Transcript Document

IMMIGRATION 101
Overview
by Amy R. Novick
Shareholder and Senior Attorney
Maggio & Kattar
11 Dupont Circle, NW
Suite 775
Washington, DC 20036
“Be careful with your immigration
laws, we were careless with ours.”
Chief Ben Wildhorse to Vice President Lyndon Johnson - 1961
Agencies that Administer the Law
THE PLAYERS: 3 main – DHS, DOS, DOL
1. DHS – Department of Homeland Security (Homeland Security Act of 2002)
– consolidated functions and decisions
– established 3 separate agencies (formerly INS)
a. U.S. Citizenship and Immigration Services (USCIS)
Responsible for adjudicating immigration benefits
• Determining eligibility for status
• Granting green cards
• Asylum
• Naturalization
b. Customs and Border Protection (CBP)
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Inspection of people and goods at borders and ports of entry
E.g., inspectors at airports, seaports, etc.
c. Immigration and Customs Enforcement (ICE)
Interior enforcement
• Investigates violations of immigration laws, enforces departures (deportation and
removal)
Agencies that Administer the Law
(continued)
2.
Department of State (DOS)
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Visa processing and issuance
Authority to issue visas (rules governing requirements are
promulgated and interpretation by DHS)
Security checks
Consular officials have nonreviewable discretion to deny
visas, with limited exceptions
3. Department of Labor (DOL)
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Involved in those cases where US labor market is tested and
workforce issue involved
E.g., H-1B labor condition attestation process
E.g., Employment-based Immigrant visas where labor
certification is required
Investigates complaints against employers regarding working
conditions and wages
Agencies that Administer the Law
(continued)
4. Department of Justice (DOJ)
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Executive Office for Immigration Review (EOIR)
-Immigration Court, directed by Attorney General
-Foreign nationals apprehended by CBP or ICE appear before immigration judge
(not ALJ)
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Appeals to Board of Immigration Appeals (BIA), then to circuit
courts
Office of Special Counsel
-Responsible for immigration-related employment discrimination
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Office of the Chief Administrative Hearing Officer (OCAHO)
-ALJs hear anti-discrimination claims and cases where sanctions imposed on
employers who illegally hire foreign nationals
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Board of Appellate Review (BAR)
-Hears cased involving denaturalization
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Department of Health and Human Services (HHS)
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Limited set of decisions regarding unaccompanied minors in
removal proceedings
Sources of Law
The patchwork quilt of laws woven together
• Statutory
 1790 Naturalization Act – established requirements for
citizenship
 1882 Chinese Exclusion Act – repealed in 1943
 1924 – National Origins Quota Act
• Favored European immigrants
Sources of Law
(continued)
 1952 Immigration and Nationality Act (INA)
(McCarran-Walter Act)
• Comprehensive immigration legislation that forms core of
contemporary immigration laws
• Established visa allocation preference system based on skills
and family relationships
• List of excludable and deportable individuals
• Entry procedures
• System of relief from deportation
Sources of Law
(continued)
 1965 Amendments
• eliminated national origins quota system
 1980 Refugee Act
 1986 Immigration Reform and Control Act
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legalization and employer sanctions
 1990 Immigration Act
• family unity and employment creation
• Generally literalization of law
 1996-Present
• Generally enforcement, mean-spirited laws
Sources of Law
(continued)
• Regulatory
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8 CFR – mostly INS/DHS, DOJ
20 – DOL
22, 42 – DOS
28 – DOJ
• Administrative
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BIA decisions – precedent, index and non precedent
BALCA – Board of Alien Labor Certification Appeals
AAO – Administrative Appeals Office – USCIS appellate
OCAHO
• Judicial
 District Courts
 Circuit Court
Sources of Law
(continued)
• Agency Memoranda, Cables, Manuals
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DHS Memos, Press Releases
DOS Cables
DOL Field Guidance (TALS)
Foreign Affairs Manual – 9 FAM
Field Manuals – Inspectors, Adjudications
Immigration Judge Manual
Instructions to forms
Visa
I-94 Card
Visa Application
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Must Prove Eligibility For Visa
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If USCIS Approval Of Petition Is Required, Applicant
Must Have Approval Notice & Consular Officer Will
Request Electronic Notification From Kentucky
Consular Center
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Applicants Must Present Valid Passports &
Supporting Documents
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Security & Name Checks
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Upon Issuance Of Visa, May Seek Admission To U.S.
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Exceptions – Most Canadians & Temporary Visitors
From Certain Countries
Nonimmigrant Visa Classifications
INA § 101 (a)(15)
Type of Visitor
Classification
Type of Visitor
Classification
Diplomats, Their Families & Staff
A-1, A-2, A-3, A-4, and A-5
Intra-Company Transferees
L-1
Visitor for Business or Pleasure
B-1/B-2
Vocational Students
M
In Transit Through the U.S.
