Subject Overview

Immigration Law Subject Overview

Introduction

Immigration law has increased in complexity over the years. As a result, the need for attorneys to represent individuals and companies on a variety of different immigration-related topics has grown.

The Immigration and Nationality Act controls the various options for individuals wishing to come to the United States. Generally, individuals are divided into two groups based on their intent. The first group is comprised of “immigrants” who wish to reside permanently in the United States; there are many immigrant visas available for individuals who desire to come to the United States permanently. The second group is “nonimmigrants” who intend to visit or work in the United States temporarily. Examples of nonimmigrant visas include student visas and tourist visas.

Three main areas of practice in the immigration field are family-based immigration, employment-based immigration, and immigration grounded in humanitarian concerns. Family-based immigration includes visas and other options that promote family reunification. Employment-based immigration encompasses visas that provide temporary or permanent work authorization; this practice area also covers compliance matters. Humanitarian immigration includes visas and other protections that provide temporary or permanent relief in various compelling humanitarian scenarios.

Immigration attorneys do not just help individuals obtain immigration benefits; attorneys may also represent clients when the government seeks to deport them. Aside from these central practice areas, immigration attorneys also assist clients in a variety of other capacities. The materials that follow will discuss the main practice areas as well as the potential venues where an immigration attorney may practice.

As described below, immigration attorneys’ responsibilities often require them to interact with administrative agencies. For this reason (among others), coursework in Administrative Law is essential, regardless of the type of immigration practice a student wishes to pursue.

Additionally, through the Government Process Clinic/Academic Internship, students can seek to arrange internships with local, state, or federal government agencies that address immigration-related matters. Through the Judicial Process Clinic/Academic Internship, students can seek to arrange internships at an immigration court. The central government agencies in the immigration field are reviewed below and on the accompanying resources page. 

Family-Based Immigration

U.S. immigration law is strongly grounded in the philosophy of family reunification. That being so, immigration law provides numerous family-based visas.

There are two types of family relationships that may qualify for a family-based visa. The first is immediate relatives, which includes parents or spouses of U.S. citizens. Visas based on these relationships are quickly processed—relatively speaking—because there is no cap on the number of family-based visas the government may issue in a given year. Non-immediate relatives must wait longer—sometimes, even decades.

Immigration attorneys practicing in this area understand the types of familial relationships that may qualify for family visas, and they are able to navigate the often tedious application process both in the United States and abroad at consulates. They are also able to analyze various waivers for conduct that ordinarily disqualifies a prospective immigrant’s admission and work through the filing and interview process. Additionally, attorneys must learn how to properly document a bona fide relationship to ensure visa qualification.

Employment-Based Immigration

Another major undercurrent of immigration law is the goal of bringing in qualified employees for U.S. employers. The law provides for numerous visas that permit employers to do so. As a result, immigration attorneys work with employers who seek to hire foreign nationals. Attorneys will help employers understand the types of potentially applicable work visas and file the necessary paperwork. There are nonimmigrant work visas such as the H-1B, L-1A, and L-1B, and there are immigrant visas as well.

Before an individual can obtain an employment visa, the prospective employer may have to secure a labor certification approval from the U.S. Department of Labor. The bulk of corporate practice revolves around the labor certification, which is a testing of the U.S. labor market to ensure that the prospective employee is not displacing a comparably qualified U.S. worker. For attorneys practicing in this capacity, the ability to carefully craft a job description is very important.

Since the employment categories also vary in terms of requirements, waiting time, and eligibility to file, attorneys must be familiar with the specific criteria for each employment visa and any changes to the relevant caps. Within certain categories, the number of people who desire an employment visa is typically much higher than the number of employment visas issued by the government in a given year. Consequently, attorneys must know how to maximize their clients’ chances of securing work visas for their prospective employees.

