unmarried) of USCs, siblings of USCs, and spouses, minor children, and adult, unmarried sons and daughters of LPRs, there is a preference system that generally involves a wait of several years after filing the initial petition.[39]This means that the USC or LPR files the initial visa application on behalf of the foreign national. Once the application is approved, (that is, the USC or LPR satisfies USCIS that the family relationship exists), the visa is given a “priority date” that is backdated to the date of filing.[40]The foreign national cannot submit the second half of the application (the actual application for LPR status) until the priority date is current.[41]To determine when a person’s priority date is current, the practitioner must check the monthly Visa Bulletin issued by the U.S. Department of State (DOS).[42]Countries with high rates of immigration have their own categories in the visa bulletins. Because quotas are placed on the number of family-based visas issued each month, there is a lengthy backlog on these cases. Waiting periods can range from approximately five years for spouses and children of LPRs to more than 20 years for Filipino siblings of USCs.

Practice Tip: In family-based cases, step one of the LPR process is having an approved I-130, which is the IV petition. Even though the petitioner will receive a formal approval notice from USCIS once the family relationship has been verified, an approved I-130 does not actually give the foreign national lawful status in the United States; it merely begins the waiting process for the foreign national to be permitted to file step two, the I-485 application, or, in the case where the foreign national is not in the United States, the IV application with DOS. It is not until the I-485 is submitted that the foreign national is actually residing in the United States under color of law.

Foreign nationals also can obtain LPR status through employment. This commonly involves an employer sponsoring the applicant by demonstrating to the Department of Labor that there is no qualified American worker who is available to fill the position.[43]As with family-based LPR applications, there is a preference system and priority dates can be tracked in the Visa Bulletin.[44]Some categories may be current (meaning there is no wait to apply for the green card after the labor certification is approved), while others may be backlogged or completely unavailable.[45]

Although generally, it is the employer who must file a petition on behalf of its employee, there are some categories of employment-based immigration that allow the foreign national to self-petition, and which do not require labor certification. These include foreign nationals with “extraordinary abilities” in the sciences, arts, business, or athletics. Such applicants must demonstrate that they have achieved national or international acclaim and that they are recognized as being in the top of their field.[46]There are other categories for outstanding professors, researchers, and multinational executives that, likewise, do not require labor certification but do require a petitioning employer.[47]

Each year in late fall, DOS runs a lottery in which the winners can apply for LPR status.[48]The applicant may apply from within or outside the United States.[49]The purpose of the lottery is to permit foreign nationals from countries that are under-represented to obtain U.S. residence through other immigration channels.[50]Applicants must have a high school diploma or equivalent work experience. Applications are now completed online and it is free to apply. Individuals may submit one lottery application only or they will be disqualified.[51]The chances of winning this lottery are slim. It also is important to understand that if an individual who is in the United States without lawful status wins the lottery, he or she will not be permitted to apply for a green card from within the United States.[52]

An individual who has fled his or her country because of persecution, or who fears future persecution if he or she returns, may apply for asylum in the United States.[53]One year after an individual has been granted asylum, he or she can apply for LPR status.[54]Likewise, refugees can apply for adjustment to LPR status one year after being admitted into the United States.[55]

There are some other specialized LPR applications based on a person’s country of origin and length of stay in the United States. These categories are beyond the scope of this introduction, but the practitioner should be aware that Cubans can generally apply for LPR status one year after they are admitted into the United States.[56]Also, citizens of Haiti, Nicaragua, El Salvador, Guatemala, Honduras, and some Eastern European countries who have been in the United States since the 1990s may be eligible for specialized LPR applications.[57]

When meeting with a potential immigration client, the first step a practitioner must take is to determine what the person’s immigration status is. The most important determination to make is whether he or she is here legally. If the potential client is a USC or LPR,[58]he or she will probably know this already and have paperwork documenting his or her status.

