Most people have an opinion about immigration. Differences of opinion have paralyzed the U.S. Congress for the last several years. Many of these opinions are based on myth and have no grounding in reality. This article will expose many of these myths and provide information as to the current realities of immigration law in selected areas.

1) There is one federal agency that governs immigration.

Myth. A number of federal Departments and agencies oversee various aspects of immigration. The U.S. Department of Homeland Security (DHS) controls the entry and exit of foreign nationals. DHS has three separate agencies involved in immigration matters: 1) U.S. Citizenship and Immigration Services (CIS), 2) U.S. Customs and Border Protection (CBP) and 3) U.S. Customs and Immigration Enforcement (ICE). CIS governs benefits such as temporary visitor or work status as well as permanent resident/green card status and naturalization; CBP controls the borders and determines who may enter the U.S. and ICE pursues the capture and removal of deportable foreign nationals who are already in the U.S. and whose acts constitute a violation of immigration laws. The U.S. Department of Justice (DOJ) oversees immigration court hearings to remove foreign nationals via the Executive Office for Immigration Review (EOIR). Appeals from these hearings are made to the Board of Immigration Appeals (BIA).

Through its American embassies and consulates overseas, the U.S. Department of State (DOS) governs the issuance of visas that are required for entry into the U.S. for most foreign nationals.1 

The U.S. Department of Labor (DOL) controls wages paid to foreign nationals.2  DOL approves labor certification applications made by employers on behalf of foreign nationals. Appeals from these determinations are made to the Board of Alien Labor Certification Appeals (BALCA). Approved labor certifications provide the requisite criteria for applications for permanent resident status which may only be granted by CIS. DOL regulations govern working conditions for foreign nationals working in agriculture.3

The U.S. Department of Health and Human Services (HHS), through the Centers for Disease Control and Prevention, determines vaccinations needed for certain immigrants and identifies medical conditions that would prohibit a foreign national’s entry into the U.S. (e.g. an active case of tuberculosis).4 HHS also makes determinations on waiver applications for some individuals who enter the U.S. in J-1 status (as exchange visitors), e.g., physicians. 5

 

2) A foreign national who graduates from a U.S. college or university may work in the U.S.

Reality: This is only true for some individuals. Once the foreign national graduates, he/she can work for one year if the school approves Optional Practical Training (OPT) and CIS issues a laminated Employment Authorization Document (EAD).6  The student must work in his/her field of study and cannot be unemployed for more than 90 days after being granted OPT.7 A student who holds a degree in science, technology, engineering or mathematics (STEM) may be granted 29 months of OPT but only if the employer has registered with the DHS for the E-verify program (a program to verify that workers are authorized to work).8

Once the student’s OPT expires, the student usually has authorization to remain in the U.S. for 60 days but is not authorized to work during that time period.9 Students may apply for a change of status to H-1B, temporary work status, infra.

 

3) For professionals it is easy to secure a temporary work visa.

Reality: The H-1B is for individuals who have the equivalent of a U.S. bachelors degree or higher and are being offered a professional position by a U.S. company, university or other entity.10 An individual without a degree may qualify if he/she has the equivalent experience or combination of education and experience. Three years of experience in the field is the equivalent of one year of college. The H-1B is valid for a total of six years. Extensions are possible in certain cases.

The U.S. Congress has set an annual numerical cap on these visas. There are 58,200 available for those with B.S. degrees or the equivalent and 20,000 available for those with U.S. masters degrees. 11 Pursuant to certain Free Trade Agreements, there are an additional 1,400 for individuals from Chile and 5,400 for those from Singapore.12 For FY 2009, the U.S. Citizenship and Immigration Services (CIS) received more than 120,000 employer-sponsored H-1B petitions on behalf of individuals with BS degrees and more than 30,000 on behalf of individuals who hold U.S. masters degrees. In response, CIS conducted a lottery to select petitions.

Other professionals may qualify for a temporary work visa under categories such as the O-1 (based on extraordinary ability), L-1 (intracompany transferee) and J-1 exchange visitor.

 

4) Overseas companies may transfer their employees to a U.S. subsidiary, affiliate or branch.

