U.S. Immigration Law 101: What Every Practitioner Should Know About U.S. Visas

1. The AABANY Immigration & Nationality Law Committee presents: U.S. IMMIGRATION LAW 101:WHAT EVERY PRACTITIONER SHOULD KNOWABOUT U.S. VISAS FOR THEIRINDIVIDUAL AND CORPORATE CLIENTS Presenters: Rio M. Guerrero, The Guerrero Law FirmTsui H. Yee, Yee Durkin & Puri LLP

2. Where to Find the Law The USCIS Website: www.USCIS.govUSCIS Laws, Regulations and Guides

3. Immigration and Nationality Act (INA)From USCIS.gov

4. Code of Federal Regulations (CFR)From: USCIS.gov

5. Practitioner’s Toolbox • INA and CFR • USCIS and other US Government Websites (USDOL, USDOS, EOIR, etc.) • Kurzban’s Immigration Law Sourcebook • American Immigration Lawyers Association (AILA)

6. NIV vs. IV What are Non-immigrant Visas? What are Immigrant Visas / “Green Cards”?

7. NIV: Overview Alphabet Soup of NIVs – “A” through “V” There are no numerical limitations on the number of non-immigrant visas (NIVs) that may be issued or the number of people with NIVs that may enter the U.S. except as to H-1B, H-1C, H-2B, Q-2, S, T and U visas. A foreign national may only hold one NIV at a time. Letter, Weinig, Deputy Asst. Comm., Adjudications, CO 214h-C (Nov. 28, 1989), reprinted in 67 No. 2 Interpreter Releases 39, 53 (Jan. 8, 1990).

8. NIV: Overview (cont’d) Generally, NIVs need a passport valid for 6 months beyond the time of anticipated stay and a valid nonimmigrant visa or border crossing card. INA §212(a)(7)(B)(i), 8 U.S.C. §1182(a)(7)(B)(i), (ii); 22 C.F.R. §41.104. An applicant for admission may also have his or her visa in an invalid passport if it is a multiple entry indefinite visa and s/he is in possession of a valid passport. 22 C.F.R. Sec. 41.112(b)(3) Visa Waiver Program (VWP). INA §217, 8 U.S.C. §1187; 8 C.F.R. §217.1-217.6; 22 C.F.R. §41.2.

9. B-1 Visitor for Business VISAS FOR TEMPORARY VISITORS (B-1/B-2) INA §101(A)(15)(B); 8 U.S.C. §1101(A)(15)(B); 22 C.F.R. §41.31; 9 FAM 41.31 The B classification is NOT meant to be a catch-all classification available to all who wish to come to the United States temporarily for whatever purpose.

10. B-1 Business Visitor (cont’d) Criteria A person entering as a temporary visitor must have: 1. A residence in a foreign country. According to the Foreign Affairs Manual (9 FAM 41.31 N2), the residence must be “actual dwelling place in fact.” INA §101(a)(33), 8 U.S.C. §1101(a)(33). 2. No intention of abandoning foreign residence. 3. Visiting temporarily for business.

11. Visa for Students and Trainees VISAS FOR STUDENTS AND TRAINEES Academic Students—F Visa Criteria—Statutes/Regulations—INA §101(a)(15)(F), 8 U.S.C. §1101(a)(15)(F); 8 C.F.R. §214.2(f), 9 FAM 41.61; 67 Fed. Reg. 76256 (Dec. 11, 2002). The applicant must meet the following criteria for F-1 Status: 1. Applicant has foreign residence with no intention of abandoning it. 2. Applicant is a bona fide student qualified to pursue a full course of study. 3. Applicant seeks to enter the U.S. as a student “temporarily and solely for the purpose of pursuing such a course of study at an established institution of learning or other recognized place of study in the United States.” 4. Applicant will study only at an institution particularly designated by him and approved by the AG in compliance with the SEVIS program. 8 C.F.R. §214.2(f)(1)(i)(A).

12. F Visa (cont’d) Employment There is no employment 1st academic year (i.e., 9 months) except for on-campus work, which can begin as soon as the student is admitted in F-1 status. 8 C.F.R. §214.2(f)(9)(ii). BUT … Practical Training is available: For a full-time student that has at least completed one academic year, which is normally 8-9 consecutive months (unless a graduate student in a special program); It is related to a course of study; It is employment for the purpose of practical training; and It is not for English language training.

