the v1ew that ali immigrants who violate

immigration laws should face strict

enforcement; and (4) the perception that
refugee admissions and our asylum laws are
too generous. The administration has
expressed preference far a skills-based
immigration system and has proposed
eliminating sorne family-based immigration
categories, 37 which, it argues, attract low-
skilled workers.
Several of the administration's proposals
have been met with court challenges that are
addressed in their relevant sections of this
book. The President issued two executive
orders banning immigrants from Muslim-
majority countries that were later enjoined by
federal courts. 38 A third attempt to ban
immigrants from certain countries was a
September 24, 2017 Presidential Proclamation
entitled "Enhancing Vetting Capabilities and
Processes far Detecting Attempted Entry into
the United States by Terrorists or Other Public-
Safety Threats, 39 otherwise known as Muslim
Ban 3 .0.
On June 26, 2018, following additional legal
challenges, the Supreme Court in a 5-4
decision in Trump v. Hawaii, 585 U.S. _
(2018), 4º determined that the Presidential
Proclamation was lawfully exercised pursuant
to the broad discretion granted to the President
under INA § 212(f), which allows the
suspension or imposition of restrictions on the
entry of any foreign national to the United

p. 13
States. lt also held that the Proclamation did
not violate the Establishment Clause. This is an
important case because it touches on many
issues regarding presidential powers.
On April 18, 2017, the President signed an
Executive Order entitled "Buy American and
Hire American" 41 that seeks to maximize
"through terms and conditions of Federal
financia! assistance awards and Federal
procurements, the use of goods, products, and
materials produced in the United States."
Additionally, the Order seeks to "rigorously
enforce and administer the laws governing
entry into the United States of workers from
abroad," in order to protect the economic
interests of U.S. workers. The effects of these
orders are discussed 1n Chapter 3,
Nonimmigrant Visas for lntracompany
Transferees, Trade and lnvestment, and
Professional Employment, and Chapter 7,
Employment-Based and Self-Sponsored
lmmigration.
A signiflcant increase in the number of
foreign nationals seeking asylum in the United
States at the U.S.- Mexican border, particularly
families from Central America, has prompted
the iritroduction of a variety of policies meant
to discourage migration. In May 2018, then-
Attorney General Jeffrey Sessions announced
a "zero tolerance" immigration policy, where
individuals, including parents who crossed the
border seeking asylum, were prosecuted
criminally. This culminated in the deliberate
separation of children from their parents,
sending the children to shelters and detention
facilities in what became known as the family
separation policy. Widespread public
opposition caused the policy to be withdrawn.
At the time of writing this edition of the book,
new efforts to stem the flow of asylum seekers
continue to be introduced, including the
Migration Protection Protocols,42 which
requires asylum seekers entering from Mexico
to be returned there while their asylum
application is processed in the United States.
The case is currently under challenge. 43

C. The lmmigration System Today

As the history of immigration laws reveal, the

legislative branch, through Congress, has
majar authority in determining immigration
policy. While Congress has considerable power
to create the framework and standards that
govern immigration policy, most of the
authority to decide which particular foreign
nationals get approved for a visa or can remain
in the United States rests with the Executive
Branch agencies that interpret and implement
the laws. The

p. 14
federal courts also play a role in rev1ew1ng a
statute, regulation, or decision and determining
whether it should be modifled, explained, or
discarded. The role of these government
entities is depicted in Figure 1.1.

Figure 1.1

Government Entities lnvolved in lmplementing

and lnterpreting lmmigration Laws

Cong.-.sslon■ I Branch Ex■cutiwt Bnndl Judlcl■I Bnnch

• Passes laws • Formulates regulations • Reviews regulations,

• lmplements laws statutes, and lower-<:ourt
declslons

DHS implements immigration laws.

Designed to secure the nation from any threats
it might face, DHS has seven major agencies
under its authority of which three - USCIS,
CBP, and ICE - are relevant to immigration law.
ICE is divided into two sections: Enforcement
and Removal Operations, or ERO, which is
responsible for detaining and removing those
who have violated U.S. immigration laws; and
Homeland Security lnvestigations, or HSI,
which is responsible for investigating cross-
border criminal activity.
In addition to the immigration agencies
under the aegis of DHS, there are three other
federal agencies that play a direct role in
immigration decision making:

■ The Department of State, or DOS, which

maintains consular offlces in countries
throughout the world where foreign
nationals can apply to obtain visas to enter
the United States on a temporary or
permanent basis. lt also regulates the entry
of refugees into the United States through
 the Bureau of Population, Refugee, and
Migration, or PRM, which is described by
the DOS as the entity that "promotes U.S.
interests by providing protection, easing
suffering, and resolving the plight of
persecuted and forcibly displaced people
around the world. We do this by coordinating
humanitarian policy and diplomacy,
providing life-sustaining assistance, working
with multilateral organizations to build
global partnerships, and promoting best
practices in humanitarian response."44
■ The Department of Labor, or DOL, which is
responsible far reviewing and approving
certain employment-based applications far
the beneflt of foreign workers. lt must certify
that the position to be fllled by the foreign
worker is one that does not undercut the
wages of or displace a capable and available
American worker, thus acting as a
gatekeeper to protect American jobs.
■ The Executive Office for lmmigration
Review, or EOIR, which is charged with
interpreting and administering the nation's
immigration laws and adjudicates the
immigration cases of those in removal
proceedings to determine if a foreign
national can stay in the United States or
must leave. lt is part of the DOJ and, under
delegated authority from the Attorney
General of the United States, conducts
immigration court proceedings and engages
in appellate review of decisions made by
immigration judges.

p. 15
 Figure 1.2

Government Agencies lnvolved in the

Administration of lmmigration Laws

Execul1ve Branch

Ocpt of Justice, Execut1ve

Dept of Statc
Dept of Homeland Office far lmmeg,ation Dept of l..!bor
Consular Processmg
Secuoty {OHS) Rev1ew (DOl)
(DDS)
(EOIR)

Conc.ular Offic~
tmm1gratton and Customs
Enforcement
(ICT)
L Board of lmm1grat1on
Appeals
(BIA)
.:1nd fmmagrat1on Courts
L Employment and Tra1nmg
Admin
Office of Foreign Labor
Cert1fic.at1on (ETA)

Burcau of Refu9Cfl.. U.S C1t1zcnsh,p and

Populc1t1on, and M1grat1on lmm1grat1on SeMce
(PRM) iUSCISI

Customs ,m d Borde,
Protect1on
iCBPi

The ORR, within the Administration for

Children and Families, HHS, has an indirect role
with respect to the foreign-born . lt administers
programs that support refugees, and minors
who arrive in the United States without
parents.
Figure 1.2 depicts the myriad agencies that
have any role in overseeing immigration laws.
Because so many of them are involved in
administering immigration laws, each
independent from the other, it is often
necessary for the immigration practitioner to
determine which agency or agencies are
handling a case and review procedures and
requirements of each of these individual
entities. An immigrant may interface with
multiple agencies in any one case or situation.
e EXAMPLE

Domenic, from ltaly, has been accepted to

attend college in the United States. He needs
to go to the U.S. consulate in ltaly, under the
jurisdiction of the DOS, to obtain a student
visa 45 to enter the country. The consular
officer will review his application and approve
or deny his request, depending on whether or
not he meets the relevant criteria. lf Domenic
receives a visa, he will be able to board a
plane and arrive at a U.S. airport where an
officer from CBP will inspect him. The CBP
officer will view Domenic as an applicant for
admission to the United States and review his
request to enter in order to decide, ultimately,
if Domenic can enter the United States. This
will depend on whether the officer discovers
discrepancies in his application or has

p. 16
security or other concerns about his reason
for being here. Once Domenic enters the
country, he is expected to attend classes,
since this is the purpose for which he was
issued a visa. lf he fails to attend, the school
can report him to ICE, which may place him in
removal or deportation proceedings where a
U.S. immigration judge will decide in
immigration court if he will have to leave the
country. The court is part of the DOJ's EOIR. lf
Domenic can show he had a good reason for
not attending class - perhaps he was very ill
- he can apply to the USCIS to ask that it
reinstate his student status. Once reinstated,
Domenic can explain this to the immigration
judge and ask him or her to terminate his
proceedings so that he will no longer be
subject to deportation.

In this example, Domenic interfaced with

flve different government departments or
agencies: the DOS, CBP, ICE, the EOIR, and the
USCIS. In such a scenario, an immigration
practitioner must make sure s/he files the
correct application, petition, or document w ith
the correct agency and that the different
decision makers are aware of decisions made
by another agency involved in the case.

D. Sources of lmmigration Law

lmmigration law is governed by a variety of

laws, from the U.S. Constitution and primary
sources of law such as statutes, regu lations,
and case law, to secondary sources that can
incl ude interna! memoranda interpreting these
documents. Ali of these sources are important
when seeking to understand immigration law
in general or a specific provision and its
application in particular. We examine both the
primary and secondary sources of law.

