Review Of Immigration Questions And Answers (3rd Edition) By Carl Baldwin
Mark R. von Sternberg
American immigration law is notorious for its complexity. Lawyers who are not expert in the immigration field are customarily baffled by what they see as a seamless web of obfuscation and confusion. And many immigrants at the mercy of this "system" routinely believe that they do not stand a chance, -- even with a lawyer.
Now in its third edition, Carl Baldwin's book, Immigration Questions and Answers serves as an illuminating guide with which to sort out this chaos. Like other "classics" of its kind which enlighten the general reader concerning otherwise incomprehensible legal requirements, Immigration Questions and Answers reduces an arbitrary jumble of rights, penalties and procedures to rational understanding. That the book accomplishes this goal with apparent ease is a major achievement and, perhaps, a turning point in getting vital information to members of the public affected by immigration law and policy. Designed primarily for the layperson, Immigration Questions and Answers can be turned to for practical guidance by the immigrant and the practitioner alike.
Cast in a question and answer format, the book offers a comprehensive overview of modern immigration legislation as it applies to specific case situations. The author clarifies fundamental distinctions which often cause difficulties such as the austere separation maintained between those coming to the U.S. permanently (intending immigrants) and those seeking admission for only temporary purposes (non-immigrants). The author looks at the (in general) mutually exclusive character of these two classes in terms of their intent, noting the limited exception to this rule (the notion of dual intent) for specific categories of non-immigrants.
The various non-immigrant classes (commercial and non-commercial) are examined with a view to detailing their essential attributes and evidentiary requirements. With regard to immigrant visa processing, the author explores family-based and employment-based immigration (including the labor certification process), again providing a clear overview of what each step in the process entails, what documentary submissions must accompany the underlying petition, and, most critically, when the immigrant qualifies for the relief in question. As concerns both immigrant and non-immigrant processing, the reader's attention is drawn to important web sites for additional information, -- including that of the INS where relevant Forms and instructions are to be found.
The author discusses the traditional framework of family-based immigration (defined in terms of an actual relationship to a U.S. citizen or lawful permanent resident), and provides a comprehensive overview of the conditions under which an immigrant visa petition will succeed. When will a marriage be regarded as "bona fide" for immigration purposes? Under what circumstances will the INS view a marriage as "fraudulent"? When can an individual qualify as a "child" as that term is presently defined? These questions and others are analyzed in lucid, "user friendly" passages which make the substantive law understandable to those who can benefit from it. Hopefully, such guidance will also serve to prevent the kind of client error which can hopelessly mar an immigrant's record and make the prospect of future immigration all but impossible.
Besides these historical bases for family-based immigration, the author also looks at new classes of self-petitioners who can obtain immigrant visas by virtue of comparatively recent legislative changes. Included here are the widow/widower category (added by the Immigration Act in 1990) and the provisions pertaining to battered spouses and children, -- (added by the Violence Against Women Act in 1994). Also examined is the "conditional residence" regime (added in 1986 through the Marriage Fraud Amendments Act) for the spouses of residents and citizens and the evidentiary steps for complying with that regime. Importantly, substantial attention is given to the "public charge" issue as it affects family-based immigration and the need for most petitioners to comply with new "affidavit of support" rules together with their stringent economic requirements.
Employment-based immigration is broken down and explained essentially in terms of those classes which, because of special attributes such as renown in a specific field, are exempt from U.S. labor policy and those classes which must qualify, if at all, under the more austere labor certification process. As is true throughout the work, statutory distinctions here are sketched with accuracy and simplicity. The author focuses the reader's attention on the growing impact of new rules relating to "unlawful presence" on the labor certification process, and the tendency of those rules to make employment-based immigration virtually impossible for the undocumented.
Helpful guidance is also offered in an area where the application process has received little or no attention: the visa lottery. What will disqualify an otherwise successful application? What information must the form contain? How can the applicant be helped by the distinction between his/her "native country" and the "country of birth"? What substantive requirements are there to qualifying? This basic information must be seen as providing indispensable guidance in an area where lawyers do not usually become involved.
Another distinction explored by the author is that between qualifying for the visa (immigrant or non-immigrant) and the actual procedure by which the immigrant is actually admitted to the United States. A natural objective of immigrant visa processing is, after all, to obtain lawful permanent resident status (to acquire a "green card"). The significance and advantages of lawful permanent residence are explained as the cornerstone of most central immigration planning. Immigration Questions and Answers sets forth in clear and unambiguous language the conditions upon which an immigrant would be eligible to acquire permanent residence in the U.S. and when he/she would be forced to seek consular processing abroad. These two types of procedures are carefully developed by the author, again with references to the INS web site containing relevant Forms and information. The immigration consequences of a departure (including the possibility that the immigrant may render him/herself "inadmissible") are given (justifiably) in depth treatment.
