Superhero Immigration – Give me your superhumans, your technological geniuses, your mutated masses yearning to fight crime

by on Oct.01, 2009, under Constitutional Law, Federal and State Regulations

“America has constantly drawn strength and spirit from wave after wave of immigrants…” and no immigrants provide this country with more strength or spirit than transplanted superheroes. Whether they come from another country, another planet, or even another plane of existence, the immigration laws of the United States create a series of formidable legal challenges imposing to even the most powerful beings.

Superhero adoption

Ma and Pa Kent were driving home one night when an object falling through the sky crashed into Shuster’s Field. The couple investigated the crash and discovered a baby whom they eventually named Clark and raised as their own. The Kents originally took young Clark to an orphanage but later decided to adopt him. When they returned to the orphanage they found the administrators more than happy to approve the adoption as the young boy was destroying everything in sight with his super strength.

Ordinarily adopting an American child is a relatively simple procedure assuming the adopting parents meet minimum eligibility requirements. Clark (later known as Superman) was born Kal-El. Native to Krypton, Kal-El was placed into a rocket by his parents and sent to Earth moments before the planet was destroyed by seismic activity. To adopt a foreign child, United States adopters must comply both with domestic and foreign regulations. These regulations vary from income requirements to strict health and well-being criteria. For example, in Korea, adopters cannot weigh more than 30% over the normal weight for their height when working with certain adoption agencies. It is difficult to imagine what requirements would have been imposed on the Kents by Kryptonian law but thankfully for them, and for Clark, no one consulted the Kryptonian data banks contained in the spacecraft before the adoption.

Superhero Marriages

While the original comic story of Superman depicted at least some form of an adoption process taking place other versions of the story have either omitted the events or implied some type of cover-up2. Whether or not Clark was properly adopted by Martha and Jonathan became a moot point in a number of Superman storylines after Clark’s marriage to Lois, a U.S. citizen.

One of the most common ways for foreigners to gain citizenship status is to marry a citizen. This process is not automatic, however, after a legal marriage (either abroad or within this country) an alien must apply for a green card. Once the card is issued the residency status is deemed temporary and revoked after two years unless the applicant applies to remove the restrictions.

Clark/Superman certainly could have filed for a temporary residence card based on his marriage to Lois, however, the government reserves the right to investigate the legitimacy of resident–alien unions. It is not unheard of to have an Immigration Officer randomly checking in on applicant marriages, asking questions about the relationship and snooping around the residence. Clark had enough trouble making up excuses for gaps in his past and reasons for leaving unexpectedly, I can’t imagine how well he would have faired in an official investigation of his relationship.

Superhero Visas

While most superheroes fight crime locally many travel across the world in the pursuit of justice. Short trips into the United States generally do not require a visa. If Fire, a Brazilian hero, or Wolverine, a native Canadian, enter U.S. territory briefly to capture a criminal Immigration is probably not concerned. The following activities, however, do require a work visa:

  • Running a business.
  • “Gainful employment”.
  • Payment by an organization within the US.
  • Participating as a professional in entertainment or sporting events.
  • Work Visas
    As I discussed in a previous post, members of superhero teams are more employee than independent contractor and therefore would have to apply for a work visa to join teams such as the X-Men or Justice League. The most recent physical locations for the Justice League, to which Fire is a member, are a satellite in geosynchronous orbit and on the moon. Also discussed previously, objects in space are governed by the laws of the country from which they were launched. Because the Justice League headquarters were launched from the United States, Fire would have to apply for a work visa to participate in the League.

    School Visas
    The presumption when all visa applications are reviewed is that the applicant is a potential illegal alien who will stay beyond the terms of their visa. Because of that presumption applications for work visas are heavily scrutinized when there is little evidence of an applicant having strong ties to their country of origin that would increase the likelihood of their return. Wolverine for example, who was living in the wilderness of Canada before coming to the United States, with no living relatives other than an estranged son, would be seen as a high risk applicant for a work visa to join the X-Men. Thankfully for Wolverine, the X-Men operate out of the Xavier School for Gifted Children and he could also apply for residency under an educational visa, which are easier to obtain based on the limited duration of most educational programs.

    Superhero Asylum

    Some superheroes are in this country, or on this planet, not by their own choosing. In such situations it might be possible to apply for residency status through a petition for asylum as a refugee.

    The United Nations Convention Relating to the Status of Refugees defines a refugee as:

    A person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it..

    The Silver Surfer agreed to be Galactus’ Herald in exchange for the protection of his home world. This job entailed finding uninhabited worlds for Galactus to devour. When Galactus became intent on consuming Earth, the Surfer, working with the Fantastic Four, tried to stop him, and succeeded, but was bound by Galactus to remain on Earth. Because of this turn of events the Silver Surfer may be able to qualify for refugee status. Galactus exerts power over the Surfer, and most other beings, because of his inability to wield the Power Cosmic, making him an inferior class of being in the eyes of Galactus. The Power Cosmic also prevents the Surfer from leaving Earth and returning to his home world.

    Deportation

    The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)3, granted the U.S. much broader powers to deport alien residents for violations of the law. Where previously deportation was reserved for illegal acts carrying penalties of more than 5 years in jail, IIRIRA expanded the list of deportable offenses to even minor infractions such as shoplifting. Also under IIRIRA, residents who gained citizenship through marriage are also susceptible to deportation for committing crimes. Many of the potential liability issues discussed in previous posts of this blog would subject alien superhero residents to possible deportation.

    IN THE NEXT EXCITING INSTALLMENT
    Next week we take a look at the effect of immortality on laws drafted with the mortality of humans in mind.

    References

    1 – President Clinton, commencement address, Portland State University (1998)

    2 – The Warner Brothers television series Smallville alludes to the Kents using a sham adoption agency set up for the sole purpose of adopting out Clark. When Lex Luther and others looked into Clark’s history a number of inconsistencies in the process and paper trail emerged.

    3 – Pub.L. 104-208, Div. C, 110 Stat. 3009-546.

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