13. F Visa (cont’d) There are two types of practical training: (1) Curricular Practical Training, 8 C.F.R. §214.2(f)(10)(i): This type of training is defined to be alternate work/study, internship, cooperative education or any other type of required internship or practicum. If student obtained one year or more of full time curriculum practical training then post-completion training is not available. Curricular practical training may be granted on a “part-time” basis (no more than 20 hours/week) or a “full-time” basis. (2) Optional Practical Training, 8 C.F.R. §214.2(f)(10)(ii): Optional practical training may be exercised in one of four circumstances: a) During student’s annual vacation or otherwise when school not in session; b) While school is in session as long as it does not exceed 20 hours/week; c) After completion of all course requirements (excluding thesis or equivalent) for bachelor’s, master’s or doctoral degree program; and d) After completion of the course of study.

14. H-3 Trainees • Temporary worker coming to US for training or instruction other than to receive graduate medical training. Not intended for productive employment is US. • Criteria set forth in 8 CFR Sec. 214.2 (h)(7)(ii)(A): 1. proposed training not available in home country; 2. no placement where US workers are regularly employed; 3. no productive employment, unless it is incidental to training; and 4. training will benefit the beneficiary in pursuing a career outside the US. • In limited circumstances, after training is complete, an H-3 can change status to another NIV – such as an H-1B visa.

15. VISAS FOR BUSINESS PERSONS:H, O, L, and E Visas H-1B VisasINA §101(a)(15)(H)(i)(b), 8 U.S.C. §1101(a)(15)(H)(i)(b). The H-1B classification allows professionals to work in the U.S., on a temporary basis, in a “specialty occupation.” It is suitable and ideal for engineers, professors, researchers, computer programmers and other professionals. The H-1B category is designed to attract highly skilled professionals to work in the U.S. on a temporary basis. Specialty Occupation is defined under INA §214(i)(1), 8 U.S.C. §1184(i)(1), 8 C.F.R. §214.2(h)(4)(ii), as requiring: 1. Theoretical and practical application of a body of highly specialized knowledge; and 2. Attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the U.S.

16. H-1B Visa (cont’d) Experience Alone May Be Sufficient. 8 C.F.R. §214.2(h)(4)(iii)(C)(4)   Portability – A person in H-1B status may accept new employment upon the filing of a new petition by the prospective employer if: (1) s/he was lawfully admitted; (2) the new petition is “nonfrivolous”; (3) the new petition was filed before the date of expiration of the period of stay authorized by the AG; and (4) subsequent to such lawful admission the H- 1B beneficiary has not been employed without authorization before the filing of such petition. INA §§214(n)(1) and (n)(2)(A).

17. A brief word on TN Visas … Professionals—TNs. TN status is for Canadian and Mexican persons engaged in activities at a professional level. This category is designated “TN,” is similar to H-1B except there is no statutory limitation on stay such as exists for Hs and Ls, and it generally covers a broader range of job categories. However, TNs unlike H-1Bs are subject to INA §214(b) and must prove their intent not to immigrate. 9 FAM 41.59 N10. “Activities at a Professional Level” under NAFTA is defined as requiring “at least a baccalaureate degree or appropriate credentials demonstrating status as a professional.” 8 C.F.R. §214.6. The regulations specify various categories of professions that are covered.

18. “O” Visa: Extraordinary Ability O-1—8 C.F.R. §214.2(o)(1)(i): O-1A. Person who “has extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim.” 8 C.F.R. §214.2(o)(1)(ii)(A)(1). O-1B. If in motion picture or TV production, the person must have “a demonstrated record of extraordinary achievement.” Person needs to demonstrate that his/her achievements have been recognized in the field “through extensive documentation.” 8 C.F.R. §214.2(o)(1)(ii)(A)(2).