Reality: This is true but only if certain conditions are met. To qualify for an L-1 intracompany transferee visa, the employee must have worked at the company’s overseas office for at least one year full-time in the three years prior to the application for an L-1 intracompany transferee visa.13 An individual who is a manager or executive may be transferred to the U.S. for a total of seven years; an employee with specialized knowledge of the Company’s policies and procedures may be transferred for a total of five years.

 

5) Canadian and Mexican nationals have special work visas through the North American Free Trade Agreement (NAFTA).

Reality: True for some, but not all. Not all Canadian and Mexican citizens qualify. There are specific categories and occupations under NAFTA (e.g. Computer Systems Analyst, Management Consultant, Engineer, Scientific Technican/Technologist). If the foreign national meets the requirements, the individual may enter the U.S. in Trade NAFTA (TN) status for three years (with possible extensions).14

 

6) Treaties and agreements between the U.S. and other countries create new categories for the entry of foreign nationals into the U.S.

Reality: True. Australians, for example, have special temporary work visas due to a treaty signed by the U.S. and Australia. This category (E-3) is similar to the H-1B category but is available only to citizens of Australia who have the equivalent of a U.S. bachelors degree or higher.15 Treaties also govern nonimmigrant traders and investors in the E-1 and E-2 categories.16

 

7) Temporary admission to the U.S. requires a visa.

Myth:Most individuals applying for temporary admission to the U.S. require visas which they must obtain at American consulates in their home countries or countries of residence. Most visas require a petition approved by CIS. Exceptions to the visa requirement are those individuals from countries enrolled in the Visa Waiver Program (VWP). These individuals may board airplanes bound for the U.S. by showing only their passports and may be admitted into the U.S. for business or pleasure for up to 90 days. There are currently 34 countries enrolled in the VWP.17

 

8) Foreign nationals of extraordinary ability in science, the arts, education, business or athletics are easily admitted into the U.S. as permanent residents or nonimmigrants.

Reality: True, but only if the individual can prove that he or she has sustained international or national acclaim due to his/her extraordinary ability. The O-1 category is for temporary/nonimmigrant work status and the EB11/Extraordinary Ability category is for those who qualify for permanent resident status.18 The O-1 is also for those individuals who have demonstrated a record of extraordinary achievement in motion picture and/or television productions.

 

9) Outstanding researchers and those working in areas that are of national interest may be granted permanent resident status.

Reality: True. These individuals may be granted permanent resident status if they meet the requirements.19

 

10) A foreign national who attends a public elementary or secondary school, may only be admitted for one year and must reimburse the public school for its expenses.

Reality: Partly true. Children seeking F-1 visas/status may not be admitted to public elementary or secondary schools for more than 12 months and must reimburse the school for the full, unsubsidized per capita cost of providing education. 20 

 

Children Who are Dependents of Nonimmigrants

Children who are dependents of parents who are in a nonimmigrant status such as H-1B, L-1, O-1 may attend school for as long as their nonimmigrant status is valid. Children who reach the age of 21 are no longer considered dependents and must apply for F-1 status in order to attend school.

 

Undocumented Children

Undocumented foreign national children who attend elementary or secondary schools are not obligated to pay anything and their educational studies are not time-limited. In a 1982 U.S. Supreme Court case, Plyler v. Doe, the court held that a Texas statute which withholds, from local school districts, any state funds for the education of children who were not “legally admitted” into the United States, and which authorizes local school districts to deny enrollment to such children, violates the Equal Protection Clause of the Fourteenth Amendment.21

 

11) For someone who is married to a U.S. citizen, it is easy to become a permanent resident

Reality: True for some, but not for others. Permanent resident status is relatively straightforward for those spouses who entered the U.S. legally and who are not statutorily inadmissible (e.g. convicted of certain criminal offenses, previously removed/deported at the border).22

For those spouses who entered the U.S. illegally, have been in the U.S. for more than 180 days, and for whom no immigration petition was filed before April 30, 2001, it is not as easy. They must return to their home country and apply for an immigrant visa at the American embassy or consulate. If they have been in the U.S. illegally for 180 days or more, they must also apply for a waiver.23  The consulate will send the waiver application to CIS with a recommendation.