D.1. lmmigration and the U.S. Constitution

The U.S. Supreme Court has looked to the

Constitution in conferring Congress the power
to regulate immigration law and policy. In
particular, in the Passenger Cases discussed
earlier, the Court found that the Commerce
Clause in U.S. Constitution Art. 1, §8 el. 3, which
authorizes Congress to "regulate commerce
with foreign nations," provides a basis to
establish Congressional power. The
Naturalization Clause contained in U.S.
Constitution Art. 1, §8, el. 4 grants Congress the
power to "establish a uniform rule of
naturalization." Other powers in the
Constitution include the right of Congress to
declare war, clase our borders, and remove
enemy foreign nationals. In maintaining that
Congress has the ultimate power to control
immigration policy, the Supreme Court found
that the power to exclude the foreign-born was
an "incident of sovereignty." 46 The Constitution
limits governmental authority when any
person, including a non-citizen, is deprived of
his or her liberty or property without the "due
process of

p. 17
law" as proscribed 1n the Fourteenth
Amendment. 47 Far immigration purposes,
therefore, no one within the United States can
be deported without sorne form of adjudication
to determine whether the removal decision is
appropriate.
Under the Supremacy Clause,48 the federal
government's laws supersede state laws when
there is a conflict. This is particularly important
when it comes to immigration laws. The scope
of federal regulation of immigration law has
often been the subject of litigation related to
the concept known as preemption, which
means when there is a conflict between federal
law and state or local law, the federal law
governs. When a state or local statute presents
an obstacle to the accomplishment of a federal
purpose, or when a person or entity cannot
comply with both the state and federal law,
preemption requires that the latter govern.
Federal case law continues to be invoked to
determine the division of power between
federal and state authorities with respect to
immigration enforcement.
 Case for Discussion

Due to a signiflcant increase in its Latino

population, the City Council of Harmony
believes there are more unauthorized
immigrants who are moving there. The
Harmony City Council and Mayor want to
limit the number of such immigrants who
reside in Harmony. lt has passed a law
requiring landlords to verify the immigration
status of prospective tenants.

■ Does this law raise any constitutional

issues?

D.2. Primary Sources

Since immigration is federal law, pnmary

sources include federal statutes, regulations,
and federal case law.

D.2.a. Statutes

Most immigration laws emanate from statutes

passed by Congress. Most statutes related to
immigration law are incorporated in the
lmmigration and Nationality Act, or INA,
contained in Title 8 of the U.S. Code, Aliens and
Nationality, referred to as 8 U.S.C. Typically, the
INA is referenced when dealing with
government agencies and courts governed by
the EOIR, while 8 U.S.C. is referenced in cases
befare federal and district courts. Throughout
this book, we reference only the INA when we
cite to a particular statute.

p. 18
D.2.b. Regulations

After a statute is passed, the agency

responsible for implementing it develops
regulations that describe in more detail the
rules and procedures that they will follow in
arder to carry out the intent of Congress as
reflected in the statute. Therefore, statutes and
regulations work in tandem, with the former
providing the framework and the latter the
flesh. Regulations are published in the Federal
Register, usually allowing for public comment,
and then re-published at a later date as a final
rule. The regulations pertaining to immigration
are generally found at Title 8 of the Code of
Federal Regulations, or 8 C.F.R. The
numbering for the sections of the Code will
generally mirror the section numbers for the
statute it interprets, in this case, the INA.
However, 8 C.F.R. is divided into two sections,
one that relates to the DHS - numbered 1-499
- and one that relates to the Executive Off1ce
for lmmigration Review - numbered 1001-1337.
While the different sections usually contain the
same content, it is probably wise to cross
check just to be certain. Since the DOS plays a
majar role regarding applications to come to
the United States made abroad, it is also
important to be familiar with the regulations
that govern its functions which can be found at
Title 22 of the C.F.R. There are also regulations
related to the DOL's role in immigration matters
in other sections of the Code.