19. “O” Visas (cont’d) O-2—8 C.F.R. §214.2(o)(1)(ii)(B): The O-2 is only for person accompanying and assisting an O-1 artist or athlete in the artistic or athletic performance for a specific event or events so long as: (1) S/he is an integral part of such actual performance. (2) S/he has critical skills and experience with the O-1 that are not of a general nature and which cannot be performed by other individuals. O-3—8 C.F.R. §214.2(o)(6)(iv): Includes spouse and children accompanying and following to join as O-3s.

20. “L” Visa: Transfer Employees L Visas. INA §101(a)(15)(L), 8 U.S.C. §1101(a)(l5)(L), 8 C.F.R. §214.2(l); 22 C.F.R. §41.54. Foreign national applying for an L visa is seeking to enter the U.S. temporarily to continue to work for same employer or its affiliate or subsidiary. The employee is not required to perform full-time services in the U.S. but must dedicate a significant portion of his or her time on a regular and systematic basis. O.I. §214.2(l)(5)(ii)(B). The L-1 recipient must continue to work in the capacity that is managerial, executive or involves specialized knowledge. I.A.90 §206(a). Dual intent is applicable for L-1. Thus, a petition for an immigrant visa may be pending while person maintains L- 1 status.

21. “L” Visas (cont’d) The foreign national must be employed continuously abroad for 1 of the past 3 years by parent, branch, affiliate or subsidiary of U.S. company preceding his application for admission. The Immigration Act of 1990 eliminated the “immediately preceding” requirement, so that a person may now be transferred into the U.S. if s/he worked for the entity abroad continuously for one year at any time within the preceding three years. In the case of a person being transferred where the importing employer has filed a blanket L, the transferee need only work for the company abroad for 6 months. INA §214(c)(2)(A).

22. “E” Visa: Treaty Trader/Investor E Visas. INA §101(a)(15)(E), 8 U.S.C. §1101(a)(l5)(E); 8 C.F.R. §214.2(e). A person is entering U.S. (for indefinite time) based upon treaty of friendship, commerce and navigation or Bilateral Investment Treaty or other arrangements (e.g.; NAFTA-Canada and Mexico) between U.S. and country of which s/he is a national.

23. “E” Visas (cont’d) A person is entering: (1) Solely to carry on substantial trade which is international in scope principally between U.S. and the foreign state of which s/he is a national (E-1 treaty trader), or (2) Solely to develop and direct the operations of an enterprise in which the foreign national has invested, or is actively in the process of investing a substantial amount of capital in a bona fide enterprise (E-2 treaty investor). Some countries may have only E-1 treaties or E-2 treaties. Some have both. (3) As a key employee from treaty country of either E-1 or E-2, including executives and supervisors or persons whose services are “essential to the efficient operation of the enterprise.” 8 C.F.R. §214.2(e)(3), or (4) As a principal employer who is: (a) a person with nationality of treaty country whether in or outside U.S.; or (b) an enterprise or organization that is 50% or more owned by treaty nationals, or (5) A dependent of one of the above referenced persons.

24. E-1: Considerations E-1 – INA §101(a)(15)(E)(i), 8 U.S.C. §1101(a)(15)(E)(i). Substantial trade: Trade under 8 C.F.R. §214.2(e)(9), 22 C.F.R. §41.51(h) and (i), 9 FAM 41.51 N4, is defined as “the existing international exchange of items of trade for consideration between the U.S. and the treaty country.” Domestic trade is not counted in determining trade and therefore not counted in determining what is substantial trade. Trade includes export or import. For example, if equipment purchase involves transfer of component parts for assembly in U.S. it is trade. The Immigration Act of 1990 defined trade to include trade in services and technology.

25. E-2: Considerations E-2—INA §101(a)(15)(E)(ii), 8 U.S.C. §1101(a)(15)(E)(ii); 22 C.F.R. §41.51. The nationality of Investment Enterprise is the same as E-l—50% sufficient (joint venture). 22 C.F.R. §41.51(g). Investor must have invested or is actively in the process of investing. 22 C.F.R. §41.51(b)(1). The funds must be in employer’s possession/control. Funds must be “at risk.” (e.g., must be unsecured loan or collateral for loan must be from personal assets). The capital must be subjected to partial or total loss if investment fortunes reverse. It must be “the investor’s unsecured personal business capital or capital secured by personal assets.” 8 C.F.R. §214.2(e)(12). The statute does not require that the source of the funds be outside the U.S.

