IMMIGRATION LAW

09/06/2016
LESSON 3
Part I
291-306
Statutory Supplement, INA ''101(b), 201, 203, 204, 216.
skim Forms I-130, I-751
Fraudulent Marriages
Marriage: 1. Legally valid; 2. Factually genuine
Two types of sham marriages:
1. Bilateral arrangements: Both spouses marry solely to facilitate immigration; beneficiary
(intending immigrant spouse) pays the petitioner (citizen/LPR spouse)
2. Unilateral fraud: Beneficiary deceives petitioner
- Husband and Wife interviewed separately by the INS (immigration and naturalization
service)
- IMFA Immigration Marriage Fraud Amendments of 1986 aimed at reducing
marriage fraud.
SECTION 2(a) Central Core of IMFA added 216 to INA
216 (a)(1)
Introduced the concept of conditional permanent residence
(a) In general - (1) Conditional basis for status-Notwithstanding any other provision of
this Act, an alien spouse (as defined in subsection (h)(1)) and an alien son or daughter
(as defined in subsection (h)(2)) shall be considered, at the time of obtaining the
status of an alien lawfully admitted for permanent residence, to have obtained such
status on a conditional basis subject to the provisions of this section.
Conditions Subsequent:
216 (b)(1)
216 (b)(2)
216 (c)
216 (d)(2)(A)
216 (c)(2)(A)
216(c)(3)(A)
216(d)(1)
216(c)(3)(B)

216(c)(3)(C)
216(c)(3)(D)
Waiver Provisions: If conditions failed to meet.
- INA 216 (c)(4)
Three Types of Discretionary Waivers:

216(c)(4)(A) Extreme
Hardship

216(c)(4)(B) beneficiary
not at fault

216(c)(4)((C) Extreme
cruelty

Could be petitioner,
beneficiary or dependent
child

Marriage was terminated

but the conditional resident
was not at fault in failing to
satisfy the conditions
subsequent

Spouses or children who

have either been battered or
otherwise subjected to
extreme cruelty
- Domestic violence aspect

- Additionally, death of the petitioner is a waiver too.

There four waivers could be used by the beneficiary.
216 (h)(2)
The term "alien son or daughter" means an alien who obtains the status of an alien lawfully
admitted for permanent residence (whether on a conditional basis or otherwise) by virtue of
being the son or daughter of an individual through a qualifying marriage.
204 (a)(2)
- Places certain restrictions on the approval of a 2A spousal visa petition (i.e., a petition by
an LPR on behalf of his or her spouse) if the petitioner had obtained his or her LPR status
through a prior marriage to a United States citizen or another LPR.
204 (c)
- Prohibits approval of any visa petition if the beneficiary has previously sought or received
immediate relative or preference status as the spouse of either a United States citizen or an
LPR, and USCIS finds that that marriage was entered into for the purpose of evading the
immigration laws (or that the beneficiary has attempted or conspired to do so).
Problems 5 11

5. Yes. i would advise them to wait until the twenty forth month before coming
into the U.S.. Thus they should wait until their two year wedding anniversary but
before the 6 months. The visa expires after the 27th month, so they could wait till
the 25th month, to avoid getting the conditional permanent residency. If they
wait till the 25th month, B would be issued a 10 years LPR and because he is
married to A, would be eligible after 3 years for his citizenship. but if the
marriage is broken down before the 3rd yr B would have to wait for 5 yrs.

However, if they want to come right away, they could but they would be issued a
conditional permanent green card which last for two years after which they would
petition to get a permanent residency card for ten years. This would cost a lot of
money and would delay timing.
- Enter the country within 6 months
- Must establish that the marriage was legally valid and factually genuine - Must jointly petition for removal of condition during 90-day period immediately preceding
the second anniversary of the persons admission for permanent residence.
- 216 (c); 216(d)(2)(A); 216(c)(2)(A)
6. If his case falls within one of the three discretionary waivers which it does Beneficiary
not at fault, then may be not, otherwise could be terminated.
- No. because when you are coming in as an accompanying spouse, you are not subjected to
the fraudulent marriage statute. Because you were married before the spouse ever got his
paper. The presumption of fraud is not there. D has to wait for 5 yrs to get citizenship cos
the divorce doesnt not affect its status.
- When got married no status here.
7. 216(c)(4)(B)
8. Under 216(b)(1) His permanent resident status will be terminated.

G we are guessing is over 21

G is inadmissible cos the marriage is a sham. when it ended in divorce he
would be removable. we may apply discretionary... we may claim hardship
here.
G entered into his marriage with H fraudulently because at the time they entered into
the marriage they did not intend to establish a life together. Thus they entered into a
Bilateral sham marriage arrangement because it seems like G and H married solely
to facilitate immigration. On the other hand the facts doesn't tell us distinctively that
H was aware that the marriage was not to last forever. If this is the case, then their
marriage would be a sham marriage with a unilateral arrangement where the
beneficiary spouse deceives petitioner as to beneficiary's feeling and intentions.
Prior or current marriage fraud can be grounds for inadmissibility under
INA 212 (a)(6)(C) or grounds for deportability under INA 237(a)(1)(A,G).
IMFA makes it a criminal offense.

