As an immigration and criminal defense lawyer I hear a lot about "criminal aliens." Legally, the term usually refers to people who happen to be aliens (whose status may be legal or illegal) who commit crimes.

But more popularly, it seems a criminal alien is one who is here illegally, whether they've committed a "crime" or not. That is, they are criminals because they're here in violation of the law.

It becomes a slippery slope because once you label any out-of-status alien "criminal" it becomes very easy - at least in the court of public opinion - to justify all sorts of treatment that would make a constitutional scholar wince.  Although it may be oversimplistic, some of the provisions in our law seem to treat an overstay the same as a burglar.  And sometimes I wonder whether some of the more draconian provisions of our law stem from legislators who found it easy to call all status violators "criminal

But then it is claimed that since immigration "crimes" (i.e., violations) are regulatory offenses, the constitutional protections that exist for criminal defendants do not apply.

Should the system be able to have it both ways?

The H-1B visa status has perhaps one of the largest bodies of law regulating it than any other nonimmigrant status.  The H-1B is the temporary professional work visa.  It's good for 3 years, and renewable for another 3 (and often beyond that, under certain circumstances.)  In practice it often serves as the bridge between a foreign student's visa and an employment-based green card.

Among other things, one requirement for an H-1B is that the job must be a "specialty occupation." It is not necessarily difficult to define a "specialty occupation." Rather, the lawyering comes from persuading USCIS that a particular job fits into that category.

In a recent case, HMALF attorneys were confronted with a delicate problem.  At issue was a job in the optometry field.  The candidate was to perform many of the same duties as a licensed optometrist (although the position did not require a license) but significantly more responsibility than that of an optometric technician.  Simply put, it wasn't just fitting contact lenses, but it wasn't quite prescribing them, either.

"Specialty occupation" is defined in great detail at 8 CFR §214.2(h)(4)(ii).  The lynchpin of its requirements, however, is that a bachelor's degree is required.

And so here was the problem.  How to persuade USCIS that this job was more than a technician (which requires no bachelor's) but was not the "practice of optometry" which would require a license?

In our response to USCIS, we began by a stating the law on what a specialty occupation is.  We also provided the definition of the practice of optometry.  We then applied the factors in 8 CFR §214.2(h)(4)(iii)(A) and demonstrated that the job's requirements met each of the 4 required tests.  We then showed how each of these tasks failed to meet the definition of the practice of optometry, and therefore could not require a license.

That probably would have been enough, but legal arguments should be airtight.  So we also drew a parallel to a "medical technologist" occupation.  This raised an interesting issue: some occupations may not be considered specialty occupations at one point in time, but later, because the field itself changes, that same position may become a specialty occupation.  This is exactly what happened to medical technologists.  Matter of Panganiban, 13 I & N Dec. 581 (Comm. 1970).  Thus, we forced USCIS to consider the possibility that this position was new and would have to be fully analyzed in light of the legal requirements, instead of just drawing a parallel to older cases.

But there was still another objection USCIS could make: questioning the employer's requirements.  This job looked much like a paraoptometric.  Paraoptometrics also lie between technician and optometrist, but  you don't have to have a bachelor's degree to be one. Hence, it  would not be a specialty occupation . If USCIS relied on government databases, it could have found that we had failed to prove that the job was a specialty occupation, and then denied the H-1B.

So we also included legal authority that the "Service must give deference to the employer's statements and description of a position, and must consider fully the employer’s evidence and should not rely simply on “standardized government classification systems.” Unico American Corp. v. Watson, Case No. CV 89-6958 (C.D. Cal. Mar. 19, 1991).  In other words, listen to the employer, not a government database.

USCIS approved the H-1B petition a few days later.

Laws are shaped by culture. What may be legal or lawful in one country is not in another. In a diverse country like the United States, the courts frequently have to deal with foreign laws and the resulting legal “tension” that arises.

Case in point. In international law there is a principle called comity. Comity, basically, is “legal courtesy.” In other words, a court in one country will not do anything to demean or denigrate the laws of another country, and will respect them and apply them as far as possible. It would be great if there was a binding principle like this for politicians, too – but that's a separate entry.  In 1895, the Supreme Court found that “[a] judgment affecting the status of persons, such as a decree confirming or dissolving a marriage, is recognized as valid in every country, unless contrary to the policy of its own law.” Hilton v. Guyot, 159 U.S. 113 (1895)

So let's say two people get legally married in their home country and then come here to the United States. The marriage isn't “registered” here. Many people mistakenly believe that they are not married under US law. But this is where comity will apply. Unless there is a strong reason not to recognize the marriage (say it is a child marriage, or it was forced, or was with a relative closer than a first cousin, or is polygamous) then ordinarily it will be recognized as a valid marriage in the United States. This means if the couple wants to get divorced, they will have to obtain a divorce from an American court, notwithstanding what they may do in their home country or in their own religious tradition.