If the potential client does not have permanent status in the United States, his or her legal standing will determine what options, if any, he or she has under current immigration law. For most types of applications (applications to change from one nonimmigrant status to another; applications to extend nonimmigrant status; and applications to adjust status to LPR), a foreign national must have entered the United States lawfully, must have maintained lawful status, and must not have done anything (such as working without authorization or committing a crime) to violate the status. Thus, before assessing a potential client’s options, it is essential to understand his or her current status.

If the applicant entered the United States illegally, either by crossing a border without authorization or as a stowaway, and has never made any application for immigration benefits, he or she is here illegally and probably will not be able to apply to legalize his or her status from within the United States.[59]

If the applicant entered the United States legally with a visa, that applicant may or may not be here legally. Foreign nationals who enter the United States legally are given a small card called an I-94 that generally has a date stamped on it referred to as the “authorized stay.” That is, the individual is authorized to remain in the United States until the date on the card. Once that date passes, even if the foreign national has a valid visa, he or she is here unlawfully. Often, clients mistakenly believe that as long as the visa in the passport is valid, they are here lawfully. In fact, the visa only gives the foreign national the ability to seek entry into the United States.

Example: Cristina has a 10-year, multiple-entry visa in her Colombian passport that was issued by the U.S. consulate on June 1, 2007. She entered the United States on September 1, 2007, and was given an authorized stay until November 30, 2007, stamped on her I-94 card. It is now January 2008, and even though Cristina’s visa has not expired, her authorized stay has, so she is present in the United States illegally. If she leaves the country now, her visa will probably be cancelled by the airport inspector because she violated the terms of her stay.

Certain immigration statuses, such as student status, are given an I-94 that says “D/S” or “duration of status,” meaning that as long as the individual maintains status and does not violate the terms of the visa, he or she can remain in the United States.

Example: Ryan entered the United States on January 1, 2008, as a student to attend a four-year college. His I-94 card was stamped “D/S,” which means “duration of stay.” Ryan’s lawful status here is tied to his student status; as long as Ryan maintains a full course load or is pursuing authorized Optional Practical Training, and does not otherwise violate the terms of his visa (i.e., working without authorization), he can stay here legally.

An individual who is in the United States unlawfully generally cannot apply to extend, change, or adjust status from within the United States.[60]Thus, most individuals who are here illegally cannot do anything to improve their immigration status. This means that once someone is in the United States unlawfully, even if he or she finds an employer to sponsor him or her for a green card, wins the diversity visa lottery, or is sponsored by a family member other than a USC opposite-sex spouse or USC adult son or daughter, that person cannot apply for LPR status from within the United States. Likewise, once someone has fallen out of status, he or she cannot apply to change or extend an NIV.

In theory, an individual who has fallen out of status, but has some avenue to apply for LPR status, is supposed to return to his or her home country and apply through the consulate there, rather than applying from within the United States. However, another immigration rule imposes harsh consequences on those who have been in the United States unlawfully.[61]Under the three– and ten-year bars, a foreign national who accumulates more than 180 days of unlawful presence in the United States will not be permitted to return to the United States for three years after leaving the country.[62]Individuals who accumulate more than one year of unlawful presence are barred from reentering the United States for 10 years.[63]

Example: Consuela is a citizen of Bolivia and entered the United States in 2002 on a tourist visa with an authorized stay of six months, and never left or applied to change status. If she now wins the diversity visa lottery, she could not apply to adjust her status from within the United States because she is here unlawfully. If she left the country to do consular processing, she could not return for 10 years because of her unlawful presence. Thus, the diversity visa lottery win would be essentially meaningless.

