Significance of Prerequisites Within Various INA Contexts                         By Joseph P. Whalen (April 16, 2012)Intr...
Associated concepts: condition precedent, jurisdictional prerequisite1          Something that is necessary to an end or t...
Filing PrerequisitesAn immigrant to the United States may seek citizenship though naturalization byfiling the USCIS Form N...
by a CBP Officer at the port-of-entry. To illustrate this, the “L” non-immigrantclassification requires that there is a pr...
seems to be necessary to file the N-470 under § 317 when the qualified householdmembers must be covered as well to protect...
In another context, visa petitions may be revoked. Under INA § 205 [8 U.S.C. §1155] “The Secretary of Homeland Security ma...
removal of the alien from the United States, including removal proceedings      under this Act and extradition proceedings...
Upcoming SlideShare
Loading in...5
×

Significance of Prerequisites within various INA Contexts

493

Published on

Significance of Prerequisites within various INA Contexts

Published in: News & Politics, Business, Travel
0 Comments
0 Likes
Statistics
Notes
  • Be the first to comment

  • Be the first to like this

No Downloads
Views
Total Views
493
On Slideshare
0
From Embeds
0
Number of Embeds
2
Actions
Shares
0
Downloads
4
Comments
0
Likes
0
Embeds 0
No embeds