C
Parent of Special Immigrant
N
Crewpersons
D
Individuals of Extraordinary
Ability and Their Lackeys
O
Workers Entering Based Upon
Treaty
E-1, E-2, E-3, H-1B1, and TN
Culturally Specific Artists and
Performers
P
Students
F-1
Cultural Exchange Workers
Q
NGO Reps, NGO Employees,
Family Members& Household
Staff
G-1, G-2, G-3, G-4, G-5
Religious Workers
R
Temporary Workers & Trainees
H-1B, H-2A, H-2B, & H-3
Government Informants
S
International Media
Representatives
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Victims of Human Trafficking
T
Trainees, Interns, & Scholars
J-1
Victims of Specific Criminal
Activity
U
Fiance(e)s of US Citizens and
Spouses of US Citizens
K-1 and K-3
Beneficiaries of Approved
Immigrant Visas Awaiting Visas
V
Admission of Nonimmigrants
INA § 214
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INA Section 214(a) gives the Attorney General the authority to
determine the period of admission for nonimmigrants.
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Every alien (other than a nonimmigrant described in subparagraph (L)
or (V) of section 1101(a)(15) of this title, and other than a
nonimmigrant described in any provision of section 1101(a)(15)(H)(i)
of this title except subclause (b)(1) of such section) shall be presumed
to be an immigrant until he establishes to the satisfaction of the
consular officer, at the time of application for a visa, and the
immigration officers, at the time of application for admission, that he is
entitled to a nonimmigrant status under section 1101(a)(15) of this
title…(INA Section 214(b).
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INA Section 214(c) sets forth additional documentary and evidentiary
requirements necessary to obtain a nonimmigrant visa.
Visitors
B-1/B-2 – Visitor for business or for pleasure – 13 million issued
annually
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Cannot work or obtain remuneration
Must depart at end of visit
Must maintain residence in a foreign country which national does not
intended to abandon
Business (B-1)
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Can engage in commercial transactions
Negotiate contacts
Consult with business associates
Litigate
Attend conferences
Undertake independent research
Limited honoraria permitted
Pleasure (B-2)
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Tourism
Medical treatments
Participate in amateur athletics
Visitors
(continued)
VWP – Visa Waiver Program
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Available to foreign nationals from countries of low rates
of visa denials
Reciprocal arrangements with U.S. visitors
Individual need not apply for visa in advance
90 days only
cannot change status once in the U.S.
other limitations or rights once in U.S.
Educational
F-1 – Foreign Students
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Students who engage in an academic full course of study
Admitted for duration of status (D/S)
Monitored by DSO (designated school official) at an approved
institution
Eligible for optional practical training (OPT) for 12 months after
completion of program
29 mo. OPT for students in STEM fields: science, technology,
engineering and math.
Educational
(continued)
M-1 – Vocational Students
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Similar to F-1 but for vocational institutions
J-1– Exchange Visitors
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Exchange students coming through programs specifically approved by
the State Department
Two year home residency requirement
Waivers are available
Work - Most Common
A Threat to the American Workforce or Fueling Economic Growth?
H – temporary workers and trainees
 H-1B – for temporary professionals
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Must have sponsoring employer
Persons who will engage in a specialty occupation, defined expansively
Position requires specialized knowledge
Must have a bachelor’s degree or higher or its equivalent (experience for
education is permissible)
Employer must obtain certification from DOL in which employer attests
among other things, that the wage paid to alien is the prevailing wage or no
less than wage paid to similarly qualified workers
Spouse and dependents cannot work
Six year limit with exceptions
65,000 annual quota – can file April 1 for positions starting October 1, an
additional 20,000 H-1B visas are given to foreign nationals with advanced
degrees from U.S. universities & colleges
Work - Most Common
(continued)
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H-1B Employer Liabilities
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Pay government fees totaling $2320 per worker.
Higher salary to H workers when prevailing wage above the actual wage.
Notify workers of plan to employ H worker.
Liable for back wages to foreign worker.
Retention of Paperwork for all H-1B workers.
Inability to plan and allocate resources in the U.S.
Lost revenues associated with H-1B filings that are not selected for
processing.
Work - Most Common
(continued)
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H-1B Workers Stimulate U.S. Economic Growth
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“[W]hile nine out of 10 of our employees are citizens or permanent residents, our need to
find specialized skills required to run our business successfully requires us to look at
candidates from around the globe – many of whom are already in the U.S. studying at one of
our great universities. It is no stretch to say that without these employees, we might not be
able to develop future revolutionary products like the next Gmail or Google Earth.”
-Laszlo Bock, Vice-President for People Operations, Google.
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National Foundation For American Policy Report found that for each H-1B employee that a
company hires, employers with less than 5,000 employees hire an additional 7.5 workers.