There are exceptions to the general rule that those who are here unlawfully cannot change their status. A foreign national can apply for asylum regardless of whether he or she is here lawfully.[64]Although with limited exceptions, an asylum-seeker must file within one year of his or her last entry into the United States.[65]

Furthermore, foreign nationals who are being sponsored for an IV by a USC opposite-sex spouse or by USC adult sons or daughters can proceed with their applications from within the United States and have their unlawful presence “forgiven” as long as they entered the United States lawfully with a visa.[66]If, however, the foreign national entered without inspection, for example, by crossing the border illegally, then that foreign national cannot proceed with a green card application from within the United States even if he or she marries a USC.[67]There is an exception to this exception as well. Foreign nationals who fall under former §245(i) of the Immigration and Nationality Act (INA) can pay a penalty and have their illegal entry forgiven as well.

In meeting with a prospective client, it is important that the practitioner determine whether that person has ever filed a prior application with USCIS. If an IV that was “approvable when filed” was filed on that applicant’s behalf on or before April 30, 2001, and the foreign national was physically present in the United States on December 21, 2000, he or she will be grandfathered under the expired §245(i) law.[68]This means that even if he or she is in the United States without legal status, and even if he or she entered the United States illegally, that person can proceed with an LPR application from within the United States and not face the harsh consequences of the three– and ten-year bars. Filing under §245(i) entails completing another form and paying a penalty of $1,000 in addition to the usual “green card” filing fees.

If a foreign national is in the United States without legal status, or has violated status and become removable (usually by committing a crime), he or she may be placed in removal proceedings.[69]Here, the foreign national will have an opportunity to apply for any forms of relief that may be available, such as adjustment of status or asylum and related relief.[70]If the foreign national has no viable option to remain in the United States, he or she may be eligible to ask the judge for voluntary departure to post a bond and leave the United States voluntarily in lieu of being physically deported by the U.S. government.

Prior to the 1996 overhaul of the immigration laws, it was possible for an individual in deportation proceedings to apply for “suspension of deportation.” Under this law, an individual who had been in the United States for a long time could demonstrate good moral character, show that he or she would face extreme hardship if deported to the home country, and be granted LPR status by the IJ.

One of the few published cases concerning transgender immigration issues dealt with an application for suspension of deportation. In Miranda v. INS,[71]the Eighth Circuit U.S. Court of Appeals ruled a transgender woman who had undergone complete sex reassignment surgery (SRS) would not face extreme hardship in her native Honduras. Miranda had first argued that she would face extreme medical hardship because she would not receive “integrated” medical treatment for her transsexualism. The court rejected this argument, in part, because the doctor’s letters she submitted in support of her application were written before she had completed SRS, and in part, because she had not included evidence in the record that hormone treatment and regular medical checkups would not be available in Honduras. The court further concluded that she would not face “social hardship” because she had lived part-time as a woman in the past, and, although her supervisor threatened to fire her because of her transgender identity, one coworker defended her and she was able to keep her job.[72]The Miranda case is a good example of how crucial it is in proceedings before immigration court to build a complete record, including documentary evidence and testimony by experts about country conditions for transgender individuals. Fortunately, since suspension of deportation no longer exists as a form of relief, the precedential value of this case is minimal. However, suspension’s replacement, cancellation, has implemented an even more onerous standard.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA)[73]replaced suspension with a new, more difficult form of relief known as cancellation of removal. To be eligible for cancellation, a foreign national must demonstrate that he or she has been in the United States for a continuous period of not less than 10 years, that he or she is a person of good moral character, and that his or her removal will cause “exceptional and extremely unusual hardship” to a close USC or LPR family member.[74]Thus, the time requirement was lengthened, the standard was made much more difficult, and, most importantly, hardship to self no longer qualifies.

