21.5 Immigration Law Basics

21.5 Immigration Law Basics

[!NOTE] NALS PP Exam Blueprint Focus: Immigration appears in the Part 4 Legal Knowledge list of areas of law. It carries a second, sharper significance for a PP candidate: immigration is the single most notorious unauthorized practice of law field in the United States, which connects it directly to the Part 3 ethics material.

The Agencies

Immigration functions are split across three departments, and knowing which agency does what is the first practical skill.

The governing statute is the Immigration and Nationality Act, codified in Title 8 of the United States Code, with implementing regulations in Title 8 of the Code of Federal Regulations.

Nonimmigrant Versus Immigrant

Common nonimmigrant categories include B-1 and B-2 for business visitors and tourists, F-1 for academic students, H-1B for specialty occupation workers, L-1 for intracompany transferees, O-1 for individuals of extraordinary ability, E-1 and E-2 for treaty traders and investors, TN for certain Canadian and Mexican professionals, J-1 for exchange visitors, K-1 for fiances of citizens, and U and T for certain crime and trafficking victims.

A handful of categories, notably H-1B and L-1, permit dual intent, meaning the holder may pursue permanent residence without undermining the nonimmigrant status.

[!TIP] The visa is not the status. A visa is a travel document issued by a consulate that permits a person to request admission at a port of entry. Status is what the person holds after CBP admits them, and it is recorded on the admission record with an authorized period of stay. A visa can expire while the person remains lawfully in status; conversely, a person can fall out of status while holding an unexpired visa.

Family-Based Immigration

The absence of a numerical limit for immediate relatives is the single most consequential distinction in family immigration, because preference categories can carry waits measured in years or decades.

Employment-Based Immigration

Most EB-2 and EB-3 cases require PERM labor certification from the Department of Labor, in which the employer tests the labor market through prescribed recruitment and attests that no able, willing, qualified, and available United States worker exists for the position and that hiring the foreign worker will not adversely affect wages and working conditions.

Priority Dates and the Visa Bulletin

The priority date is a person's place in line — generally the date the petition was filed, or the date the labor certification was filed in PERM cases. Each month the Department of State publishes a Visa Bulletin showing cutoff dates by category and country of chargeability. A visa is available when the priority date is earlier than the cutoff date, at which point the case is described as current.

Because per-country limits apply, applicants chargeable to high-demand countries can face far longer waits in the same category than applicants from elsewhere. Cutoff dates can also retrogress, moving backward when demand exceeds supply, which is why a paralegal never treats a currently available priority date as permanently available.

Adjustment of Status Versus Consular Processing

A critical trap: departing the United States while an adjustment application is pending, without advance parole, generally abandons the application. A separate and severe trap is the unlawful presence bar — accruing more than 180 days or one year of unlawful presence and then departing triggers a three-year or ten-year bar on return, which can convert a straightforward consular case into a decade-long separation. Waivers exist but require a qualifying relative and a showing of extreme hardship.

Naturalization

General requirements for naturalization:

Derivative and acquired citizenship rules can make a person a citizen already, through a parent, without any application — which is why a competent intake asks about parents' citizenship before assuming a naturalization case.

Removal Proceedings

Removal begins with a Notice to Appear filed with the immigration court, charging the grounds of inadmissibility or deportability. Proceedings run before an immigration judge, with appeal to the Board of Immigration Appeals and then a petition for review in the federal court of appeals.

[!WARNING] There is no right to appointed counsel in immigration proceedings. A respondent may be represented at no expense to the government, which is why access to competent representation is the central practical problem in the field and why fraudulent providers find so much opportunity.

Unauthorized Practice: The Immigration Problem

Only attorneys and accredited representatives of organizations recognized by the Department of Justice may represent clients before USCIS and the immigration courts.

The recurring fraud is the notario público problem. In many Latin American legal systems a notario público is a licensed legal professional with substantial authority. In the United States a notary public is authorized only to witness signatures and administer oaths. Non-lawyers exploiting that mismatch have caused enormous harm, including missed deadlines, meritless filings that trigger removal proceedings, and permanent bars created by bad advice.

Many states have enacted specific immigration consultant statutes with criminal penalties, precisely because this area has produced so much non-lawyer harm.

The Paralegal Workstream

1. Deadline and receipt tracking — receipt and approval notices, requests for evidence with hard response deadlines, biometrics appointments, hearing dates, the asylum one-year deadline.
2. Visa Bulletin monitoring — checking cutoff movement monthly against the case inventory and flagging retrogression.
3. Document assembly — civil documents, certified translations, medical examinations, police certificates, and supporting evidence.
4. Employer support in PERM cases — recruitment documentation, prevailing wage tracking, audit file maintenance.
5. Status calendar — expiration dates for every nonimmigrant client, with extension filings calendared well in advance.