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CITIZENSHIP OR LPR REQUIREMENT OF LICENSURE HELD UNCONSTITUTIONAL

May an alien be denied a professional license because he or she is not a U.S. citizen or lawful permanent resident (LPR)?

Many states have a law which provides that only U.S. citizens or LPRs may obtain a license to practice certain professions such as medicine, nursing, dentistry, and engineering. An example of such a law is a provision in the New York State Education Law which states that to qualify for a pharmacist’s license the applicant must be a U.S. citizen or LPR.

The exclusion covers non-LPRs including nonimmigrant workers who have authorization to work in the U.S.

But in a recent case, a federal court in the Southern District of New York held that the abovementioned New York law is unconstitutional because it denies aliens who are not permanent residents equal protection of the law and that it is contrary to the federal power to regulate immigration.

The plaintiffs in the case, Adusumelli v. Steiner, are H-1B and TN temporary workers. H-1B workers are in the U.S. temporarily to perform services in a specialty occupation. TN workers are citizens of Canada or Mexico who are in the U.S. to engage in business activities at a professional level pursuant to the North American Free Trade Agreement.

The plaintiffs secured limited licenses under a waiver provision of the law but their licenses were not renewable. They sued the heads of the New York agencies in charge of enforcing the law, seeking to declare the statute unconstitutional and permanently enjoining the defendants from enforcing it.

The defendants argued that nonimmigrant aliens are temporaryily in the U.S. and that the law rationally protects the public from the consequences of their temporary status. They maintained that the law is necessary to protect the health and safety of New York residents by enforcing and regulating disciplinary rules and malpractice actions and that persons who are here only temporarily would be less likely to comply with the disciplinary rules.

In deciding the case, the Court noted that classifications based on immigrant status such as the New York law are “intrinsically suspect” and are subject to “strict judicial scrutiny.” It cited cases decided by the U.S. Supreme Court which struck down alienage classifications. Among these cases were a New York law excluding noncitizens from civil service, a Connecticut law making noncitizens ineligible to take the bar exam, and a Puerto Rican law that barred noncitizens from engineering practice.

It also said that the only cases where the Supreme Court upheld laws discriminating against aliens and applying lesser scrutiny pertained to the exclusion of aliens from political and governmental functions and the denial of benefits to undocumented aliens.

The defendants contended that the “strict scrutiny” standard should not apply in the case because LPRs are not being discriminated against but only all other aliens. They argued that LPRs have different rights and obligations than those of other aliens. LPRs, unlike other aliens, they asserted, pay taxes like citizens, serve in the military and have authorization to live and work indefinitely.

But the court was not convinced that the differences between LPRs and nonimmigrants are substantial enough to remove non-LPRs from the “strict scrutiny” standard.

The Court also said that the New York law imposes additional burdens not intended by Congress and thus conflicts with the federal immigration power.

Recent CSPA Decision Favors Aged-Out Children

A child who has turned 21 may still be considered younger than 21 years old under the Child Status Protection Act (CSPA). Being considered younger than 21 for immigration purposes significantly reduces the wait time to become a lawful permanent resident.

Locking a child’s age at younger than 21 occurs when a United States citizen parent petitions an unmarried child before he or she turns 21 but the child’s adjustment of status or admission as an immigrant takes place after reaching 21.

Another situation when a child’s age is frozen under CSPA is when a lawful permanent resident parent is the beneficiary of a visa petition or files a visa petition for his or her child under 21. The number of days between the filing of the petition and the approval is subtracted from the child’s age on the date that the priority date of the child or parent becomes current. If the difference is less than 21, the child benefits from the CSPA.

An additional requirement for CSPA purposes is that the child must have “sought to acquire” lawful permanent resident status within one year of the visa number availability. This is the date when the visa petition is approved and the priority date is current as indicated in the Department of State Visa Bulletin.

The phrase “sought to acquire” has been interpreted by the Department of Homeland Security (DHS) and the Department of State (DOS) narrowly. The DHS has stated that the phrase refers to the filing of an adjustment of status application.

The DOS has said that for purposes of consular processing it means the submission to the National Visa Center of the Form DS-230 Part I by the child or by the child’s parent or Form I-824 by the parent in cases where the child is following to join.

Many CSPA applications have been rejected or denied because of such strict interpretation.

In a recent unpublished decision by the Board of Immigration Appeals, the term “sought to acquire” was given a broad meaning.

In this case, Matter of Murillo, the visa petition of his father had a priority date of October 16, 1995 and was approved on August 8, 1996 when Murillo was 12 years old. A visa number became available on June 1, 2003 when he was 19 years old. However his attorney whom he retained to file his adjustment of status filed his application more than 20 months from the date when a visa number became available.

The DHS concluded that Murillo was not eligible for CSPA benefits because he did not file his adjustment application within a year from June 1, 2003. But the Immigration Judge ruled that he was eligible because the requirement of “sought to acquire” could be satisfied by circumstances short of filing the application. The hiring of the attorney to prepare the application satisfied this requirement.

The Board of Immigration Appeals agreed with the Immigration Judge. The Board said that the term “sought to acquire” was broad enough to include substantial steps (such as hiring an attorney who completed the form and obtaining a money order for the filing fee) toward the filing of the adjustment application within the required one-year period. To hold otherwise, the Board said, “would undermine the very purpose and intent of the statute which was to protect an alien ‘child’ from ‘aging out’ due to ‘no fault of her own’.”