Waivers are also required in other instances, such as when the foreign national has committed certain criminal and immigration offenses, has certain health conditions or has committed misrepresentation or fraud. 24 No waiver is available for a false claim to U.S. citizenship to obtain an immigration benefit made after September 30, 1996. However, there are some foreign nationals to whom the statute does not apply. 25

 

Conditional Permanent Residents

Petitions based on marriage usually require an interview at CIS offices. All immigrant petitions for those overseas must be applied for in person at an American embassy or consulate, usually in the individual’s country of birth. An individual who is in the U.S. and who has not been married to the US citizen for two years on the date of the interview will be granted permanent resident status on a conditional basis for two years. An individual applying at an American embassy or consulate and who enters the U.S. before completing two years of marriage to the USC will also be granted conditional permanent resident status. The conditions may be removed through an application filed by the couple in the 90-day window before the end of the two years following the grant of status. Waivers exist for individuals who (1) married in good faith but who have divorced, (2) would suffer extreme hardship due to factors that arose following the grant of conditional permanent resident status, or 3) where the USC spouse has died. 26

 

12) A permanent resident may petition for permanent resident status for his/her parents and brothers and sisters.

Reality: Myth. Only a US citizen may petition for his/her parents and siblings.27 Permanent residents may petition for their spouses, children under 21, and unmarried sons and daughters ages 21 or older.28

 

13) Foreign nationals may wait years for a green card.

Reality: True. The family and employment category as well as the country of birth determine the wait time. DOS publishes a Visa Bulletin every month which explains all the categories and shows the waiting time periods.29 As of February 2009 the wait time for a Filipino brother/sister of a U.S. citizen was 22 years.

 

14) Becoming a U.S. citizen is easy.

Reality: It can be easy, but not always. Those individuals who are permanent residents and who have been outside the U.S. for long periods of time may not qualify for U.S. citizenship. In addition, CIS takes the fingerprints of all applicants to see if they are on terrorist watch lists or have committed crimes. Petitions for naturalization may be held up for years in security checks which are conducted by various US Government agencies.

In almost all cases, to petition for naturalization/U.S. citizenship an individual must be a permanent resident for three or five years. To qualify under the three-year rule, the individual must also have been married to, and living with, a US citizen for three years or have been granted permanent resident status based on a petition as a battered spouse or child. If the individual does not qualify under these provisions, the individual must have been a permanent resident for five years or more at the time of application.30 In most cases, the individual must be 18 years or older, have been physically present in the U.S. for half of the three- or five-year period, been continuously residing in the CIS district where the person is applying for three months before the date of filing the petition and prove that he/she has good moral character.31 There are exceptions to the physical presence and continuous residence requirements for certain military personnel, spouses of U.S. citizens who are working abroad and others (but the exceptions have threshold criteria that must be met).32

Those who have committed criminal offenses may not only be ineligible for citizenship but may also be deportable or refused admission to the U.S. after a trip abroad.33 There are statutory grounds for those who are ineligible for U.S. citizenship which include certain offenses deemed to be aggravated felonies.34

 

15) Adopting a child in another country and bringing him/her to the U.S. is relatively easy and may be accomplished no matter how old the child is.

Myth. Such adoptions are complex and subject to a variety of conditions. The DOS website provides information on international adoptions for particular countries.35 In general, the child must have been adopted before the age of 16 and have lived with the adoptive parents for 2 years in order to qualify for permanent resident status.36 However, if a U.S. citizen files an orphan petition for a child living in another country which is approved by CIS, then the two-year period is waived.37

 

16) Children born overseas to a USC parent are U.S. citizens at the time of their birth.

Reality: Not always. This is true only where the U.S. citizen parent(s) fulfilled certain physical presence requirements in the U.S. before the child’s birth. The requirements are determined by the birth date of the child and whether the child was born in or out of wedlock.38  An adopted child does not qualify under this statute. If the child qualifies and is overseas, the parent should apply at an American embassy or consulate for a U.S. Consular Report of Birth Abroad and a U.S. passport for the child. If the child is in the U.S., the child should apply for a passport or with CIS for a Certificate of Citizenship.