Under U.S. immigration law, employment authorization is a benefit associated with another status. That is, it is not possible to apply merely for employment authorization; the ability to work is a benefit derived from having some form of lawful status in the United States. Noncitizens with permanent status, such as LPRs and asylees, can work lawfully in the United States without an employment authorization document (EAD). Most other noncitizens, such as skilled workers, students, individuals with applications for permanent residence or asylum pending, and individuals who have won withholding of removal, cannot work lawfully unless they have a valid EAD or employment-based NIV status.[75]

The issuance of Social Security cards and Social Security numbers is performed by the Social Security Administration (SSA), which is an agency unconnected to the U.S. Department of Homeland Security (DHS). Nonetheless, in order to obtain a Social Security card, a noncitizen must provide the SSA with documentation evidencing the legal right to work in the United States. USCs, LPRs, and asylees obtain “unrestricted” Social Security cards, meaning that they can work legally without an EAD. Other categories of noncitizens will obtain Social Security cards with the notation “valid only with DHS authorization,” meaning that to work lawfully, the card holder must have a valid EAD.[76]

Practice Tip: Under current law, to obtain a Social Security number, a foreign national must have some lawful immigration status or application pending. If your client has a valid Social Security number, this is a big clue that, at some point, he or she made some application for an immigration benefit with DHS or legacy Immigration and Naturalization Service. Bear in mind, however, that up until the mid 1990s, it was relatively easy to obtain a Social Security card even without proving valid immigration status. So if your client has been in the United States for more than 10 years, has a valid Social Security card, but insists he or she never made any application for immigration benefits, this may be accurate.

If there is any possibility that a potential client has made an application for immigration benefits in the past, it is sound practice to submit a Freedom of Information Act (FOIA) request to USCIS and obtain a copy of the immigration file. This is a straightforward and free application that is made by completing Form G-639.[77]The downside of this process is that it generally takes one to two years to get the result.[78]However, if there is any chance that a client has been ordered removed, has filed an application that is still pending, or has been denied in the past, this information is crucial for the practitioner to have in order to assess the individual’s immigration options.

Practice Tip: If there is any chance that a final removal or deportation order exists against your client, you should not include his or her address on the FOIA or Notice of Appearance form. Instead, fill out the forms in care of your office to protect your client from the possibility of arrest and detention.

Permanently Residing Under Color of Law (PRUCOL) status is not a recognized status under U.S. immigration law. It is, however, a status that is used to determine eligibility for welfare benefits, Social Security Disability benefits, Supplement Security Income benefits, and other means-tested benefits. While PRUCOL is not defined in the INA, it has been defined by courts to mean that a foreign national who is in the United States without a recognized legal status is known to DHS, and DHS is not currently intending to deport that individual.[79]There are certain forms of limited relief, such as deferred action, under which a foreign national may be permitted by DHS to remain in the United States for humanitarian reasons even though he or she is not accorded lawful immigration status. These humanitarian forms of relief may be especially relevant to foreign nationals who have AIDS or suffer from other life-threatening illnesses.

The most stable immigration status that an individual can have is U.S. citizenship. Anyone who is born in the United States is automatically a USC regardless of the immigration status of his or her parents.[80]An individual born abroad for whom one or both parents are a USC may or may not be a citizen. This is a complicated area of the law that is beyond the scope of this introduction.

An individual also may apply to become a USC after he or she has been an LPR in the United States for five years (three years if residence is based on marriage and applicant has been residing for three years with his or her USC spouse).[81]Once an individual becomes a USC, he or she cannot be deported from the United States unless that person committed fraud in the application for naturalization.[82]

An applicant for U.S. citizenship must demonstrate “good moral character” during the five years prior to the application.[83]Additionally, if the applicant has ever been arrested, an application for U.S. citizenship could trigger removal proceedings, so it is very important to make sure the applicant has no convictions that could lead to his or her placement in removal proceedings.[84]

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^{^[1]}Immigration and Nationality Act of 1952 (INA) §101(a)15; 8 USC §1101(a)(15).

^{^[2]}Id. See also INA §214(b); 8 USC §1184(b); (alien is “presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 101(a)(15).”). A few nonimmigrant categories are exempted from this general presumption of immigrant intent, notably H-1 (aliens in “specialty occupations” and L-1 (intracompany transferees) nonimmigrants). INA §101(a)(15); 8 USC §1101(a)(15).