Companies with more than 5,000 employees hire an additional 4.7 workers and those
entities with 5,000 plus workers hire an additional 4.0 workers.
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National Foundation For American Policy Report confirms that employers will go out of their
way by paying additional fees and higher salaries to hire H-1B workers because these
workers have specific skill sets that are in short supply.
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National Foundation For American Policy’s survey of companies reveal that the numerical
limitations of H-1B visas result in companies resorting to locating jobs offshore due to an
inability to find qualified U.S. workers.
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Forty-six percent of surveyed companies stated that they “delayed or changed plans for
projects due to the unavailability of H-1B visas.” Seventy-four percent reported that the lack
of H-1B visas could affect their competitiveness against companies outside the U.S.
Work - Most Common
(continued)
H – temporary workers and trainees (continued)
 H-1C – for certain nurses
 H-2A/H-2B – temporary or seasonal positions where no U.S.
workers are available
 H-3 – trainees in certain fields
E-3 temporary professional workers from Australia
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Similar to H-1B
Spouses can work
Work - Most Common
(continued)
L – intracompany transferees: managers, executives, or those with
specialized knowledge
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Have been employed abroad by affiliate, subsidiary, branch, or parent to
corporation with U.S. entity
Employed 1 year of last 3 years
Spouse can work
5/7 year limit
Direct pathway to immigrant visa as executive/manager
E-1/E-2 – Treaty Trader or Investor
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Must be national of country where reciprocal treaty of commerce or
navigation between U.S. and country of nationality
Approximately 80 countries
Spouse can work
Does not need sponsoring employer
Can be renewed indefinitely
trade must be substantial
E-2 Treaty Investor - investment in new commercial enterprise must be
substantial
No set formula for determining “substantial” - $100,000 or more often
required
Work - Most Common
(continued)
O – aliens of “extraordinary ability” in arts, science, education, business,
athletics
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Must show sustained national or international acclaim
Must have sponsoring employer
Can be renewed indefinitely
P – performers – athletes and entertainers
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Must be internationally recognized
Similar to O
Q – coming to participate in cultural exchange programs
R – religious workers
TN – Under NAFTA -- Canadian or Mexican professionals
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Similar to H-1B but no limitations on length of stay
Work (Miscellaneous)
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A – diplomats, their families and attendants
G – employees of international organizations, their families and
domestic employees
I – journalists
Miscellaneous
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K – Fiancés
S – Persons who have information concerning criminal enterprise or
organizations
T – subjects of trafficking
U – victims of serious violent crimes
D – transit visas
C – crew members (airline, vessels)
Visa Bulletin for October 2008
Immigrant Visas
About 700,000 immigrant visas available per year
• Employment-Based Categories – 140,000 visas
- Employees Who Require Certification From the Department Of
Labor
- Employees Who Are Pre-Certified
• Family-Based Categories
- Immediate Relatives
- Other Family-Based Categories
• Asylees & Refugees
• Special Immigrants
• Others (Section 13 of the Act, Cancellation of Removal)
Employment-Based Immigrant Visas
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First Preference Category
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Second Preference Category
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Approved Labor Certification Applications For Positions That Require Less
Than An Advanced Degree, But At Least 2 Years Of Experience
Other Workers
Fourth Preference Category
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Exceptional Ability Or Advanced Degree Professionals Whose Work Is In The
National Interest
Approved Labor Certification Applications For Positions That Require An
Advanced Degree Or Its Equivalent
Third Preference Category
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Multinational Executives and Managers
Outstanding Researchers
Extraordinary Ability
Religious Workers
Person seeking reacquisition of citizenship or permanent resident status.
Retired G-4 officer and family and the widow of G-4 employees or retired
employees
Panama Canal Treaty employees
Fifth Preference
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Employment Creation Visas
Family-Based Immigration
§ 203(a) - allocation of immigrant visas
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480,000 visas available for preference categories annually
minus number of immediate relatives
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Persons who have a familial relationship with a U.S. citizen
(USC) or lawful permanent resident )(LPR) may seek status
through a petition filed by a family member
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INA defines all terms, including child, marriage, parent,
siblings, etc.
