Immigration Laws in New York, USA

Immigration attorney in New York

Bismillahir Rahmanir Rahim. Praise be to God. Blessings and peace upon the messenger, and his family and companions.

Allah Almighty said: “O My worshipers who believe, My earth is vast, therefore worship Me!” {AlAnkabout:56}. Additionally,  the Prophet Muhammed, peace be upon him, said: "And I command you with five that Allah commanded me: Listening and obeying Jihad, Hijrah (immigration), and the Jama'ah.”

Immigration to Ethiopia was the first migration in Islam after the mission of the Messenger. So, he migrated with his followers, looking for safety and security.

This immigration wasn't the only one in Islamic history. Also, the messenger and his companions migrated again to Almadina After they were harmed and fought. It was narrated from Kathir bin Murrah that Abu Fatimah told him that he said: "O Messenger of Allah, tell me of an action that I may do and persist in it." The Messenger of Allah said to him: "You should emigrate, for there is nothing like it."

In General, the Islamic law allows and suggests immigration, as mentioned in the Holy Quran:” He knows that among you there are the sick and others traveling the road seeking the bounty of Allah”{Al Muzzammil:20}. Islam suggests immigration for many purposes, such as migration for seeking security, study, or work. Allah, in the Holy Quran, said: “Whosoever emigrates in the way of Allah shall find in the land numerous refuges and abundance. Whosoever leaves his house an immigrant to Allah and His Messenger and then death overtakes him, his wage shall have fallen upon Allah. Allah is the Forgiver, the Most Merciful.” {Annisaa:100}. Also said: “And those who after they have been wronged emigrated for the Cause of Allah, We will lodge them with a good (life) in this world, but greater still is the wage of the Everlasting Life, if they but knew” {An Nahl:41}

On the other hand, Islam encourages the support of immigrants and promises to reward them. As we see the Ansar how they supported the Prophet in Islamic history, and so the Prophet promised them a lot of rewards. As Allah Almighty said:” And those before them who had made their dwelling in the abode (the City of Madinah), and because of their belief love those who have emigrated to them; they do not find any (envy) in their chests for what they have been given and prefer them above themselves, even though they themselves have a need. Whosoever is saved from the greed of his own soul, they are the ones who win” {Al Hashr:9}. It also mentioned in Hadiths as When the Messenger of Allah (s.a.w) arrived in Al-Madinah, the Muhajirun came to him and said: 'O Messenger of Allah! We have not seen a people more willing to sacrifice when having a lot, nor more patient when having a little than the people whom we are staying among. Our provisions are so sufficient, and we share with them in their products such that we fear that all our reward is gone. So the Prophet (s.a.w) said: "No. As long as you supplicate to Allah for them and praise (show gratitude to) them(for it).

The brotherhood between immigrants(Almuhajirun) and residents(Al-Ansar) achieved its goals as the Prophet; peace be upon him, established it on faith and belief. Then we saw these wonderful pictures of cooperation between the immigrants and the residents.

Overview of the Immigration System in New York, USA | Help of Muslim Lawyer

The current immigration law system in the United States was produced after Independence from Great Britain. The legal system has been fashioned to reflect the politics and migration flows of the United States in the current century.  The earliest forms of legislation were fashioned to impose limitations that favor Europeans; the enactments that took shape on the immigration laws in 1965 opened the doors of the United States to other parts of the world. The legislation that followed has been tailored to reflect the concerns of refugees, immigration and terrorism. Supreme Court precedents are usually aimed at reinforcing the plenary power doctrine. This doctrine holds that normal constitutional constraints touching on federal authority cannot be applied to restrictions in immigration. Decisions by the Supreme Court show that migrants can be excluded based on some discriminations like social and political views. This is based on restrictive laws.

The legal immigration system of the United States takes place through an alphabet soup containing visa categories with limited pathways. These pathways are family relationships, employer ties, and humanitarian needs. Those with skill-sets can try their luck through a green-card lottery. The visa categories vary through different requirements. They have various numerical caps with different rights and responsibilities. The visa categories in the current legal immigration system are based on laws enacted in 1965 and 1990. These are permanent visas and temporary visas. The permanent visas were known as immigrant visas while the temporary ones were non-immigrant.


Recent Developments that Warrant Immigration Laws

Recent immigration action took place in 2012 when the then US President Barack Obama acted with executive discretion to allow young adults who have grown in the country illegally to obtain deportation relief and work permits. This program is known as the Deferred Action for Childhood Arrivals. The program was expanded in 2014 but remained on hold because of the legal challenge by 26 states.

