A person may acquire US citizenship either at birth or through naturalization. A person born in the US and subject to its jurisdiction acquires US citizenship at birth but, under certain circumstances, a person born outside the US may also acquire US citizenship at birth. Under INA 309(c), a child born abroad to a US…

Under 8 CFR 205.1(a)(3)(i)(C), an approved Form I-130 petition for an alien relative is automatically revoked upon the death of the petitioner if the beneficiary has not obtained lawful permanent residence prior to the petitioner’s death. In Matter of Varela, 13 I&N Dec. 453 (BIA 1970), the Board of Immigration Appeals (BIA) held that an…

In applications for immigration benefits or relief, the focus is often on the qualifications or eligibility of the alien for such benefits or relief. In this article, I would like to emphasize some important requirements on a Form I-130 petitioner in family petitions. An I-130 petition is the preliminary step in a process that could…

MOST people might welcome a change in law that provides relief or benefits which were previously unavailable. However, a new law which deprives individuals of benefits that they could have applied for under an old law or a new law which imposes new disqualifications could have disastrous consequences. In this article, we will examine the…

We have recently discussed how criminal convictions could lead to removal or inadmissibility. However, under INA 212(a)(2)(A)(i), an alien is also inadmissible if he admits committing acts which constitute the essential elements of a crime involving moral turpitude (CIMT) or a controlled substance violation. Thus, to be inadmissible due to a CIMT or controlled substance…

A criminal conviction for a firearm offense may affect an alien’s immigration status or his eligibility for relief. The immigration consequences of a firearm conviction would depend on the status of the alien. If an alien is applying for a visa or for lawful permanent resident (LPR) status, a firearm conviction would not necessarily disqualify…

For immigration purposes, INA 101(a)(48)(A) defines a conviction as: (1) a formal adjudication of guilt entered by a court; or, (2) if adjudication of guilt is withheld: (a) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or has admitted sufficient facts to warrant a finding…

Convictions for certain criminal offenses could cause denial of a visa or lead to removal. Under INA 101(a)(48)(A), the term conviction, with respect to an alien, means: (1) a formal adjudication of guilt entered by a court; or, (2) if adjudication of guilt is withheld: (a) a judge or jury has found the alien guilty…

Under INA 237(a)(1)(E)(i), a lawful permanent resident (LPR) who has knowingly encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the US in violation of law is deportable. If one knowingly drives an undocumented alien across the border, that would clearly constitute assisting in alien smuggling. But what if…

Under INA 101(a)(15)(L), an alien who has worked continuously for one year for a firm or subsidiary abroad within the preceding 3 years and who now seeks to temporarily enter the US to work for the same firm or subsidiary, may qualify for L-1 nonimmigrant status. There are two types of L-1 intra-company transferees. Corporate…

Under INA 101(a)(43)(A), sexual abuse of a minor is an aggravated felony. A conviction for an offense classified as an aggravated felony would disqualify an alien from most immigration benefits or relief. A common problem is how to determine whether a state conviction constitutes an aggravated felony within the meaning of INA 101(a)(43)(A). Recently, in…

WHEN an Immigration Judge (IJ) issues a removal order, the order becomes final when the affected alien does not file an appeal with the Board of Immigration Appeals (BIA). If the alien files an appeal or petition for review, the order becomes final when the appeal or petition is denied. Sometimes, a final removal order…

WHAT crimes involve moral turpitude is not an easy question to answer. Some attempts to answer this question have resulted in conflicting interpretations. In Hernandez-Gonzalez v. Holder, No. 11-70359, slip op. (9th Cir. February 13, 2015), the issue before the Ninth Circuit Court of Appeals was whether it was a crime involving moral turpitude (CIMT)…

AN inadmissible alien cannot receive a visa and he cannot be admitted into the US. An alien may be inadmissible due to certain conduct, conditions, criminal convictions or events. Nevertheless, an inadmissible alien may receive a visa or be admitted into the US if the alien is granted a waiver of inadmissibility. Not all grounds…

Under INA 216(a)(1), an alien who: (1) applies for lawful permanent residence (LPR) based on marriage to a US citizen (USC) or LPR spouse; and (2) such marriage was entered less than 2 years at the time LPR status is granted, such alien acquires LPR status on a conditional basis. There are two ways to…

ON November 20, 2014, President Obama announced a series of executive actions that would benefit some undocumented aliens and improve some business-related aspects of the immigration process. Due to the scope of these executive actions, we shall first focus on actions that benefit undocumented aliens, which are expected to be the bulk of the beneficiaries…

