My Cup Runneth Over: The Intersection of Immigration Law & Other Bodies of Law

Regardless of what happens in the elections later this year, immigration law is here to stay. According to the Migration Policy Institute, approximately 41.3 million immigrants lived in the United States in 2013. That same year, the U.S. was the final destination of about 20 percent of the world’s international migrants.

Immigrants accounted for 13 percent of the 316 million people living in the U.S. When U.S.-born children of immigrants are added, the number balloons to about 80 million people, or 25 percent of the population.¹ With numbers like this, we can say that the cup of immigration law is truly running over.

Yet, immigration law is about more than simply providing visas for foreign nationals wanting to visit, study, do business or live in the U.S. Since immigrants start businesses, higher and fire employees, and are hired and fired themselves, immigration law overlaps with labor law.

Since immigrants marry, have children, divorce and die, immigration law brushes shoulders with family and probate/estate planning law. Since immigrants commit crimes or are victims of crime, immigration law interacts with criminal law. The list goes on.

Many of these overlaps have significant consequences. Consider the following real-life cases:

A potential client came in for a consultation. We will call him Carlos. He was a foreign national from Honduras, legally living and working in the U.S. under a Temporary Protected Status (TPS). TPS is available to eligible foreign nationals when the Secretary of Homeland Security designates a country as “temporarily unsafe” because of conditions in that country which make it dangerous for their nationals abroad to return home. This typically happens during times of civil unrest or natural disaster.

While holding his TPS, Carlos was charged with a felony (first offense, no injuries or casualties). He was appointed a public defender and later offered a plea deal that included a fine and probation, but no jail time. Under advice of counsel, He accepted. It seemed like a good deal until, one year later, when his TPS expired and he applied for renewal, his petition was summarily denied because of the felony conviction.

In another case, a client (we will call her Jane) had a temporary green card. Temporary green cards are issued to a foreign national when the marriage to the U.S. citizen is less than two years old.

Within 90 days from the two-year anniversary, the couple must jointly file a Form I-751, Petition to Remove the Conditions of Residence. The foreign national then receives his or her permanent green card. But Jane was persuaded by a divorce attorney to withdraw her adjustment of status claim based on her marriage, because her spouse was now divorcing her.

However, apparently unknown to the divorce attorney, Jane had better options. One of them was the filing of a waiver petition to the joint filing requirement. If Jane could prove that hers was a bona fide marriage, she had a good chance of getting the waiver and successfully filing the removal of conditions individually.

In yet another case, the wife was a Legal Permanent Resident (LPR)—a foreign national with a valid permanent green card. LPRs may apply for citizenship after five years or remain LPRs for 10 years, then apply for renewal.

In this particular situation, she neglected to apply for citizenship. She was married to a very wealthy U.S. citizen. Upon his death, she and her family were upset to discover that the unlimited marital deduction did not apply to her. Under this deduction, any asset, regardless of worth, left to a surviving spouse is exempt from federal estate tax. However, the spouse must be a U.S. citizen in order to qualify. She wasn’t, so she didn’t.

The point of citing these incidents is not to suggest that public defenders, family law attorneys, or probate lawyers are incompetent or uncaring for not knowing the intricacies of immigration law, any more than immigration attorneys are incompetent for not being familiar with the complexities of, say, tax law.

However, every attorney should be aware that immigration law is a lot more than simply providing visas for foreign nationals. The cup of immigration law runs over and spills into many other areas of law, and often with serious implications.

More and more people, in and out of the legal profession, are finally understanding this. For example, since March 31, 2010, criminal defense attorneys are required to inform immigrant clients that by pleading to criminal charges, they may be subject to deportation. This was the ruling of the Supreme Court in Padilla v. Commonwealth of Kentucky, 559 U.S. 356 (2010), recognizing the intersection of immigration and criminal law.

In short, in a nation that is the final destination of one in every five international immigrants and where first generation immigrants account for 13 percent of the population (and rising), law practitioners should know that immigration law is likely to overlap into their practice. Consequently, it may be a good idea for every attorney to have the name and number of an immigration attorney on speed dial.

[1] Batalova, J. Z. (2015, February 26). Frequently Requested Statistics on Immigrants and Immigration in the United States. Migration Policy Institute: http://www.migrationpolicy.org/article/frequently-requested-statistics-immigrants-and-immigration-united-states?gclid=CNmFkcXv2csCFZSGfgodB5AOzA.