The Patriot Act signed into law in the year 2001 by the then President George Bush signaled discrimination against the Muslims in the United States. The non-citizens who were suspected of having engaged in terrorist activities were detained without a warrant by the Attorney General as per the law. There was no congressional debate. Enforcement of the Clear Law Enforcement for Criminal Alien Removal Act was given the go-ahead to enforce laws of immigration. With the passing of that law, Muslims whether citizens or non-citizens have systematically been detained without proper trial proceedings for great lengths of time. Clearance arrest time was given at around 80 days. The Muslim ban initiated by the Trump administration is a setback to the gains that had been made by previous governments against discrimination leveled at Muslims.

The Trump administration has addressed the problem of immigration by setting up a wall at the Mexican border to prevent illegal immigration of Mexicans into the United States. The rise of crime in the United States has been attributed to the Illegal entry of Latin Americans through the Mexican border. The crimes associated with illegal immigrants are drug trafficking and sex trafficking.

The rise of Islamic terror groups has greatly affected the way the current immigration laws are framed by the United States Congress and the Executive. The rise of Islamic terror groups has led to the revision of laws in the United States to address the perceived porousness of the Borders by the Department of Homeland and government agencies. The issue of Muslims is a global problem. An Islamic group such as ISIS or Islamic State which has caused upheavals in Europe is a jihadist group linked to Islam. In East Africa, Al Shabab is an Islamic terror group that has caused security problems in the countries close to Somalia. With such occurrences, the blame is usually leveled against Muslims. The issues of Islamic terror groups have been handled by revamping security organs in countries affected to curb the threat. Islamic organizations have come out strongly to condemn the acts and delink themselves from terrorist activities.

Permanent Immigration

The permanent immigration route is granted through a green card. Immigrants apply for a green card which is formally known as lawful permanent residence (LPR) status. LPR applicants can be in the United States indefinitely to the point where they get convicted of a removable crime. Application for citizenship takes place five or three years of marriage to a United States citizen. The United States allows for the issuance of green cards annually for fresh applicants or those adjusting their green card status. The share of permanent immigration varies from family-oriented immigration, employment-based immigration, employment-based and the green card lottery.



Family Oriented Immigration

The US Legal System has limited and unlimited categories that its citizens use and individuals with green cards can utilize in petitioning for the entry of a relative into the country. The system has two types of categories (Limited and Unlimited) that citizens in the United States and green card holders can use in petitioning green card holders in bringing relatives to the United States. Citizens are allowed to sponsor spouses, children in their families below 21 years and parents for green card applications. There are no annual numerical limitations for this category of applicants. Other categories of relatives have reserved spots. Sponsorships for citizens can be set aside for adult children and siblings. Those with green cards are at liberty to sponsor their family members in the categories of spouses, and unmarried minors.

Employment Immigration

The Immigration Act of 1990 creates five employment-based categories through which to issue green cards to immigrants. The numerical caps of the Act are still intact along with those of the family preferences of employee immigrants. All employment-based immigrants need to have employers that facilitate their sponsorships for visas. Exceptions exist in cases where the immigrants are either highly skilled or are investors. The 140,000 caps limit the spouses and children of the immigrants that get green cards as a result of employment. The meaning of this cap is that close to 50% of the people that receive green cards go to potential employees in the United States.

Other Routes

Even though the greater chunk of green cards is received through family affiliation or employment, there are other provisions for permanent residence in the United States. The United States immigration system grants permanent residence through diversity visas or by allowing refugees or asylees. The Diversity Visa Program is reserved for countries that send immigrants to the United States. Applications for citizenship through diversity visas in these countries are made through lottery applications which can be submitted annually. The Federal Government of the United States conducts a virtual lottery of qualified applicants to randomly select individuals for green cards once they meet certain criteria.

Immigrants can enter the United States as refugees or asylee after getting the right to a permanent stay in the United States. This right is accorded an individual can show that their current country persecutes them or gives them a reason to fear imminent persecution based on their race, religion, national extraction, membership of a certain group, or possession of political opinion.  The difference between refugee status and asylum is that asylum is granted to individuals already living in the United States while refugee status is reserved for individuals that have been vetted and proved to be worth resettling in the United States. Refugees and that given asylum in the United States can get green cards after a year of settlement.