MORE than a year ago, I discussed in an article the immigration consequences of using a false social security number. In Beltran-Tirado v. INS, 213 F.3d 1179 (9th Cir. 2000), the Ninth Circuit Court of Appeals held that convictions under 18 USC 1546(b), for false attestation on an employment verification form, and 42 USC 408(a)(7)(B),…

A conviction for an offense classified as an aggravated felony would disqualify an alien from most immigration benefits or relief. Due to these immigration consequences, anyone who’s facing a criminal complaint and who must weigh the merits of a plea bargain offer should be familiar with aggravated felonies, especially the more common ones in order…

MOST people who follow immigration law are familiar with adjustment of status, which is the process that allows an alien who was inspected and admitted or paroled into the US to apply for lawful permanent residence (LPR) while in the US. Adjustment applications are often filed under INA 245(a) which requires that an alien be…

THE Board of Immigration Appeals (BIA) recently discussed the immigration implications of certain gang-related offenses. In Matter of Hernandez, 26 I&N Dec. 397 (BIA 2014), the respondent was charged with committing vandalism that caused over $400 in damages in violation of California Penal Code (PC) section 594(a) with a gang enhancement allegation pursuant to PC…

ALIENS who wish to visit the US temporarily for business may be issued B-1 business visitor visas. Under 22 CFR 41.31(b)(1), the term “business” refers to conventions, conferences, consultations and other legitimate activities of a commercial or professional nature but it does not include local employment or labor for hire. The problem with B-1 visas is…

Adopted children may obtain immigration benefits in three different ways. First, under INA 101(b)(1)(E)(i), a US citizen (USC) or lawful permanent resident (LPR) may file an immigrant petition for a child, who was adopted while under the age of sixteen years if the child had been in the legal custody of and had resided with…

ALIENS who are visiting the US temporarily for pleasure may be issued B-2 visas. Under 22 CFR 41.31(b)(2), the term “pleasure” refers to legitimate activities of a recreational character, such as tourism, amusement, visits with friends or relatives, rest, medical treatment, and activities of a fraternal, social, or service nature. A common purpose of B-2 visitors is…

ON July 11, 2014, USCIS issued a policy memorandum on the adjudication of H-1B petitions for nursing occupations. Most registered nurse positions do not qualify for H-1B classification but the memorandum recognizes that, due to changes in the nursing industry, some nurse positions may now qualify for H-1B classification. Under INA 101(a)(15)(H)(i)(b), an H-1B nonimmigrant…

The Child Status Protection Act (CSPA) allows an applicant for immigration benefit under a preference category, either as a direct or a derivative beneficiary, to retain his classification as a “child” even if he has reached the age of 21 by means of the following formula. First, determine the child’s age on the date his…

About a year ago, we discussed inadmissibility under INA 212(a)(6)(C)(i), which bars an alien from receiving a visa or admission into the U.S. if this alien has previously obtained or attempted to obtain a visa, other documentation, admission or other benefit under the Immigration and Nationality Act (INA), by means of fraud or by willfully…

INA 237(a)(1)(H), commonly known as the fraud waiver, provides relief to lawful permanent residents (LPR) and battered spouse self-petitioners in removal proceedings. To understand this waiver, we must first examine some related provisions. Under INA 212(a)(6)(C)(i), an alien is inadmissible if he has previously obtained or attempted to obtain a visa, other documentation, admission or…

An applicant for admission or adjustment of status must generally have a qualified sponsor who executes a Form I-864 Affidavit of Support. Otherwise, such alien would be inadmissible under INA 212(a)(4) as one likely to become a public charge. Form I-864 is a contract that binds the sponsor to support the sponsored alien at an…

UNDER INA 101(a)(15)(F)(i), an alien student may temporarily enter the US to pursue a course of study at an established and approved college, university, seminary, conservatory, academic high school, elementary school, other academic institution, or language training program. 22 CFR 41.61(b)(1) authorizes the issuance of an F-1 nonimmigrant visa to an alien student if the…

Tattoos have evolved into popular forms of self-expression especially among younger people. However, tattoos sometimes indicate gang affiliations. As law enforcement officials began to understand the relationship of certain tattoos to criminal gangs, consular officers started to pay attention to tattoos for clues to gang affiliations among applicants for visas. Thus, in recent years, there…