G, has a condition residency by virtue of marriage to H who is a USC, that is less

than two years old, resulting permanent residence is subject to conditions
subsequent. If, during first 2 years of permanent residence, it is discovered that
marriage was fraudulent or had been annulled or terminated or that a fee was given
for the filing of the petition, then AG must terminate permanent resident status.

Affirmative duty to jointly petition the INS for removal of the condition and to appear
at an INS interview re: petition. Petition must be filed during 90 day period
immediately preceding the 2nd anniversary of persons admission for permanent
residence. If not filed timely, or if without good cause either spouse fails to appear at
interview, permanent residence is terminate.

If G is unable to meet requirements for removing conditions subsequent may ask AG

to waive such requirements. But G would need Extreme Hardship. He would need to
show (1) he entered into marriage in good faith; (2) terminated marriage for good
cause; (3) was not at fault in failing to meet the usual requirements. e.t.c

9. 216 (c)(4)(C) Extreme cruelty

10. 204(a)(2) It should be denied.
11. 204(a)(2) It should be denied.
204 (g) (previously h) added under IMFA 5
- A visa petition may not be approved to grant an alien immediate relative status or
preference status by a reason of a marriage which was entered into during removal
proceedings until the alien has resided outside the United States for a 2-year period
beginning after the date of the marriage.
- Can be avoided by proving genuineness of marriage.(added as amendment in 1990)
Other Family Members
.
.
.

Parents, children of U.S. citizens, child accompanying or following to join a preference

immigrant, sons and daughters, and brothers and sisters receive preference. See INA
201(b)(2)(A)(i), 203(d), 203(a).
United States law accords no preference to relatives other than the family members
mentioned above.
A child must be unmarried and under 21. See INA 101(b)(1).
Since 2014, both the State Department and USCIS have recognized nongenetic parent-child relationships when the birth mother is also the mother
legally recognized by the country of the birth. Applies to immigration as well
as to the transmission of U.S. citizenship by descent.
Matter of Mourillon
Facts: Beneficiary is the half-brother of petitioner and denied preference because petitioner
is illegitimate. Petitioner contests ruling based upon the law of legitimacy in the Netherlands.
Issue: (1) Can an illegitimate child claim a sibling relationship with the offspring of his or her
parent and a stepparent for purposes of the INA? And (2) If a family relationship is
maintained after the death or separation of the relevant parents, are stepsiblings classifiable
for the purposes of the INA?
Analysis:
Court found that Netherlands Code doesnt support petitioners argument.
INA 101(b)(1)(B) defines the term child as an unmarried person under the age of 21
years who is a stepchild, whether or not born out of wedlock, provided the child had not
reached the age of eighteen years at the time the marriage creating the status of stepchild
occurred.
To qualify as step-siblings either:
1 Marriage which created the relationship must continue to exist or
2 Where the parties to marriage have legally separated or the marriage has
been terminated by death or divorce a family relationship must continue to
exist between the stepsiblings.
Court finds that both qualifications met by petitioner and beneficiary.
Rule of Law: (1) Unless an illegitimate child is legitimated by the common parent, the child
cannot claim a sibling relationship with other children of the common parent by virtue of
their birth. (2) If a family relationship is maintained after the death or separation of the
parents creating a step-relationship, stepsiblings are classifiable as siblings for purposes of
the INA.
2. Family Unification Policy
a. Criticism of family unification policy as causing chain migration.
Legitimate child under 101(b)(1)(C)

(1) The term "child" means an unmarried person under twenty-one years of age and
includes a child legitimated under the law of the child's residence or domicile, or under the
law of the father's residence or domicile, whether in the United States or elsewhere, and,
except as otherwise provided in sections 320, and 321 of title III, a child adopted in the
United States, if such legitimation or adoption takes place before the child reaches the age
of 16 years and the child is in the legal custody of the legitimating or adopting parent or
parents at the time of such legitimation or adoption.
(2) The terms "parent", "father", and "mother" include in the case of a posthumous child a
deceased parent, father, and mother.
o To be someones son or daughter, a noncitizen must at one time have been that
persons child; vice-versa.
o Special Immigrant status on a noncitizen juvenile who has been declared
dependent on a juvenile court located in the United States and has been committed
to a long-term foster care because of abuse, neglect, or abandonment.
Problems 12 - 15
Problem 12: No, as B had to be under 18 years at the time the step relationship was
established.
A can immigrate.

Yes, they can immigrate.

If C was a USC A would have been an immediate relative (spouse, child and parent of
a USC). This would have been good because there is no quota. However, that is not
the case because C is an LPR which means that there is a quota and a preference
(2nd preference to be precise).
The next thing is to look at the chart because that would tell you the waiting time
period. A as 2A (which is the category for the unmarried sons and daughters of LPRs)
would have a 5 year waiting period. By that time B will time out because she would
be over 21.
Also, B would not be a Stepchild because she was 18 at the time of the marriage.
If you look at 203(d), B would also not qualify as a n accompanying child. The
question then is what else can A do?
Look at how far C has to become a USC because he could file for A and she could
come in quick, since she would become immediate relative. Then when A becomes
an LPR she could petition for B who then becomes 2nd preference, 2A.
However, if she waits for her mother to become USC she then falls into 2nd
preference because she would be over 21 and would probably be unmarried.