D.2.c. Case Law

Case law 1s a fundamental source of
immigration law as it interprets statutes,
regulations, and procedures to ensure they
express the intent of Congress, are consistent
with other laws, and do not violate the U.S.
Constitution. When a decision is meant to
create a principie or rule that should apply to
similar situations, it is called a precedent
decision. Both judicial and administrative
cases guide immigration law. Judicial case law
derives from the federal courts, including the
United States Supreme Court and the circuit
courts. Decisions made by the Supreme Court
bind all courts around the country, whereas a
decision of a circuit court is binding only within
the jurisdiction of the court that issued it.
Administrative case law includes decisions
made by the BIA, the appellate division of the
EOIR. The decision of the BIA is binding on ali
immigration courts around the country. Other
administrative case law can be found as
published opinions of the Administrative
Appeals Office, or AAO, the appeals division of
USCIS, and the Board of Alien Labor
Certification Appeals, or BALCA, which hears
appeals of denials by the DOL of employment-
based sponsored applications.

D.3. Secondary Sources

Secondary sources help to interpret and

analyze primary source materials. In
immigration law, there is an array of options.
We discuss just sorne in the following sections.

p. 19
D.3.a. Websites

Each key federal agency has a website that

lists procedures, forms, and other components
of immigration practice for which it 1s
responsible. The USCIS' website, at
www.uscis.gov, provides instructions on
various applications it adjudicates, as well as
eligibility and procedure with respect to
achieving LPR status and citizenship. lt also
provides access to relevant forms for
applications, which it constantly updates.
Befare completing any form from a source
other than the USCIS' website, it is prudent to
check that it is the most up-to-date version
because using an old form could result in an
application being rejected and an important
deadline being missed. The DOS, Bureau of
Consular Affairs, also has an extensive website
describing forms and procedures far obtaining
visas.49

Case for Discussion

■
Tran was born in Vietnam and is now a
lawful permanent resident in the United
States, living in Pennsylvania. She comes
into an immigration law offlce requesting
assistance to apply for citizenship. She
 meets all the legal requirements. Practitioner
Judy is asked to flnd the correct form, the
cost of the application, and the address
where it should be mailed. Judy knows that,
since Tran is applying for a beneflt, the
correct agency that Tran will interface with is
the USCIS.

■ How should Judy flnd the correct form

and the other information requested?
■ Will Judy use primary or secondary
sources in her search?

D.3.b. Other Agency Guidance

Agencies publish handbooks, guidance, and

manuals to be used both by their staff in
determining procedures and by those in the
general public to make sure applicable
eligibility criteria is met. Many of these are also
available on the speciflc website for the agency
in question. The USCIS website has a special
section devoted to manuals and guidance. 50
The Department of State Foreign Affairs
Manual, abbreviated as FAM, contains
directives and interpretations of immigration
law available to consular officers and the
public and is a very useful source.51

p.20
D.3.c. lnternational Law

lnternational law is also a source that can be

used as guidance or authority to pursue a
certain course of action, particularly in areas
that concern human rights, including asylum
cases. Of particular note is the 1951 Convention
Relating to the Status of Refugees, a
multilateral treaty developed by the United
Nations, which was followed by the 1967
Protocol Relating to the Status of Refugees.
The United States has ratifled the latter but not
the former.

D.3.d. Treatises and Casebooks

Treatises, casebooks, and journals explain

various aspects of immigration laws and
procedures. In researching a matter,
practitioners often begin with a treatise and
casebook and then investigate the primary
sources cited in the material.

E. Understanding Basic lmmigration

Documents and Forms

There are many documents and forms used in

immigration law and practitioners must
develop an understanding of how to recognize
and interpret them . We review sorne in the
following sections.

E. l . A Nonimmigrant Visa
This nonimmigrant visa, as shown in Figure 1.3,
contains the name and date of birth of the
holder and the country and particular consular
offlce where the visa was issued. In addition,
we can learn the date and the purpose for
which the visa was issued and the length of the
visa's validity. lt is stamped 81/8-2 visa,
denoting a tourist visa, issued for the purpose
of traveling temporarily to the United States. lt
was issued on April 8, 2003 in Seoul, South
Korea and is a multi-entry visa, valid for ten
years. This means the holder can travel back
and forth between her home country and the
United States using this visa to gain entry as a
tourist theoretically for as many times as she
likes in that ten-year period. lf, instead of an M
for "multiple entries," the numeral 1 appeared
under Entries, then the visa would only be valid
for a single visit to the United States. However,
the actual time the foreign national can remain
in the country in this category will be
determined by the C8P offlcer at the border,
who will entera stamp in the person's passport
to indicate this period. A selection of
nonimmigrant visa categories is shown in
Table 1.1.

