Homeland Law: Immigration Inclusions And Exemptions

The Department of Homeland Security (DHS) plays a significant role in the U.S. immigration system, with its policies and procedures impacting those seeking to enter or remain in the country. DHS's proposed immigration rules aim to enforce self-sufficiency and protect taxpayers by ensuring immigrants can support themselves financially. The Immigration and Nationality Act (INA), contained within Title 8 of the U.S. Code, forms the backbone of immigration law, outlining procedures for admission, visas, and removal. DHS also provides protections for immigrants who are victims of crime, such as the Violence Against Women Act (VAWA), which offers a pathway to legal status for victims of domestic abuse.

Immigration and Customs Enforcement

ICE carries out its duties through more than 400 federal statutes, focusing on smart immigration enforcement, humane detention, preventing terrorism, and combating the illegal movement of people and goods. ICE has two primary and distinct law enforcement components: Homeland Security Investigations (HSI) and Enforcement and Removal Operations (ERO), as well as three supporting divisions.

HSI is the primary investigative arm of the Department of Homeland Security, consisting of over 10,300 employees assigned to over 235 cities in the U.S. and 90 international offices in more than 50 countries. HSI special agents investigate violations of U.S. laws that threaten national security, including human smuggling, weapons and narcotics smuggling, document fraud, human rights violations, transnational gang activity, financial crimes, cybercrime, and child exploitation.

ERO is responsible for enforcing the nation's immigration laws and ensuring the departure of removable immigrants from the United States. ERO officers identify, arrest, and remove immigrants who violate U.S. immigration law, including the deportation and removal of undocumented immigrants. ERO maintains custodial facilities to detain people illegally present in the United States.

ICE also works in partnership with other agencies such as U.S. Customs and Border Protection and U.S. Citizenship and Immigration Services to enforce immigration laws within the country's interior and at the border.

Immigration Options for Victims of Crime

The US Department of Homeland Security (DHS) engages in immigration enforcement actions to prevent unlawful entry into the US and to apprehend and repatriate noncitizens who have violated or failed to comply with US immigration laws. Despite this, US law provides several protections for legal and undocumented immigrants who have been victims of a crime.

Violence Against Women Act (VAWA)

The Violence Against Women Act (VAWA) provides a pathway to lawful immigration status for victims of domestic abuse who would otherwise have to rely on their abusers to file a petition for status. VAWA allows victims of abuse who are close relatives of US citizens and lawful permanent residents to file for status on their own (self-petition), without the abuser's knowledge, consent, or participation. This pathway is available to spouses, children, and parents of abusive US citizens and lawful permanent residents (Green Card holders). These individuals may be eligible for lawful permanent resident status (Green Card), employment authorization, and public benefits. Applicants start the process by filing Form I-360.

To be eligible, noncitizen victims must establish that they:

• Have a qualifying relationship with the US Citizen or Green Card Holder abuser
• Reside or resided with the abuser
• Have good moral character
• Have been a victim of battery or extreme cruelty

U Nonimmigrant Status

U nonimmigrant status (U visa) offers temporary immigration protection for victims of certain qualifying criminal activities in the US who have been, are being, or are likely to be helpful to certifying agencies in the detection, investigation, or prosecution of the qualifying criminal activity. The U visa is valid for four years and can be extended in limited circumstances; recipients are also eligible for employment authorization. U nonimmigrants may be able to adjust their status and become lawful permanent residents if they qualify. Certain family members may also be eligible for U nonimmigrant status.