The author's discussion of the grounds of "inadmissibility" (which apply to the act of admission, but have no bearing on whether the immigrant qualifies for the underlying visa) is informed and literate. Most of the basic grounds (visa fraud, document fraud, communicable diseases and crimes) are explained with clarity as are the respective waivers for those grounds and the conditions for granting them. Here, the author raises the potentially fatal effect of specific bars adopted by the Congress in 1996 foreclosing from admission certain aliens who have resided in the U.S. in "unlawful presence" for specified periods of time. The author's treatment of these bars is especially nuanced and tailored to specific fact situations, as is his discussion of recent LIFE Act amendments which have virtually removed these preclusions for certain classes who can obtain residence in the United States. The author explores with sensitivity the political dialectic which will determine whether this relief will be extended in the future or allowed to become moribund.
Immigration Questions and Answers also looks at the arcane world of modern "removal" proceedings (the administrative process by which immigrants are actually expelled from the United States). The author traces the evolution of this process over time (beginning when the U.S. had a bifurcated removal process consisting of deportation and exclusion proceedings) and examines the various applications for lasting immigration relief which may be advanced before an immigration judge. The burgeoning effect of the new grounds of deportability and in particular the revised "aggravated felony" definition are given considerable attention here. The author looks at the new, superseding (and essentially more restrictive) forms of relief created by the 1996 legislation. A brief summary of Cancellation of Removal is offered both as it pertains to lawful residents seeking relief from the collateral consequences of certain criminal convictions, and as it applies to undocumented immigrants who have lived in the U.S. for substantial periods of time and whose removal would cause exceptional hardship to a predicate relative having status in the U.S. The parallel but somewhat more facilitated relief which applies in the case of battered spouses and children is also outlined for the reader.
Most prominent here is the author's exceptional summary of the political asylum process, -- a form or relief available to those immigrants whose human rights the home State is unwilling or unable to maintain. Drawing on his considerable experience with the Bar Association of the City of New York working with Haitian asylum seekers, the author looks at eligibility requirements from a practical perspective, and offers clear guidance as to who can, and who cannot, put forward such a claim. Immigration Questions and Answers also explores the ways in which Congress has (somewhat questionably) sought to curtail access to the asylum remedy, including the new expedited removal process and the highly controversial one-year filing deadline. The author's treatment of these restrictions and their non-applicability to companion forms of relief (withholding of removal and relief under the Convention Against Torture) obviously reflect the sophistication and depth of an "old hand".
Finally, the book looks at citizenship requirements. How much continuous residence must a citizenship applicant have? What will interrupt that residence? How much continuous physical presence must there be before a citizenship application can be filed? How may a child born abroad to U.S. citizen parents be recognized as a citizen? When should an application for citizenship not be filed because of the applicant's past criminal record? All these questions are addressed and given succinct answers which should guide the immigrant in forming a strategy.
A host of other questions are also developed, and a complete discussion of them remains outside the scope of this review. The mechanics of the "parole" process; the availability and the kinds of U.S. travel documents; the criteria used by the Attorney General for designating a country (or part of a country) for Temporary Protected Status and the conditions under which a national (or resident) can qualify for that status; -- and, perhaps most saliently, the circumstances under which the INS will confer employment authorization, -- all these subject matter areas form important aspects of Carl Baldwin's book. The most outstanding feature of Immigration Questions and Answers, however, is its ability to simplify the "architecture" of modern immigration law and policy, -- its unifying tone of clarity which permits the immigrant and his/her lawyer to see the situation in context and to understand where they fit within the fabric of the legislation taken as a whole. It is this overriding quality of lucidity and clear analysis which distinguishes what Carl Baldwin has written and makes Immigration Questions and Answers such a vital contribution to the public interest.
[Editor's Note: The book can be ordered online from Allsworth Press at www.allworth.com/Pages/SC_BL.htm, and from Amazon.com by clicking here.]
About The Author
Mark R. von Sternberg is a Senior Attorney with Catholic Legal Immigration Network, Inc./Catholic Charities Archdiocese of New York, where he concentrates on litigation before the Immigration Courts and the Board of Immigration Appeals. Since January 1999, Mr. von Sternberg has also served as an adjunct faculty member at Pace University School of Law where he teaches general immigration law and comparative refugee law. Mr. von Sternberg received a J.D. degree from Vanderbilt University School of Law in 1973 and an LL.M. degree (in International Legal Studies) from New York University School of Law in 1984. He has lectured at law schools and at professional associations regarding immigration matters and has written extensively, particularly in the areas of refugee law, international humanitarian law, and human rights. Mr. von Sternberg is the author of a recently published treatise regarding the refugee definition as applied in the United States and Canada. In 2002, he received the American Immigration Lawyers Association Pro Bono Award.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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