Problem 13: Cannot come through biological father as the relationship was never
legitimatized, father never officially adopted or had legal custody. Can come through G as
the step relationship was created before E turned 18. E is still under 21 years of age, and is
unmarried so immigration process can be started.
Problem 14: Under 101(b)(1)(C) there was a step-parent and child relationship created as
petitioner was over 18 years of age, however an active relationship has to be established,
which is clearly missing. (Matter of Fong)
- as the natural father he has to establish a bona fide relationship and have her file for him
as immediate relative.
Problem 15: (Matter of Gur) Q can immigrate as:
1. In order to support a claimed brother or sister relationship under section 203(a)(5) of

the immigration and nationality act, the petitioner must establish that both he and the
beneficiary once qualified as children of a common parent within the meaning of
sections 101(b)(1) and (2) of the Act.
2. It doesnt matter if the petitioner was over 21 years of age, as the beneficiary was under
21 and at that time the stepfather became the common parent, hence, step sibling
relationship was created.
Part II
313-331, 347-351
Statutory Supplement, INA''203(b),212(a)(5),216A, 203(c).
Skim Forms ETA 750, I-140
EMPLOYMENT-RELATED IMMIGRATION
1. The First Three Preferences: Superstars, Stars and Others
a. General Eligibility Requirements
(1) Superstars: aliens with (1)extraordinary ability (defined as a level of expertise
indicating that the individual is one of that small percentage who have risen to the very top
of the field of endeavor) in the sciences, arts, education, business or athletics which has
been demonstrated by sustained national or international acclaim; (2) Professors and
researchers who are outstanding; and (3) certain multinational executives and managers,
who need not demonstrate any particular level of fame or success. INA 203(b)(1).
(2) Stars: members of the professions holding advanced degrees or their equivalent and
aliens with exceptional ability in the sciences, arts or business. INA 203(b)(2).

This preference differs from (i) in the use of the word exceptional versus extraordinary
and that (ii) generally requires the alien to obtain a job offer from an American employer
(INA 203(b)(2)(A)) and a documents called labor certification from the Department of
Labor (INA 212(a)(5)(A,C)).

The INS has the discretion to waive the job offer requirement in the national interest. INA
203(b)(2)(B).
(3) Others (three subprongs):

INA 203(b)(3)
.

(a) Aliens capable of performing certain skilled labor for which qualified U.S. workers are
not available;

(b) Aliens who have baccalaureate degrees and are members of the professions; and

(c) other workers who are capable of performing unskilled labor for which qualified U.S.
workers are not available (limited to 10,000 visas in a fiscal year).

Labor certification is required. INA 203(b)(3)(C), 212(a)(5)(C).

Unlike the second preference there is no provision for national interest waivers.Labor
Certification & Its Procedure

(1) Check two schedules published by the Labor Department (A and B).

(2) Schedule A (20 C.F.R. 656.10 (1996)): lists occupations Labor Department has precertified as meeting the substantive statutory requirements for labor certification. Under
Schedule A the alien or employer bypasses the Labor Department entirely and files the visa
petition with the INS, which decides whether the aliens job really does fall within one of the
Schedule A occupations.

(3) Schedule B (20 C.F.R. 656.11 (1996)): occupations where the Labor Department has
made a blanket determination that certain occupations ordinarily will not meet the statutory
criteria for labor certification. When the aliens occupation is on the list the applicant must
apply for a waiver and make certain showings beyond those usually required.

Application submitted to local office of state employment service.

For approval employer must document unsuccessful attempts to recruit American workers at
prevailing wages.

Employer must notify its own employees bargaining representative of the filing.

If certifying officer (CO) finds all requirements met, then issues labor certificate.

If CO doesnt find all requirements met, then must submit discretionary evidence within 35
days of notice or a written argument to cure the defect.
Matter of Marion Graham (Displacing American Workers)
Facts: sought to hire an alien to fill a position as a live-in housekeeper.

Issue: If an employment position offered to an alien has restrictive job requirements (such
as living on premises, as here), must the employer show that the requirements are a
business necessity in order to overcome the presumption that jobs with overly restrictive
requirements cannot be offered to aliens?
Analysis: Relevant business in this situation is that of running a household or managing
ones personal affairs.
Pertinent factors in determining whether live-on-the-premises is essential: employers
occupation or commercial activities outside the home, circumstances of the household itself,
and any other extenuating circumstances.
Evidence needed to prove: a requisite degree of specificity for a written assertion generally
should enable the CO to determine whether there are cost-effective alternatives to a live-in
requirement and whether the needs of the household for a live-in worker are genuine.
Rule of Law: If an employment position offered to an alien has restrictive job requirements,
the employer must show that the requirements are a business necessity in order to
overcome the presumption that jobs with overly restrictive requirements cannot be offered
to aliens.