Victims of the following qualifying criminal activities may be eligible for U nonimmigrant status:

• Abusive Sexual Contact
• Female Genital Mutilation
• Fraud in Foreign Labor Contracting
• Involuntary Servitude
• Obstruction of Justice
• Unlawful Criminal Restraint
• Other Related Crimes, including any attempt, conspiracy, or solicitation to commit any of the above

To petition for U nonimmigrant status, victims must file Form I-918 and submit a certification (Form I-918, Supplement B) signed by a certifying agency official. To be eligible, noncitizen victims must:

• Be a victim of qualifying criminal activity that occurred in the US or violated US law
• Have suffered substantial physical or mental abuse as a result of the qualifying criminal activity
• Possess credible and reliable information about the qualifying criminal activity
• Be, have been, or are likely to be helpful to law enforcement, prosecution, judges, or other certifying officials in the detection, investigation, and prosecution of that qualifying criminal activity
• Be admissible to the US or qualify for a waiver

T Nonimmigrant Status

T nonimmigrant status (T visa) provides temporary immigration protection to victims of a severe form of human trafficking who assist law enforcement agencies in the detection, investigation, or prosecution of this crime. Human trafficking involves the use of force, fraud, or coercion to obtain some type of labor or commercial sex act. T nonimmigrant status is valid for four years and can be extended in limited circumstances; recipients are also eligible for employment authorization. T nonimmigrants may be able to adjust their status and become lawful permanent residents if they qualify. Certain family members may also be eligible for T nonimmigrant status.

To apply for T nonimmigrant status, applicants must file Form I-914 and be physically present in the US due to the trafficking. To be eligible, noncitizen victims must:

• Be a victim of a severe form of human trafficking
• Be physically present in the US due to the trafficking
• Comply with any reasonable requests for assistance from a law enforcement agency or other certifying official in the detection, investigation, or prosecution of the crime (or qualify for an exemption/exception)
• Suffer extreme hardship involving unusual and severe harm if removed from the US
• Be admissible to the US or qualify for a waiver

Immigration and Nationality Act

The Immigration and Nationality Act (INA) was enacted in 1952 and has been amended several times since. It reorganised the structure of immigration law and contains some of the most important provisions of immigration law.

The INA is contained in the United States Code (U.S.C.), a collection of all the laws of the United States. Title 8 of the U.S. Code covers "Aliens and Nationality".

The INA covers a wide range of topics, including:

• Immigration and nationality provisions
• Diplomatic and semi-diplomatic immunities
• Powers and duties of the Secretary, the Under Secretary, the Attorney General, and the Secretary of State
• Employment authorisation for battered spouses of certain nonimmigrants
• Worldwide level of immigration
• Numerical limitations on individual foreign states
• Allocation of immigrant visas
• Procedure for granting immigrant status
• Revocation of approval of petitions
• Annual admission of refugees and admission of emergency situation refugees
• Adjustment of status of refugees
• Admission of nonimmigrants
• Travel control of citizens and aliens
• Conditional permanent resident status for certain alien spouses and children
• Visa waiver programs
• Admission of temporary workers
• Application for visas
• Immediate relative and special immigrant visas
• Inspection by immigration officers
• Apprehension and detention of aliens
• Mandatory detention of suspected terrorists
• Judicial review of orders of removal
• Temporary protected status
• Adjustment of status of nonimmigrant to permanent resident
• Rescission of adjustment of status
• Change of nonimmigrant classification
• Registration of aliens
• Prevention of unauthorised landing of aliens
• Unlawful bringing of aliens into the United States
• Unfair immigration-related employment practices
• Civil penalties for failure to depart
• Reentry of removed aliens
• Aiding or assisting certain aliens to enter
• Jurisdiction of district courts
• Nonimmigrant visa fees
• Powers of immigration officers and employees
• Local jurisdiction over immigrant stations
• Burden of proof upon alien
• Undercover investigation authority
• Nationality and naturalisation
• Nationals and citizens of the United States at birth
• Naturalisation authority and eligibility
• Requirements for naturalisation
• Prohibition upon the naturalisation of persons opposed to government or law
• Citizenship denied to aliens relieved of service in the Armed Forces
• Temporary absence of persons performing religious duties
• Prerequisites to naturalisation
• Children born outside the United States and residing permanently in the country
• Former citizens regaining citizenship
• Resident Philippine citizens
• Naturalisation through service in the Armed Forces
• Posthumous citizenship
• Photographs
• Application for naturalisation
• Investigation of applicants
• Oath of renunciation and allegiance
• Certificate of naturalisation
• Revocation of naturalisation
• Certificates of citizenship or U.S. non-citizen national status
• Documents and copies issued by the Attorney General
• Publication and distribution of citizenship textbooks
• Loss of nationality by native-born or naturalized citizens
• Restrictions on loss of nationality
• Application of treaties
• Denial of rights and privileges as a national
• Cancellation of United States passports and Consular Reports of Birth
• Refugee assistance
• Alien terrorist removal procedures
• Establishment of removal court
• Removal court procedure
• Custody and release pending removal hearing
• Custody and release after removal hearing