No notes for slide

Significance of Prerequisites within various INA Contexts

  1. 1. Significance of Prerequisites Within Various INA Contexts By Joseph P. Whalen (April 16, 2012)IntroductionBenefits and/or relief under the Immigration and Nationality Act (INA) may berequested from one of the various Department of Homeland Security (DHS)Agencies [generally USCIS, CBP, or ICE], the Department of Justice inImmigration or other Proceedings (Removal Hearings including appeals; orOCAHO’s fine, employment, or compliance cases), the Department of State (DOS)for visas and passports etc, or the Department of Labor (DOL) for Labor ConditionApplications, Permanent Labor Certifications, or Prevailing Wage Determinations,etc. Those various determinations made by the various agencies get adjudicatedpursuant to requests in various formats and contexts, and through various methodsand mechanisms. As a prime example, benefits available by petitions orapplications to U.S. Citizenship and Immigration Services [USCIS] will bediscussed briefly herein.Certain eligibility requirement demand establishing specific facts and informationrelating to relationships and qualifications. In order to attain classification or anactual tangible benefit certain specifically prescribed required facts must beestablished by the evidence submitted in support of such request. There aredifferent points within these adjudication contexts at which certain fact must beestablished. Depending on the specific benefit sought, the timelines vary.Sometimes a fact must exist prior to filing a request, sometimes a fact must beproven at the end of the process or “at time of adjudication”, and in certaincontexts subsequent decisions are affected by earlier decisions and interveningevents, i.e., removal of conditions. Here are some terms and concepts one needs tounderstand for these purposes. Prerequisite: noun condition, demand, essential desideratum, exigency, fundamental, groundwork, indispensable item, necessary condition, necessary item, necessity, need, needed item, precondition, preliminary condition, pressing need, prior condition, proviso, requirement, requisite, specification, stipulation, vital part Page 1 of 7
  2. 2. Associated concepts: condition precedent, jurisdictional prerequisite1 Something that is necessary to an end or to the carrying out of a function 2 Condition Precedent: A contractual condition that suspends the coming into effect of a contract unless or until a certain event takes place. Also in reference to events which must occur before being eligible for other legal rights such as in Canada, an immigrant has to pass through the stage of permanent resident before applying for citizenship. Many residential real estate contracts have a condition precedent which states that the contract is not binding until and unless the property is subjected to a professional inspection, the results of which are satisfactory to the purchaser. Compare with condition subsequent. 3 Condition Subsequent: A condition in a contract or will that causes the contract to become invalid if a certain event occurs. .... The happening of a condition subsequent may invalidate a contract which is, until that moment, fully valid and binding. In the case of a condition precedent, no binding contract exists until the condition occurs.4As mentioned above, “context” is key to understanding exactly “what” must beproven and “when” it must be proven. Next, some specific contexts will beexamined through specific common examples. Naturalization, immigrant andnonimmigrant visa petitions, the application to preserve residence fornaturalization (extended absence benefits), application for admission to the U.S.(or change of nonimmigrant status), and petitions for the removal of conditionswill be used to illustrate certain points and concepts. These are not exhaustive ofall potential contexts or conditions that may be encountered under the INA.1 http://legal-dictionary.thefreedictionary.com/prerequisite2 http://www.merriam-webster.com/dictionary/prerequisite3 http://www.duhaime.org/LegalDictionary/C/ConditionPrecedent.aspx4 http://www.duhaime.org/LegalDictionary/C/Conditionsubsequent.aspx Page 2 of 7
  3. 3. Filing PrerequisitesAn immigrant to the United States may seek citizenship though naturalization byfiling the USCIS Form N-400. Certain conditions precedent apply to thenaturalization process. This is most easily seen in the basic filing prerequisites asfollows. In order to merely apply for consideration, in general, the applicant musthave been a “lawful permanent resident” (LPR) for a minimum period of time,been a bona fide resident of the U.S. for a prescribed minimum period, who wasphysically present inside the U.S. for at least half of the statutory period, who wasalso a resident of the State or USCIS Office jurisdiction for a minimum period, andbe a person of good moral character (GMC) as prescribed by law. Each and everyone of these prerequisite facts may be altered by various specific sections of lawthat treats particular classes of persons eligible for naturalization somewhatdifferently. Some of the basic prerequisites may be shortened or eliminated or evenenhanced or made amenable to conditions subsequent. A “national” (AmericanSamoan) is afforded certain considerations under INA § 325. U.S. militarymembers have special consideration under INA §§328 and 329 and their spousesand children have special considerations under INA § 319(e) and § 322(d). Seamen(such as merchant marines and cruise ship crew) have special consideration underINA § 330 and the list goes on.An LPR or USC may file an immigrant petition for certain family members onUSCIS Form I-130. In order to do so, the petitioner must qualify and theirrelationship must meet the definitions as prescribed under the INA at the “time offiling”. An employer may file on behalf of an immigrant employee or prospectiveemployee who is fully qualified as prescribed under the INA and 8 CFR “at thetime of filing” either the Labor Certification Application (PERM electronic filing),or the Form I-140 with USCIS, as applicable.Application for Admission PrerequisitesWhile an I-129 petition for a nonimmigrant worker has certain prerequisites for thepetitioning employer as well as the alien worker beneficiary, as with any “visapetition” the mere classification is but a preliminary step. If abroad, the alien willhave to demonstrate full eligibility for issuance of the visa by DOS and admission Page 3 of 7