But just because the marriage is recognized, it is far from clear as to what extent: many marriage contracts have clauses for dowry, bride price, deferred bride price, property clauses, etc. and many disgruntled spouses try to enforce (or deny) such provisions when they obtain a divorce in the US. It's rarely clear, without a full-fledged legal analysis, whether an American court will enforce these provisions or refuse to do so.

If marriage laws vary, then divorce laws are literally all over the map. Even among our united States, divorce laws are discordant. And if you're talking about a divorce from overseas, it becomes even more murky.

Because bigamy is a crime that can have very unpleasant consequences – especially for noncitizens, couples in the US whose current or previous marriages or divorces were outside the United States would do well to consult with an attorney to determine which documents would be valid, and if there is any “overlap.” (Overlap being an innocuous-sounding term for being married to more than one person at the same time.) And just because a divorce is valid in one country does not mean it will be valid here!” Comity will not save in every case.

As the Court of Special Appeals of Maryland has found, “[t]he principle of comity, however, has several important exceptions and qualifications. A decree of divorce will not be recognized by comity where it was obtained by a procedure which denies due process of law in the real sense of the term, or was obtained by fraud, or where the divorce offends the public policy of the state in which recognition is sought . . .” Wolff v. Wolff, 40 Md. App. 168, 389 (1978)

Bottom line: before you tell the government you're married, make sure you really are. Before you tell the government you were married, make sure you still aren't. And before you think your foreign marriage contract lets you keep your million dollar real estate empire, be sure to run it by a competent divorce attorney, who may tell you, “May be cheaper to keep her.”

Being an immigration lawyer has taught me at least one important lesson: it is far easier to prevent a mess than it is to clean up one.  If you qualify, there is one relatively simple thing you can do that will help prevent many serious problems, and also provide multiple benefits to you.

It's filing for US citizenship.

Popular wisdom says that the only difference between a green card holder and a citizen is the right to vote. It's a lot more than that.

As lawyers, we know the immigration system, its pitfalls and its perils. Citizenship fees are an insurance premium for a fantastic policy that keeps you from having to deal with that system. Once you're a citizen, there are no more worries about time spent outside the US, or filing green card renewals. And the policy comes with other perks, too. You get the right to petition for loved ones – spouses, children, parents, siblings. You get the right to vote, giving you a voice in your community. You qualify for many more forms of government aid. Many government jobs require US citizenship – a major benefit for members of our Washington, DC metropolitan community.  Nowadays, citizenship applications (at least here in the DC area) are being processed in 2 - 3 months.  It's a good time to file.

But there is another benefit that is frequently overlooked, largely because most people are  not aware of this benefit until it's too late. If you find yourself charged with a crime, being a citizen means you cannot be placed into removal (deportation) proceedings. The most common thing I hear in response to this is, “I am not a criminal, I have nothing to hide, and this doesn't apply to me.” Unfortunately, it's not that simple. Many people commit technically criminal acts, which may not even be serious crimes, but for which the immigration consequences are disastrous. Laws are treated differently in immigration. As a federal judge wrote just last week, "While under our law numerous felonies are deemed not...[to cause deportation]...all acts of petty theft automatically qualify for that label and the drastic legal consequences that may follow. As some in today’s society might say, and with good reason, “Go figure.”" Ocegueda-Nunez v. Holder (9th Cir. 2/10/2010).  I have seen the dejected look on many clients' faces over the years, all of whom were good people who found themselves at the wrong place at the wrong time.

It only matters when it matters, but when it does, it's a big deal. You may never be charged with a crime. But everything you have worked for rides on your ability to remain in the United States. Protect your life's work and your family by filing for citizenship. With all the other benefits it comes with, you have very little to lose.

1. The US immigration system is based on precisely defined categories of immigration benefits. Whether you will get an immigration benefit depends on how well you fit in a category.
   
2. The US immigration system is not perfect. Mistakes will occur. If your case proceeds smoothly, consider yourself lucky.
   
3. Aliens in removal proceedings have very few rights. People who are accused of serious crimes often have more rights than an alien in removal proceedings.
   
4. The US immigration system works slowly. To successfully make it work for you requires 1) paying close attention to the law, and 2) a great deal of patience.
   
5. An immigration benefit is a privilege, not a right. This may or may not be morally right, but it is the reality.
   
6. Just because you know someone for whom the process of obtaining an immigration benefit was easy does not necessarily mean it will be easy for you.
   
7. Just because you know someone for whom the process of obtaining an immigration benefit was hard does not necessarily mean it will be hard for you.
   
8. Dealing with the US immigration system is not an exact science. You should not have high expectations that you will receive your immigration benefit in any set period of time.
   
9. The stakes are high with immigration. Get an attorney. If you can’t afford an attorney, at least consult with one to make sure you are not making a mistake. If you can’t do that, you probably qualify for legal aid sponsored by a number of local and national charitable and immigrants’ rights organizations.
   
10. Civic participation on immigration issues is the ONLY way we will see a positive change in the immigration system. Make your voice heard!
    
    

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