 

Other Child Citizenship Statutes

Children who are permanent residents and who are under 18 at the time of the fulfillment of certain statutory requirements may automatically become U.S. citizens at the time their parent(s) naturalize(s).39 These children may apply for a U.S. passport and/or a Certificate of Citizenship.

Children under 18 who are living abroad in the legal and physical custody of a U.S. citizen parent and who do not qualify under the above-mentioned statutes, may obtain certificates of citizenship by application to CIS. However, the parent must fulfill certain physical presence requirements. If the parent has died within five years of the child’s filing the application for a certificate of citizenship, a U.S. citizen grandparent may substitute for the U.S. citizen parent if certain requirements are met. 40 Physical presence requirements for parents are waived when the U.S. citizen parent is in the U.S. Armed Forces and is stationed abroad.

 

17) Military personnel have special requirements for naturalization

Reality: True. A foreign national soldier who honorably served in the U.S. Armed Forces in a time of war or declared hostilities during a period designated by the President through Executive Order, may apply for U.S. citizenship even if he or she is not a lawful permanent resident. Other requirements must be met.41 There are additional statutory provisions for a soldier who served for an aggregate period of one year and if separated from the service, the separation was honorable and for a posthumous grant of citizenship.42 Other requirements must be met.

 

18) Family members of U.S. citizens in the military who died in combat may apply for permanent resident status or naturalization.

Reality: True for some, but not all. To be eligible for permanent resident status, family members must be a spouse, parent or child and the U.S. citizen must have served honorably in the Armed Forces of the United States and died as a result of injury or disease incurred in or aggravated by combat.43 The application for permanent resident status must be made within two years. Other requirements must be met as well. Some spouses of U.S. citizens who died during a period of honorable service while on active duty status may be eligible for naturalization.44

 

19) ICE is raiding companies and deporting undocumented aliens but is not holding the employers accountable.

Reality: Myth. Not only is ICE deporting undocumented aliens, but indictments have resulted for employers through ICE actions. The ICE website lists some enforcement actions and includes statistics in the annual report for 2007.45

Civil penalties range from $275 to $16,000 for each alien.46 Criminal penalties may be imposed for pattern and practice violations.47 An employer may face monetary penalties and five years in jail if he/she hired at least 10 individuals and had actual knowledge that the individuals were not authorized to work and were brought into the U.S. illegally.48 Money laundering is another statute that has been used as the basis of an indictment against employers.49

 

Social Security Administration No-Match Letters

DHS has promulgated final and supplemental rules regarding securing a “safe harbor” for employers who receive “No-Match” letters from the Social Security Administration (SSA).50  The letters indicate that the social security number that the employer is using to report social security wages does not match the name of the employee. A no-match can be a simple matter of an employee who is using her married name but who did not report a name change to social security. A no-match also can indicate an undocumented alien. The proposed rules seek to create a “safe harbor” for employers receiving no-match letters. The rules state that if the employer follows instructions, the no-match letter cannot be used as evidence that the employer has “constructive knowledge” of an undocumented worker. The rules set timelines for employer compliance regarding employees who are the subject of no-match letters. Currently the rules are precluded from implementation due to a preliminary injunction issued by the U.S. District Court of Northern California.51

 

20) DHS has a program whereby employers may register to check the immigration status of their employees.

Reality: True. This program is called E-Verify.52 The program is voluntary except for certain federal contractors. The rule will affect certain federal contractors and subcontractors who are awarded a new contract after May 21, 2009 that includes the Federal Acquisition Regulation (FAR) E-Verify clause.53

 

21) Any foreign national residing in Texas can obtain a driver’s license.

Reality: False. The Real ID Act of 2005 mandated certain requirements for drivers licenses for the individual states.54 Texas driver’s license requirements for foreign nationals who are not permanent residents are found in the Texas Administrative Code.55

 

Conclusion

The future of immigration in our country must be based on reality, not myth. That is the nature of democracy.

Janet B. Beck is certified in Immigration and Nationality Law by the Texas Board of Legal Specialization and has been practicing immigration law since 1987. She is currently a supervising attorney at the University of Houston Law Center Immigration Clinic and has her own immigration law practice.