In addition to securing work visas, another growing subset of employment immigration practice is “I-9 compliance” work. Immigration attorneys are retained to help businesses comply with ongoing immigration-related obligations. For instance, attorneys may be called on to help employers avoid sanctions for failing to properly verify, document, and retain paperwork on the immigration status of their employees and help clients make sure that the systems they have in place are adequate to comply with all federal standards.

Immigration attorneys also provide counsel when the government claims that a business is not complying with labor requirements applicable to foreign workers. The government may levy both criminal and civil fines and sanctions against employers found to be in violation.

Humanitarian-Based Visas and Protections

Immigration law provides various opportunities for individuals to obtain visas and protective status based on harms they have suffered or fear to suffer if they return to their home countries. One such form of protection is asylum. Asylum is available for individuals who fear they will be persecuted for certain enumerated reasons. Asylum applications may be filed affirmatively with the government or defensively after the government has placed the client in a removal proceeding.

Withholding of removal and protection under the Convention Against Torture are related forms of protection; both are based on an individual’s fear of returning to his or her home country.

Individuals may qualify for certain types of visas because they have been victimized or face danger in various scenarios. Examples include T visas for victims of human trafficking, U visas for victims of violent crime, VAWA for violence against women or men in relationships with U.S. citizens or green card holders, Temporary Protected Status for individuals facing dangerous conditions in their home countries, and Humanitarian Parole for individuals who must come to the United States for a compelling need. 

Citizenship and Naturalization

Immigration attorneys assist clients who wish to become citizens of the United States. There are various means through which an individual can become a U.S. citizen, such as birth, naturalization, and derivation. Immigration attorneys practicing in this space must be familiar with the law surrounding all these various means. They must analyze various factual scenarios, research the applicable law, and steward clients through the procedures. Denials of U.S. citizenship naturalization applications are first appealed through U.S. Citizenship and Immigration Services and then contested in federal district court.

Outbound Immigration

Another area of practice is “outbound” immigration, where attorneys assist U.S. citizens or even foreigners legally within the United States to find and receive the appropriate visa to relocate to another country. This area of practice tends to partner practitioners with attorneys in the foreign country where the client seeks to relocate. In general, familiarity with international law is not a prerequisite for this practice area, but foreign language skills are particularly important.

Removal Proceedings

When the government believes that an individual does not have a legal basis for being in the United States, the government may try to remove the individual from the country—“removal” being the technical term for deportation. Individuals can be removable for a variety of reasons, such as the fact that they entered the United States without authorization, they entered the United States with a valid non-immigrant visa but it has expired, or perhaps they are non-citizens convicted of crimes while in the United States.

There are several mechanisms the government may use to try to remove an individual, including reinstatement of removal, expedited removal, and more formal removal proceedings. The first two options involve quick processes; an attorney must understand when and whether each applies to the client.

The more formal removal proceedings take place in front of immigration judges. These administrative proceedings are less formal than proceedings in Article III courts, but a successful attorney must still be versed in the general stages of the litigation process, including filing for bond, interviewing clients, collecting evidence, examining witnesses, and submitting relevant documentation.

In some instances, an immigration attorney may be able to successfully challenge the government’s claim that the client is removable. More often, however, the core of the case is proving that a client qualifies for potential avenues of relief from removal available under the law, such as asylum, cancellation of removal, and adjustment of status.

Attorneys who represent individuals in removal proceedings must be well-versed on the intersection between criminal law and immigration law, which is called “crimmigration.” The manner in which immigration law characterizes crimes can have significant implications for whether a client is removable or eligible for relief from removal. Crimmigration has emerged as a separate area of specialized practice.

Removal decisions can be appealed to an appellate body within the adjudicating administrative agency and then to the federal courts of appeals, so attorneys practicing in this area should have solid persuasive writing and oral advocacy skills.

Immigration Matters Litigated in Federal District Court

As noted above, appeals of removal orders go straight from an administrative appellate body to the federal courts of appeals. Several types of immigration cases, however, may be brought in federal district court, including class action lawsuits decrying wrongful application of the law; mandamus or Administrative Procedures Act actions that seek to compel the government to act; declaratory judgments to find U.S. citizenship; and seeking redress under the Federal Tort Claims Act, Bivens, and other constitutional protections.