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USC or LPR is petitioner; foreign national is beneficiary
Preference Categories
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Family 1st preference – unmarried sons and daughters of USC
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Family 2nd A preference – spouses or children of LPRs
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Family 2nd B preference—unmarried sons or daughters of LPRs
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Family 3rd preference – married sons and daughters of USC
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Family 4th preference – brothers and sisters of USC, who are at
least 21 years of age
Child defined as unmarried individual under the age of 21 § 101(b)
Children can “age out” – become ineligible
CSPA – Child Status Protection Act (CSPA) of 2002 provides special
ameliorative provisions
Immediate Relatives of U.S. Citizens
(children, spouses, parents)
• Child, upon turning 21 – can file for parents
• USC spouse can file a petition on behalf of foreign national spouse
• Marriage-based petition
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Persons who have not been married for at least two years at time of
applying for LPR status receive conditional resident status
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Must apply to remove condition within 90 days of 2nd anniversary of the
granting of CR
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Must submit evidence that marriage continues to be valid
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Waivers are available if marriage has been terminated
Consular Processing
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CIS notifies Department of State National Visa Center upon
approval of I-140
National Visa Center will commence application process by
sending forms to the applicant for completion
Applicants must present police clearances from each country
where they have lived since the age of 16
Military records may be required
Visa interview will be scheduled when all necessary
documents have been assembled
Medical examination conducted in-country at the time of the
interview
Upon approval of visa application, immigrant visa is placed in
passport and the individual may enter the U.S. as LPR within
6 months of interview
Comprehensive Immigration Reform
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Increase temporary visa numbers (for both skilled and unskilled workers);
Eradicate visa per country quotas
Increase U.S. companies’ ability to compete for highly skilled workers in the
global marketplace
CIR facilitates assimilation into American society, not Amnesty
Credit individuals with strong work ethic and commitment to selfimprovement
UC San Diego study shows that illegal entrants would prefer to in guest
worker program
Facilitate Mexican government’s ability to develop long-term solutions for
the communities with high instance of illegal entry to the U.S
Recognizes reality of American economy’s reliance of immigrant workforce.
Steers American society from the Prohibition, zero tolerance mentality that
has permeated throughout certain American communities
Enforcement only strategy gives individuals no realistic opportunity to enter
the U.S. legally
Proposals To Increase Enforcement Without
Comprehensive Immigration Reform
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E-Verify
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A Department of Homeland Security-sponsored survey raised serious
doubts about this program’s capacity to uncover document fraud.
The report also pointed out that use of E-Verify will increase the likelihood of
lawsuits against employers for alleged violations of the anti-discrimination
and document abuse provisions of the Immigration & Nationality Act.
E-Verify will use information submitted by employers to the Social Security
Administration and the Internal Revenue Service that is inconsistent with
information in these agencies’ systems as “proof” of an individual’s
ineligibility for employment. The DHS-sponsored report estimates an 8%
error rate. If an employer does not take action to rectify the situation
quickly, DHS could levy sanctions against the employer for “knowingly”
hiring an undocumented worker.
To implement a nationwide mandatory E-Verify program, conservative
estimates state that it would cost $765 million from 2009 to 2012.
Increased Enforcement Without Reform Undermines
American Economic Stability
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SAVE Act (Also known as the Full Employment Act For Immigration Lawyers)
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Would make mandatory the use of E-Verify for all employers.
Enactment of the SAVE Act would decrease federal revenues by $17.3
billion as undocumented workers are increasingly paid outside the tax system.
The SAVE Act would result in the hiring of new federal judges, increasing
direct spending by $30 million.
Report by Center for Comparative Immigration Studies, UC-San Diego shows
that tougher enforcement measures, including raids, detention and separation
from U.S. citizen family members has not resulted in a decrease in illegal
immigration.
Undocumented workers are relocating families to the U.S., rather than returning
to Mexico. Longer stays are the result of the increased dangers of entering
without inspection through the use of “coyotes” or smugglers.
Documentation is critical to migrants’ ability to assimilate. Documented workers
from same communities in Mexico have a high school completion rate of 80%.
American communities have begun to reverse prior anti-immigrant legislation
because detrimental economic impact. (e.g. Arizona and Colorado guest worker
programs).
Basic Terminology
INA § 101(a) sets out key definitions
Nonimmigrant vs. Immigrant
Key distinction – temporary vs. permanent and matter of intent
Presumption of intent §214(b)
• Every alien shall be presumed to be an immigrant until he
establishes to a consular officer and immigration officer at the time
of application for admission that he is entitled to a nonimmigrant
status
• Immigrant – defined at INA §101(a)(15)
Means every alien except an alien within one of the following
classes of nonimmigrant aliens as listed in INA §101(a)(15)
Green Card
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Used to be a green colored card that was issued to lawful
permanent residents (now a white card)
Often used interchangeably – erroneously – as work permit.
Basic Terminology
(continued)
Lawful Permanent Resident vs. Citizen
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LPR are here permanently but do not have the same rights as
USC
Can be deported or otherwise lose status
Can be subject to ex post facto laws
Cannot vote or serve on a jury
Not entitled to full panoply of benefits or jobs as USC
Must apply for citizenship (5 yr/3yr wait)
Unlawful Presence – important concept enacted in 1996
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Overstayed visa and out of status
3 year bar – 180 days
10 year bar – 365 days
Triggered only if you leave the U.S.