Authorized to Work but Status is Unlawful

May an alien be considered to be in unlawful status even though he or she is authorized to work? In the recent case of Bokhari v. Holder, the Court of Appeals for the 5th Circuit said yes.

The decision has been criticized by some immigration lawyers as an “immigration absurdity” and one that “defies logic.”

In this case, Bokhari entered the United States on April 9, 2001 as a B-2 nonimmigrant. His B-2 status was extended through October 9, 2002. On June 11, 2002 his status changed to L-1A nonimmigrant worker (intracompany transferee).

His employer applied for an extension of his L-1A status on June 09, 2003, one day before its expiration. The application was denied on March 19, 2004. His employer appealed but the appeal was denied.

On June 8, 2004 his employer filed an I-140 (employment-based) visa petition on his behalf and simultaneously, Bokhari filed for adjustment of status. The I-140 petition was approved but the adjustment of status was denied. The denial was based on the ground that Bokhari had failed to maintain lawful immigration status for more than 180 days before filing the application. Section 245k of the Immigration and Nationality Act allows an alien who is out of status to file an adjustment application if his or her unlawful status lasted less than 180 days.

Because of the denial of his adjustment application, Bokhari was placed under deportation proceedings. During the hearing, Bokhari claimed that he was eligible for adjustment but the Immigration Judge ruled that he was not eligible because the application was filed more than 180 days after his L-1A status expired on June 10, 2003.

Bokhari appealed to the Board of Immigration Appeals. He argued that he was in lawful status until his extension application was denied on March 19, 2004. He asserted that he was in lawful status from the expiration of his L-1A on June 10, 2003 through March 19, 2004 because immigration regulations allowed him to work during that period. The regulation that he cited authorizes an alien to continue working for 240 days while the extension application is pending.

The Board of Immigration Appeals denied his appeal and stated that although he had been authorized to work, the work authorization did not provide him lawful immigration status.

In his appeal to the Court of Appeals he argued that the Board of Immigration Appeals misinterpreted the immigration regulation and the statute. He claimed that the automatic employment authorization provided by the regulation logically gave him lawful immigration status.

The Department of Homeland Security (DHS) on the other hand contended that employment authorization is not a grant of lawful immigration status. It said that they are two different issues and that the extension application did not confer lawful status.

The Court of Appeals agreed with the DHS. It held that the employment authorization provided to Bokhari under immigration regulations did not provide him with lawful status. The Court pointed out that the term “lawful immigration status,” is granted to nonimmigrants “whose initial period of admission has not expired or whose nonimmigrant status has been extended,” Bokhari, said the Court, was in unlawful status after June 10, 2003 and was thus ineligible to have his status adjusted to that of a permanent resident.

Proving Extreme Hardship to Waive Inadmissibility

Under the Immigration and Nationality Act, any alien who has been unlawfully present in the United States for 1 year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States is inadmissible.

But said alien may be granted a waiver of inadmissibility upon a showing that the alien’s citizen or lawful permanent resident spouse or parent would suffer extreme hardship if the alien is not allowed to return to the United States.

In a recent case, the District Director of Mexico City denied the waiver application of an alien who had been unlawfully present in the United States but the Administrative Appeals Office (AAO) granted the waiver upon appeal.

The alien had entered the United States without authorization in May 2003 and remained until June 2007. He was thus unlawfully present for more than 1 year. He filed a waiver application on the ground that his inadmissibility would cause extreme hardship to his wife.

Extreme hardship is not defined in the statute but Matter of Cervantes-Gonzales, a case cited by the AAO listed the factors relevant in the determination of what constitutes extreme hardship.

The factors include the qualifying relative’s family ties outside the United States, the political and economic conditions in the country where the relative would relocate and the relative’s ties in that country, the financial effect of the relative’s departure from the United States and the relative’s health conditions given the unavailability of suitable medical care in that country.

In deciding the case, the AAO stated that for the waiver to be approved, the applicant must first demonstrate extreme hardship to his wife if she were to remain in the United States while the applicant resided abroad. The applicant must also prove extreme hardship to his wife if she were to live abroad with her husband. In addition, the AAO said that the applicant must prove eligibility for the waiver in terms of equities in the United States that are not outweighed by adverse factors.

To prove extreme hardship to his wife while in the United Sates, the alien submitted proof of her emotional and financial hardship. He presented a mental health document of her depression, her need for antidepressants, and a psychologist’s recommendation that she be excused from work due to her mental condition. He also submitted evidence of her financial hardship due to lack of financial support from him.

As for extreme hardship to his spouse in the event that she would be forced to relocate and live with him, he submitted proof of the problematic political and economic conditions in the country of relocation. The wife asserted that the country has a high crime rate, especially homicide and kidnappings.

The wife also presented a medical report attesting to the problematic health conditions of her child caused by the lack of drinking water, unsanitary conditions, and unavailability of basic food supplies in the country of relocation. She also noted that her husband had not been able to find employment in that country.

His wife also described the hardship that she would face as a result of her leaving her family in the United States, including her father, her mother, her 4 brothers and sisters, her long term gainful employment, her community, and her church. She would not be able to maintain her quality of living.

The AAO found that wife’s emotional and financial hardship rose to the level of extreme hardship if the alien were unable to reside in the United States.

In making its decision, the AAO had to balance the adverse factors with the favorable factors. It found that the adverse factors namely, the alien’s unlawful entry and unlawful presence and employment in the United States were outweighed by the favorable factors consisting of the extreme hardship to the wife, community ties, support letters, active involvement with the Christian Center, gainful employment, lack of criminal record, and the passage of over 6 years since the alien’s unlawful entry.

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