  4. 4. by a CBP Officer at the port-of-entry. To illustrate this, the “L” non-immigrantclassification requires that there is a pre-existing employer-employee relationshipat time of “application for admission”. This allows, for example, a “blanket Lpetition” to be filed by a qualified employer on behalf of unnamed members of itsworkforce. The actual alien employee will apply for either a nonimmigrant visawith DOS abroad or change or extension of status with USCIS domestically. Theemployer must qualify when filing the blanket but the unnamed alien does not.Instead, the alien will have to qualify at time of filing the subsequent applicationwith DOS and upon entry when presenting themselves for inspection by CBP orwhen filing for change or extension of status with USCIS.Departure PrerequisiteThe USCIS Form N-470 is used to obtain consideration under INA §§ 316(b) and317 with regard to how extended absences will be treated during subsequentnaturalization application proceedings. Under INA § 316(b) there is a prerequisiteto “departing abroad for the qualified purpose”. Unlike a filing prerequisite, this isa factual determination that could be sustained or refuted after filing the N-470 orindeed, after it has been approved. The N-470 will generally serve to put USCISon notice of an intent to take advantage of the extended absence benefit laterduring the actual naturalization proceeding. During that subsequent separateproceeding, it will be incumbent upon the applicant to substantiate the purpose forwhich (s)he was tentatively approved actually came to pass. This situation willrequire production of corroborating evidence during the N-400 processing. Thetrue prerequisite to obtaining this benefit is accumulating one uninterrupted year ofcontinuous presence inside the U.S. as an LPR prior to departing abroad for thequalifying employment assignment or any other purpose whatsoever.As for the other main group of individuals who might file an N-470 (under INA §317). Those folks must accumulate the required one year prior to filing their N-400itself. Additional sub-groups have still other variants in order to obtain benefitspertaining to qualified extended absences for specific qualifying purposes. Theminister or religious worker or missionary may fulfill their solid one year before orafter the long absence and is not required to file an N-470 at all. They are onlyrequired to fulfill the solid year as an LPR prior to filing for naturalization. It Page 4 of 7
  5. 5. seems to be necessary to file the N-470 under § 317 when the qualified householdmembers must be covered as well to protect their naturalization eligibility. [Thejury is still out on that point as well as the assertion made above that the solid oneyear is not a filing prerequisite for §316(b) either.]“Back-End” Burden of Proof and Conditions SubsequentAs mentioned above, the naturalization applicant will have to substantiate theirentitlement to utilize the extended absence benefits during that subsequentproceeding through the production of evidence to corroborate their claim inconnection to the benefit of naturalization itself. Just like any of the other groupscited as examples above, anyone claiming some type of special consideration hasto prove it as per the actual statute under which (s)he has applied for naturalizationas a citizen.More Conditions Subsequent: Removal of ConditionsTwo specific USCIS Forms are used in order to request the removal of conditionsfrom LPR status. The alien spouse of less than two-years of an LPR or USC will beadmitted as a conditional resident as will the petitioner’s new stepchildren. At theappointed time, they file the I-751 in order to be allowed to submit evidence tosubstantiate that the marriage was and remains bona fide or to request a waiver ifthe marriage has failed. The EB-5 immigrant entrepreneur/investor is also admittedon a conditional basis. At the appointed time, (s)he must file the I-829 in order tosubmit evidence of the required minimum investment and required job creation.Intervening Events: Loss of Eligibility and Material ChangesWhile earlier determinations may rise to the level of being considered asacknowledgment of “settled facts” for the purpose of invoking collateral estoppelor “issue preclusion”, circumstances can and do change. One can lose eligibilityfor naturalization even after a favorable determination has been made on theapplication based on specific events that occur after that “recommended approval”and taking the Oath of Renunciation and Allegiance. A “Material Change” in factsor circumstances may negate and earlier determination in this and other contexts. Page 5 of 7
  6. 6. In another context, visa petitions may be revoked. Under INA § 205 [8 U.S.C. §1155] “The Secretary of Homeland Security may, at any time, for what he deems tobe good and sufficient cause, revoke the approval of any petition approved by himunder section 204. Such revocation shall be effective as of the date of approval ofany such petition.” This may happen at any time but the mechanisms varydepending on the particulars of the case. If adjustment of status was the meansemployed to obtain LPR status, rescission may be utilized but it has a statute oflimitations.However, when the statute of limitations has expired, alternate mechanisms applyvia INA § 240 Removal Proceedings, or INA § 340 Revocation of Naturalizationor “Denaturalization” Proceedings, or § 349 Relinquishments caused by specifiedactions or the making of a Formal Renunciation.In yet another context, an LPR who travels abroad may be found inadmissible orexcludable while “seeking admission” per INA § 101(a)(13) as follows:(A) The terms "admission" and "admitted" mean, with respect to an alien, thelawful entry of the alien into the United States after inspection and authorization byan immigration officer.(B) An alien who is paroled under section 212(d)(5) or permitted to landtemporarily as an alien crewman shall not be considered to have been admitted.(C) An alien lawfully admitted for permanent residence in the United Statesshall not be regarded as seeking an admission into the United States for purposesof the immigration laws unless the alien- (i) has abandoned or relinquished that status, (ii) has been absent from the United States for a continuous period in excess of 180 days, (iii) has engaged in illegal activity after having departed the United States, (iv) has departed from the United States while under legal process seeking Page 6 of 7
  7. 7. removal of the alien from the United States, including removal proceedings under this Act and extradition proceedings, (v) has committed an offense identified in section 212(a)(2), unless since such offense the alien has been granted relief under section 212(h) or 240A(a), or (vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.ConclusionIt is important to clearly identify the proper context for the benefit (or relief)sought in order to isolate the appropriate issues. If one has identified the wrongissues then they will usually submit evidence that is irrelevant, incompetent, andimmaterial. USCIS (or DOS or DOL or a Court) is not required to do the work forthe applicant or petitioner.If a poorly prepared case lacking support is filed, it can be dismissed or denied for: (1) lack of subject matter jurisdiction, or (2) clear ineligibility, or (3) a failure to state a claim for which relief can be granted, or (4) as incompetent, or (5) a failure to submit required evidence, or (6) failure to prove either prima facie or full eligibility.The items listed above, like the rest of the topics discussed in this essay, are notmeant to be exhaustive. These are merely illustrative of a few contexts and issuesthat readily “jump out” at me. I offer these thoughts merely to get you thinkingabout some issue that I find important and relevant to anyone seeking any benefitor any form of relief under the Immigration and Nationality Act. Good luck! Page 7 of 7

×