The Limitations Experienced with Green Card Applications

The capped preference categories in streams such as family and employment impose limits under the law on the portion’s countries can receive annual during green card applications. The Immigration Act of 1990 has a per-country cap that states the maximum portion a country can get from employment-based and family-sponsored visa applications for every year. The uncapped categories do not have limits on the application and admission of citizens into the United States. Numerical and per-country caps set out in the Act on certain categories leads to significant waits for these categories.


Temporary Immigration

The United States issues temporary residence to students, workers and visitors through various visa categories with assigned letters from A to V. Temporary visas are not a direct link to green cards, but they provide a way through which a beneficiary can get a green card. They can do this if they have somebody to sponsor them on a family or employment basis.

Temporary visa categories ranging from B through D allow individuals to enter the United States for purposes of tourism or business. F, J and M visas allow students to be in the United States as college students or as part of cultural exchange programs. Temporary workers also have provisions for temporary visas. The workers can migrate with their spouses and minor children. However, other family members cannot work in the United States. Such workers have to be with their sponsoring employers so that their rights to be in the United States can be preserved. Their prospects can change when they find other employers to sponsor their visa stay.

Temporary work visas occur as follows:

H – 1B Visas: These visas are set aside as specialty occupations visas to allow workers to stay at their stations for up to three years. They can extend this period if they are in line for a green card. The capping for this category is at 85,000 visas. Renewals do not count against the set capping. Employers are required to give details to the Labor Department concerning the intended wages and living conditions of the potential worker.

H – 2A Visas: These visa types are set aside for workers in the agricultural sector poised to stay in the United States for three years. Such visas do not have a numerical limit. The sponsors must show their effort or failed attempts to hire workers from the United States pool. Apart from that, they have to show that they are certified by the Department of Labor and demonstrate their capability in providing housing and specific wages above the minimum.

H – 2B Visas: This category of visas is short-term with provisions for an extension by three years. The eligible workers are those in non-agricultural yet seasonal jobs. Such workers include landscapers, crab pickers, lifeguards, or resort workers. They are capped at 66,000 on an annual basis. Through Congress’s authorization, the Homeland Security Secretary is at liberty to adjust the cap if there is a need for more workers.

L – Visas: These visas allow workers to transfer on an intra-company basis provided one of the branches is in the United States. The visas do not have a numerical limit. Executives are allowed to operate in the United States for seven years, while those with specialized knowledge can go up to five years. The spouses of such visa holders can work in the United States.

O – Visas: These visa holders are those with peculiar capabilities in different fields such as science, art, athletics or business and can go up to three years. There is no numerical limit for such visa holders.

TN – Visas: These visa holders are based on the North American Free Trade Agreement that allows professionals from Mexico and Canada time in the United States. Such workers do not experience caps and their stay period is unlimited.

Court Processes for Immigrants

Federal courts have been at the center of criminal prosecutions against immigrants for immigration violations. Immigrants can be prosecuted under the law for entering or re-entering the United States without express permission through the law. Illegal entry crimes, perpetrated by immigrants are prosecuted in federal courts and become a financial burden to these courts. These court processes usually lead to the separation of family members.

Prosecution of Migrants

Physical presence in the United States is treated as a civil and not criminal offense. An individual caught in such a predicament can be placed in deportation proceedings by the Department of Homeland Security. Staying in the United States beyond the period stated in the Visa can attract removal proceedings. However, entry or re-entry can attract criminal proceedings based on Title 8 of the US Code. This law identified the crimes that can be prosecuted under immigration and nationality. These crimes include: “Illegal Entry”/8 U.S.C. § 1325 and “Illegal Re-Entry”/8 U.S.C. § 1326

“Illegal Entry”/8 U.S.C. § 1326 states that it is a crime to enter the United States without proper authorization. This law captures instances at port points such as avoidance of inspection, offering false testimony at the point of entry. Individuals who enter the United States without the documents required can be treated as misdemeanor offenders and can be locked up to six months in prison, pay a fine or both.

On the other hand, “Illegal Re-Entry”/8 U.S.C. § 1326 states that it is a crime when an individual re-enter the United States without the necessary authorization, attempts to do so, or re-enter after failed attempts (deportation, removal, or denied permission). The perpetrator is treated as a felon and attracts a two-year sentence. An individual with criminal priors can attract a sentence of up to ten years when convicted for a single felon or 20 years if he or she has three misdemeanors (drugs, crimes against a person) and has obtained an aggravated felony conviction.