^{^[3]}INA §221(a); 8 USC §1201(a).

^{^[4]}INA §235(a); 8 USC §1225(a).

^{^[5]}INA §221(h); 8 USC §1201(h).

^{^[6]}INA §101(a)(15)(B); 8 USC §1101(a)(15)(B).

^{^[7]}U.S. State Department and legacy Immigration and Naturalization Service guidelines include a detailed list of activities permissible within the B1/B2 categories (9 FAM 41.31; OI §214.2(b)), all of which preclude gainful employment from a U.S. source.

^{^[8]}INA §217; 8 USC §1187.

^{^[9]}INA §217(a)(1); 8 USC §1187(a)(1).

^{^[10]}8 CFR §248.2(a)(6).

^{^[11]}8 CFR §1245.1.

^{^[12]}INA §101(a)(15)(F); 8 USC §1101(a)(15)(F).

^{^[13]}INA §101(a)(15)(M); 8 USC §1101(a)(15)(M).

^{^[14]}INA §101(a)(15)(J); 8 USC §1101(a)(15)(J).

^{^[15]}INA §101(a)(15)(F)(i); 8 USC §1101(a)(15)(F)(i); See also 8 CFR §214.2.(f).

^{^[16]}8 CFR §214.2(f)(9).

^{^[17]}INA §101(a)(15)(F); 8 USC §1101(a)(15)(F).

^{^[18]}8 CFR §214.2(f)(10)(ii).

^{^[19]}INA §101(a)(15)(H)(i)(b); 8 USC §1101(a)(15)(H)(i)(b).

^{^[20]}INA §101(a)(15)(L); 8 USC §1101(a)(15)(L).

^{^[21]}INA §101(a)(15)(H); 8 USC §1101(a)(15)(H).

^{^[22]}INA §101(a)(15)(K); 8 USC §1101(a)(15)(K).

^{^[23]}INA §101(a)(15)(K)(i); 8 USC §1101(a)(15)(K)(i).

^{^[24]}See chapter 4 infra for a complete discussion of these issues.

^{^[25]}8 INA §235; 8 USC §1255.

^{^[26]}INA §235(c)(2); 8 USC §1255(c)(2); 8 CFR §1245.1(d)(2).

^{^[27]}INA §318; 8 USC §1429; 8 CFR §316.2(a)(2).

^{^[28]}INA §245(a)(2); 8 USC §1255 (a)(2).

^{^[29]}Ameeriar v. Immigration and Naturalization Service, 438 F.2d 1028 (3d Cir. 1971); Faddah v. Immigration and Naturalization Service, 553 F.2d 491, 45 A.L.R., Fed. 175 (5th Cir. 1977); Thomaidis v. Immigration and Naturalization Service, 431 F.2d 711 (9th Cir. 1970).

^{^[30]}Immigration Act of 1990, Pub. L. No. 101-649 §601.

^{^[31]}INA §212(a)(1)(A)(i); 8 USC §1182(a)(1)(A)(i); 42 CFR §34.2.

^{^[32]}INA §212(a)(4); 8 USC §1182(a)(4).

^{^[33]}8 CFR §213a.

^{^[34]}See, e.g., Moge v. Morris, 470 F. Supp. 556 (E.D. Pa. 1979).

^{^[35]}8 CFR §1245.1.

^{^[36]}8 CFR §1245.1(c); 8 CFR §1245.1(i).

^{^[37]}8 CFR §1245.1(c)(8)(iii)(F).

^{^[38]}8 CFR §1245.1(c)(8)(iii)(E). For a lengthy discussion of marriage-based lawful permanent resident (LPR) applications, see chapter 4 infra.

^{^[39]}INA §203(a); 8 USC §1153(a).

^{^[40]}8 CFR §1245.1(e)(2)(vi)(B).

^{^[41]}Id.