E.2. 1-94 Arrival/Departure Record Card

Prior to April 2013, foreign nationals entering

the United States as nonimmigrants,
immigrants, or refugees were given a small
white or green card, called an 1-94
Arrival/Departure Record card, which would be
stamped and stapled into their passports.

p. 21
 Figure 1.3

Nonimmigrant Visa Document

Source: U.S. Department of State.

ELEL<-<HAPP.

----
8~0R50010l3 07183SE0001L

---__··-
·--·
_
_.,
.._ For . . _ ., an

-SEIIIS--
~ __ _ ......
_. _...,...,.,.
111111...,,ou

U.S. lllalnolqlocll>
--lona,oumey,uy
In . . u.s.
viur
s.. - - .io.

Table 1.1 Selection of Nonimmigrant Visa

Categories

Purpose of Travel Visa

Category

Athlete, amateur ar professianal B-1

(campeting far prize maney anly)

Au pair (exchange visitar) j

Australian prafessianal specia lty E-3

Barder Crossing Card: Mexica BCC

Business visitar B-1

CNMl-anly transitianal warker CW-1

Crewmember D

Diplamat ar foreign gavernment afflcial A

Damestic emplayee ar nanny - must B-1

be accampanying a foreign natianal
emplayer

p.22
1 Employee of a designated Gl-G5, NATO
internatianal arganizatian ar NATO

Exchange visitar J

Fareign military persannel A-2, NATO 1-6

statianed in the United States

Fareign natianal with extraardinary O

ability in Sciences, Arts, Educatian,
Business, ar Athletics 1
t
Free Trade Agreement (FTA) 1
H-1 B1 , Chile H-
Prafessianal: Chile, Singapare 1 B1, Singapare

lnternatianal cultural exchange Q

visitar

lntra-campany transferee L
1

Medical treatment, visitar far B-2

Media, jaurnalist

NAFTA prafessianal warker: TN/TD

Mexica, Canada

Perfarming athlete, artist, p

entertainer

Physician J, H-1 B

Prafessar, schalar, teacher J

(exchange visitar)

Religiaus warker R

Specialty accupatians in flelds H-1 B

requiring highly specialized
knawledge
Specialty occupations in fields H-1 B
requiring highly specialized
knowledge

Student: academic, vocational F, M

Temporary agricultura! worker H-2A

Temporary worker performing H-2B

other services or labor of a
temporary or seasonal nature

Tourism, vacation, pleasure visitar B-2

Training in a program not primarily H-3

for employment
,- t- -

lrreaty trader/treaty investor E

Transiting the United States e

Victim of criminal activity u
Victim of human trafficking T
-
Nonimmigrant (V) Visa for Spouse V
and Children of a Lawful
I Permanent Resident (LPR)

Source: U.S. Department of State, available at

htt ps://t rave 1.state. gov/ co nte nt/t ra ve 1/en/ us-
visas/vi sa-i nformation-resources/a11-vi sa-
categories.htm l.

p.23
 Figure 1.4

New 1-94 Document

Source: USCIS.

U .S. Cu s toms a nd Border Protection

G•U-tf._..,

Adm Ist Ion

-----------------------
-..FAO

Rttrteval

Alllnl1aaon (1-M) RffOt'1I NulllNr: IIOOOIIIOU

A-.et Untl 0111 (IIMIDOrfYYY): 10l10t'2012

Detalla p,ovldecl o. Admlulou(l-9C) fom:

u
LYOIA
81r910IIIGlll200IIII~ 01.-trtNO

Pnapo.1n •- Ptnu»u

°'
0111 Enlr1. , moonm °"11'2012
0nl of Adnallon: 81

p. 24
The card was evidence of lawful admission into
the United States, the expiration date of the
individual's authorized stay (in sorne cases
"D/S," or "duration of stay," 52 was noted in lieu
of a date), and the nonimmigrant classiflcation
under which entry was granted. lt was not
issued to immigrants returning to the United
States. In arder to streamline the admission
process and reduce costs, however, CBP
phased out the 1-94 card. Now, all
nonimmigrants arriving by air or sea no longer
receive a card. Rather, the information is
collected electronically and can be accessed
online at a later time by the foreign national. 53
Those arnv1ng by land and certain
humanitarian immigrants such as refugees,
still receive a paper 1-94 Arrival/Departure
Record card. Those that do not receive one will
be given an admission stamp in his or her
passport or travel document instead,
annotated with the date of admission, the
admission classiflcation, and the date the
period of stay expires. A sample of the
electronic card is in Figure 7.4.