In addition to the immigration courses listed on the accompanying pathway, students who seek to practice in this area would also benefit from coursework in Civil Pretrial Advocacy and Civil Trial Advocacy. Students should be aware, however, that federal district court practice does not comprise the bulk of most immigration attorneys’ workloads.

Emerging Areas of Practice

Immigration law is incredibly fluid. In addition to legislative amendments to immigration law, there have been and continue to be administrative actions where the President will exercise executive authority to foster regulatory changes or enforcement policies that significantly impact non-citizens’ circumstances.

Recent administrative policies include DACA (the Deferred Action for Childhood Arrival) and DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents). These programs can provide temporary reprieve from deportation to certain individuals. When such actions occur (and no legal challenge is successfully mounted against them), immigration attorneys determine how the changes impact clients and help clients take advantage of these new policies when possible.

Practice Venues 

Law Firms

Full-service, large law firms often have an immigration section that focuses predominantly on employment-based immigration issues. These firms may occasionally represent an individual in removal proceedings as part of their pro bono efforts. Larger firms specializing solely in immigration matters typically offer the full array of immigration services set forth above. Smaller immigration firms tend to concentrate on either employment or family issues; the latter may also include removal work and assistance on humanitarian-based matters.

Immigration law is a particularly ripe area for solo practitioners or small firm practice. Attorneys practicing in such capacities often develop expertise in specific practice spaces. For example, they may choose to concentrate on family-based immigration, humanitarian protections and visas, and removal proceedings.

Solo practitioners are less likely to handle employment-based immigration matters. An immigration attorney who operates a solo practice or works in a small firm will need to understand how to successfully run a law office. In this respect, STCL Houston’s Law Office Management course would be beneficial. For additional information, please review the Solo & Small Firm Practice Subject Overview.

Public Interest Groups

A small number of attorneys work for public interest organizations that either specialize in immigration matters or address immigration as one of many subject matters. The types of immigration issues that public interest groups tend to focus on include humanitarian protections and visas, defense against removal, responses to recent administrative actions such as DACA, and possibly some family-based immigration matters. Conversely, public interest groups are rarely involved in employment-based immigration unless they are advocating for a change to the legal framework.

Some advocacy groups also file class action lawsuits in federal district court on behalf of a class of immigrants. Examples of such class action lawsuits would include challenges to the conditions in immigration detention facilities around the country and complaints about the length of time it takes federal agencies to adjudicate immigration applications.

Additionally, these groups might lobby, produce studies, or draft policy papers that advocate for certain reforms to immigration law. For additional information, please review the Public Interest Law Subject Overview.

Government Positions

A number of federal agencies employ attorneys in various immigration-related capacities. Immigration and Customs Enforcement, which is a component of the Department of Homeland Security, represents the government in removal proceedings before immigration judges and the administrative appellate body.

The Office of Immigration Litigation, which is a component of the Department of Justice, represents the government in federal district and appellate courts. The Department of Justice also houses the Executive Office for Immigration Review (EOIR). EOIR is comprised of the immigration courts and the Board of Immigration Appeals—the appellate body that hears appeals of immigration judge decisions. EOIR employs immigration attorneys in a variety of capacities.

U.S. Citizenship and Immigration Services (USCIS), a component of the Department of Homeland Security, employs attorneys as adjudication officers, asylum officers, and in their general counsel’s offices. Customs and Border Patrol also employs attorneys to provide legal advice on immigration-related matters.

Assistant United States Attorneys who work in the civil unit of their offices throughout the country may also specialize in immigration matters as a regular part of their dockets.

Finally, the Department of State supervises the numerous consular offices around the world, where consular officers adjudicate and handle the visa processes of applicants wishing to come to the United States. In addition to the State Department, USCIS also plays a role in classifying and processing refugees who seek to resettle in the United States.

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