The Immigration and Nationality Act of 1965, also known as the Hart-Celler Act, was a significant amendment to the INA. This act abolished the National Origins Formula, which had been the basis of U.S. immigration policy since the 1920s. The 1965 act created a seven-category preference system that gives priority to relatives and children of U.S. citizens, legal permanent residents, professionals, and other individuals with specialised skills. It also set a numerical limit on immigration from the Western Hemisphere for the first time.

The 1965 act marked a radical break from past U.S. immigration policies, which had restricted immigration from Asia and Africa and given preference to Northern and Western Europeans. The act opened entry to the U.S. to immigrants from other regions, significantly altering the country's demographic mix.

Temporary Protected Status

TPS provides protection from deportation, eligibility for employment, and travel authorization for beneficiaries. To be eligible for TPS, individuals must be nationals of a designated country, have filed for status during the specified registration period, and have been continuously physically present in the US since a designated date. They must also meet certain residency and admissibility requirements. It is important to note that TPS does not create a path to permanent residence or citizenship, and individuals must still meet eligibility requirements for other immigration benefits.

The process for applying for TPS involves submitting an application to USCIS, an agency within the DHS. The application process includes providing necessary forms, evidence, and fees. USCIS reviews applications for completeness and eligibility, and beneficiaries must comply with requirements such as biometrics collection.

TPS designations are typically made for 6, 12, or 18 months and can be extended based on country conditions. As of June 2024, 16 countries were designated for TPS, including Afghanistan, Burma, Cameroon, El Salvador, and Ethiopia. The US provides TPS to hundreds of thousands of individuals, who reside across the country, with significant populations in states like Florida, Texas, and New York.

Immigration Relief for Unforeseen Circumstances

The Department of Homeland Security (DHS) engages in immigration enforcement actions to prevent unlawful entry into the United States and to apprehend and repatriate noncitizens who have violated or failed to comply with U.S. immigration laws. Immigration and Customs Enforcement (ICE) is responsible for interior enforcement, detention, and removal operations. ICE's responsibilities include investigating the illegal movement of people, goods, guns, money, and drugs, as well as all kinds of illegal and counterfeit merchandise entering the country.

U.S. Citizenship and Immigration Services (USCIS) offers immigration services and relief to those affected by unforeseen circumstances, such as natural disasters, severe weather, national emergencies, severe illness, or conflicts abroad. These services are available on a case-by-case basis and may include:

• Changing or extending nonimmigrant status for individuals currently in the United States, even if their authorized period of admission has expired due to extraordinary circumstances beyond their control.
• Expedited processing of advance parole and employment authorization requests, especially for F-1 students experiencing severe economic hardship.
• Consideration of fee waiver requests for those unable to pay.
• Flexibility for those who are unable to submit evidence or appear for scheduled interviews due to unforeseen circumstances.
• Expedited replacement of lost or damaged immigration or travel documents, such as Green Cards, Employment Authorization Documents, and Arrival/Departure Records.
• Rescheduling of biometric services appointments.

To request assistance, individuals can contact the USCIS Contact Center at 800-375-5283 or update their address with USCIS to ensure they receive timely correspondence and benefits. It is important to provide explanations and supporting documentation, such as police reports or insurance claims, when requesting relief due to unforeseen circumstances.

Frequently asked questions