Violations under 8 U.S.C. §§ 1325 and 1326 are exceedingly common. Prosecutors often add the charge of illegal entry (misdemeanor) when an individual has been charged with illegal re-entry (felony). They do so to obtain a conviction either way. They encourage charged individuals to opt for illegal entry (misdemeanor) which attracts a shorter sentence and is a lesser offense instead of being indicted with illegal re-entry (felony). This prosecutorial practice is known as the flip-flop plea. There are due process concerns when applying this tactic even though it may be well within the prosecutor’s discretion. Usually, the accused waives certain rights that go beyond the right to a trial such as the right to later challenge the conviction. This can make the process move swiftly, though it may impinge on the rights of an accused person.

The Right to Counsel

Immigrants usually have a right to counsel in immigration courts; non-citizens bear this expense. However, since deportation is a civil and not a criminal sanction, immigrants subjected to court proceedings for removal do not enjoy the constitutional protections of the Sixth Amendment. These protections are usually afforded to criminal defendants. On the other hand, the government is usually represented by a trained attorney who argues regardless of whether the immigrant is represented or not. Immigrants are usually detained and denied the right to access the services of counsel from behind bars. Since immigrants do not enjoy the right to counsel, the ability of such defendants to receive a fair hearing is denied.

The Transformation of Immigration Laws since Independence

The Naturalization Act of 1790 is an immigration law which stated that non-white individuals were not eligible for naturalization. The law required that a naturalized individual had to have two years of residence in the country with good morals and be non-white. The 1795 version extended the requirement for residency to five years while 1798 one extended to 14 years. The version of 1802 returned the requirement to five years.

The 1790 law was the first to discriminate against who would receive the rights of citizenship as an immigrant. However, these rights were extended to the People of Color in 1870 after the civil war of liberation. In 1875, the law on immigration introduced several restrictions. The restrictions include bans on criminals seeing entry, people with contagious diseases, human traffickers, polygamists, beggars and individuals seeking to cause anarchy. The restrictions of this period also sought to limit Asian immigrants from entering the country.

The immigration laws of the United States started to drift from Northern and Western Europe to Southern and Eastern Europe during the 1900s. The laws of 1921 and 1924 attempted to restore the immigration patterns that occurred earlier. The laws capped annual immigration by imposing a quota system based on the nationality of an immigrant. This quota system served as an incentive for European countries in the north and west.

Immigration laws that targeted race as a factor to migrate into the United States began to collapse in 1943 with a law that allowed a sizable number of Chinese immigrants into the country. The 1952 law allowed a certain number of visas for other Asian countries. By this time, the race was slowly losing its grip as a factor in immigration laws.

The 1965 immigration law through the Immigration and Nationality Act created a system to reunify families, move skilled immigrants into the United States and move away from the country quota system. This law was the first to limit immigrant entries from countries within the Western Hemisphere. As a result of this law, immigrants from countries in Latin America were restricted to entry. Earlier, their entry was without numerous restrictions. After 1965, immigration has been dominated by countries in Asia and Latin America. The dominance of Europe in immigration has significantly diminished since then.

The focus of immigration laws has since shifted to refugees. As a result of these laws, Indo-Chinese refugees entered the United States from the warzone during the 1970s. The law also stretched as far as including relief for the Chinese, Nicaraguans and Haitians. The law that was passed in 1990 created what is known as “temporary protective status” with the intention of shielding immigrants from regions such as Central America from getting deported. These deportations are prevented by the law in instances where the countries of origin have natural disasters, conflict or other extreme conditions.

The Immigration Reform and Control Act was enacted in 1986 by Congress. The law was a major milestone in the history of immigration since it allowed millions of unauthorized immigrants to be legal citizens provided, they met certain conditions. Through this law, employers with unauthorized immigrants were sanctioned. The laws of 1996, 2002, and 2006 addressed issues to do with terrorism and unauthorized entries with an emphasis on border control. They also addressed the need to prioritize the enforcement of laws and tighten the eligibility of citizenship.

Our Muslim Immigration Attorney Farrukh Nuridinov is a lawyer who has a considerable experience in handling immigration cases and is able to provide advices and guidance for matters such as visa applications, green cards, citizenship and naturalization, deportation issues, and employment for non-citizens. All you should do to settle your immigration matter legally and as fast as possible is to call our telephone at: (+1) 347-763-93-96 or visit our office on 464 Ocean parkway, Brooklyn, NY 11218.

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