Endnotes

1.  22 CFR Parts 40, 41   2.  20 CFR §§ 655.107, 731, § 656.40   3.  8 CFR § 214.2(h)(5), 29 CFR § 1910.142, 20 CFR § 655.100 et seq.   4. 42 CFR Part 34   5. 8 USC § 1184(l); 22 CFR § 41.63(c); 45 CFR § 50.1 et seq   6. 8 CFR § 214.2(f)(10)(ii)(A)   7. 8 CFR § 214.2(f)(10(ii)(E)   8. 8 CFR sec 214.2(f)(10)(ii)(C); http://www.dhs.gov/xprevprot/programs/gc_1185221678150.shtm   9. 8 CFR sec. 214.2(f)(5)(iv)   10. 8 USC § 1101(a)(15)(H)   11. 8 USC § 1184(g)(1)(A),(5)   12. 8 USC § 1184(g)(8)   13. 8 USC § 1101(a)(15)(L), 8 CFR § 214.2(l)   14. 8 CFR sec. 214.6, Appendix 1603.D.1 (Annotated) to Annex 1603 of the NAFTA   15. 22 CFR § 41.51(c)   16. 8 USC § 1101(a)(15)(e), 8 CFR § 214.2(e)   17. 8 USC § 1187, 8 CFR § 217   18. 8 USC § 1101(a)(15)(o), 8 USC § 1153(b)(1)(A), 8 CFR §§ 214.2(o), 204.5(h)(1)   19. 8 USC §§ 1153(b)(1)(B), (b)(2); 8 CFR §§ 204.5(i),(k)   20. 8 USC § 1184(m)   21.Plyler v. Doe, 457 U.S. 202 (1982)   22. 8 USC § 1182(a)(2), (9)   23. 8 USC § 1182(a)(9)   24. 8 USC §§ 1182(a)(1),(a)(2), (a)(6) et seq.   25. 8 USC § 1182(a)(6)(C)(ii)   26. 8 USC § 1186a, 8 CFR § 216.  Note: If you are married for two years on the date of your interview or entry into the U.S., you are not a conditional resident.   27. 8 USC 1151(b)(2); 8 CFR § 204.1   28. 8 USC § 1153(a); 8 CFR § 204.2   29. http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html   30.  8 USC §§ 1427(a), 1430(a); 8 CFR §§ 316, 319.1   31.Id, 8 USC §§ 1101(f), 1427(e)   32. 8 USC §§1427,1428,1430   33. 8 USC §§ 1227, 1101(a)(13)   34. 8 USC §§ 1101(f),(a)(43)   35. http://travel.state.gov/family/adoption/adoption_485.html   36. 8 USC § 1101(b)(1)(E)   37. 8 USC § 1101(b)(1)(F), (G), 8 CFR § 204.3   38. 8 USC § 1401 (c-e), (g), (h)   39. 8 USC § 1431   40. 8 USC § 1433   41. 8 USC § 1440; 8 CFR § 329   42. 8 USC §§ 1439, 1440   43. Memo, Aytes, Acting Dir. Domestic Operations, USCIS, HQPRM 70/6.1.1P (April 3, 2006), AFM at 21.11(b)(2)   44. INA § 319(d), 8 CFR § 319.3   45. http://www.ice.gov/pi/reports/index.htm; http://www.ice.gov/pi/news/factsheets/worksite_cases.htm   46. 8 USC § 1324a(e), 8 CFR § 274a.10, 28 CFR § 68.52   47. 8 USC § 1234a(f)   48. 8 USC § 1324(a)(3)   49. 18 USC § 1957   50. 72 FR 45611, Vol. 72, No. 157, Aug. 15, 2007 Part 274A; 73 FR No. 209, Oct. 28, 2008   51.AFL-CIO v. Chertoff, No. 07-4472 (N.D.Cal. 11/23/07).   52. http://www.dhs.gov/xprevprot/programs/gc_1185221678150.shtm   53. http://www.uscis.gov   54. Real ID Act of 2005, Title II § 201   55. TX Admin Code, Title 37, Part 1, Chapter 15, Subchapter K, Rule 15.171

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