^{^[42]}These are available at http://travel.state.gov/visa/frvi/bulletin/bulletin_3897.html.

^{^[43]}INA §212(A); 8 USC §1182(A).

^{^[44]}See http://travel.state.gov/visa/frvi/bulletin/bulletin_3897.html.

^{^[45]}Id.

^{^[46]}INA §203(b)(1)(A)(i); 8 USC §1153(b)(1)(A)(i).

^{^[47]}INA §203(b)(1)(B); 8 USC §1153(b)(1)(B).

^{^[48]}INA §203(c); 8 USC §1153(c).

^{^[49]}Id.

^{^[50]}INA §203(c)(2); 8 USC §1153(c)(2).

^{^[51]}22 CFR §42.33(b)(2)(ii).

^{^[52]}INA §245(c)(2); 8 USC §1255(c)(2).

^{^[53]}See chapter 5 infra for a detailed discussion of asylum based on transgender identity.

^{^[54]}8 CFR §1245.1(d)(1)(iv).

^{^[55]}8 CFR §1245.1(d)(1)(iii).

^{^[56]}Cuban Refugee Adjustment Act, Pub. L. No. 89-732.

^{^[57]}See, e.g., Pub. L. No. 105-100, Title II.

^{^[58]}See section on Lawful Permanent Residence in this chapter.

^{^[59]}INA §245(c)(2); 18 USC §1255(c)(2). Exceptions to this rule include asylum applicants (who can apply even if they entered without inspection and are currently here illegally) or individuals who are grandfathered under an expired section of the law called §245(i). For a discussion on this complicated area of the law, see section on Effects of Being in the United States Unlawfully below.

^{^[60]}INA §245(c)(2); 8 USC §1255(c)(2).

^{^[61]}Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546.

^{^[62]}Id.

^{^[63]}Id.

^{^[64]}8 CFR §1245.1.

^{^[65]}See chapter 5 infra.

^{^[66]}8 CFR §1245.1.

^{^[67]}Id.

^{^[68]}Section 1502 of the Legal Immigration and Family Equity (LIFE) Act Amendments, title XV, Division B of Pub. L. No. 106-554, 114 Stat. 2763 (Dec. 21, 2000).

^{^[69]}INA §240; 8 USC §1229a.

^{^[70]}See Withholding of Removal section in chapter 5 infra for more information about asylum applications in removal proceedings.

^{^[71]}Miranda v. INS, 51 F.3d 76 (8th Cir. 1995).

^{^[72]}Id. at 4.

[73]Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, div. C, 110 Stat. 3009, 3009-546 to 3009-724.

^{^[74]}INA §240A(b)(1); 8 USC §1229b(b)(1).

^{^[75]}8 CFR §§274a.12(a), 1274a.12(a); 8 CFR §§274a.12(b), 1274a.12(b); 8 CFR §§274a.12(c), 1274a.12(c).

^{^[76]}20 CFR §422.103(e)(3).

^{^[77]}Available at www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/
?vgnextoid=6f2a4154d7b3d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=
db029c7755cb9010VgnVCM10000045f3d6a1RCRD.

^{^[78]}There is now a “fast track” Freedom of Information Act (FOIA) system for individuals who are in removal proceedings through which an attorney can view the immigration file within a few weeks of filing the FOIA. The instructions to the G-639 explain this procedure.

^{^[79]}Holley v. Lavine, 553 F.2d 845 (2d. Cir. 1977).

^{^[80]}U.S. Const., Amend. 14 §1; 8 USC §1401(a).

^{^[81]}INA §316(a); 8 USC §1427(a); 8 CFR §316.2(a)(3).

^{^[82]}INA §340; 8 USC §1451.

^{^[83]}INA §316(a); 8 USC §1427(a); 8 CFR §316.10(a)(1).

^{^[84]}INA §101(f)(8); 8 USC §1101(f)(8); 8 CFR §316.10(b)(1).