26. U.S. Dept. of State Monthly Visa Bulletinhttp://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

27. Example of DOS Monthly Visa Bulletin (November 2009)

28. Example of DOS Monthly Visa Bulletin (November 2009)

29. Example of DOS Monthly Visa Bulletin (November 2009)

30. Dual Intent Doctrine Even though a nonimmigrant must demonstrate genuinely that his/her intent is to remain in the U.S. temporarily, s/he may have both a short term intent to leave and a long term intent to remain permanently. This is known as the doctrine of dual intent. See Matter of H-R-, 7 I&N Dec. 651, 654 (R.C. 1958). Recognized only for E-1, E-2, H-1 and L NIV holders.

31. Employment-Based Immigrant Visas The employment-based (EB) immigrant visa categories (IV) are organized into preferences. First Preference (EB-1) INA 203(b)(1)- Priority Workers This category is divided into 3 subcategories (a) individuals with extraordinary ability, (b) outstanding professors and researchers, or (c) multinational executives and managers Second Preference (EB-2) INA 203(b)(2)- Is divided into 2 subcategories: (a) members of the profession holding advanced degrees, or (b) individuals of exceptional ability

32. EB IV Preference Categories Third Preference (EB-3) INA 203(b)(3)- professionals skilled workers, and other workers Fourth Preference (EB-4) INA 203(b)(4) - This category is for “special immigrant” visas. The categories encompass a variety of special immigrants including certain religious workers, Amerasian children, certain employees of U.S. foreign service posts aboard, and certain foreign language broadcasters working for Radio Free Europe or Radio Free Asia to name a few. Fifth Preference (EB-5) INA 203(b)(5) - Investor category An individual who invests a minimum for one million dollars in a new or existing business; or a minimum of $500,000 if the investment is in a targeted employment area, that is, an area that has experienced unemployment of at least 150 percent of the national average or invests in a rural area with a population of less than 20,000.

33. PERM Labor Certification (Labor Cert) INA Sec. 212(a)(5)(A) & (p); 20 CFR Part 656 Most foreign nationals who would like their employers to sponsor them for a green card in the United States must first get a labor certification from the Department of Labor (DOL). A labor certification is often a prerequisite for obtaining employment-based permanent residence. A labor certification is the determination by the Department of Labor (DOL) that there are no U.S. workers able, willing, qualified, and available for the position for which a labor certification is being sought, and that the employment of the foreign national will not adversely impact the wages and working conditions of U.S. workers. For the ETA-9089 application to be approved, the employer is required to undergo a process of recruitment to prove to the DOL that there are no U.S. workers available.

34. Exceptions to Labor Cert Prerequisite Generally, there are 2 exceptions to the labor certification requirement: (1) Types of employment listed under the Department of Labor’s Schedule “A” found in 20 CFR 656.10. Specifically, registered nurses and physical therapists. (2) If the foreign national will serve the national interest, labor certifications may be waived. INA 203 (B)(2)(B)(i).

35. National Interest Waivers National Interest Exemption from Job Offer and Labor Certification: The national interest waiver is a waiver of the job offer requirement for individual who wish to immigrate to the U.S. in the second preference category who are members of the profession holding advanced degrees or individual of exceptional ability in the arts, sciences, or business. Neither the INA nor the regulations define “national interest”, but a waiver request requires a showing “significantly above that for prospective national benefit.” The number of national interest waiver cases approved have been greatly limited following the August 7, 1998 precedent decision by the Administrative Appeals Office (AAO) in Matter of New York State Department of Transportation (NYSDOT), Int. Dec.3363 (Comm’r 1998).

36. Ethical Issues Commonly Faced by Business Immigration Law Attorneys ABA Model Rules of Professional Conduct – Client-Lawyer Relationship Rule 1.7 Conflict of Interest: Current Clients (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) The representation of one client will be directly adverse to another client; or (2) There is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

37. Ethics Rule 1.7 Conflict of Interest: Current Clients (continued) (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) The representation is not prohibited by law; (3) The representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) Each affected client gives informed consent, confirmed in writing. Rule 1.6 Confidentiality of Information (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

38. Ethics Rule 1.4 Communication (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. • (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

39. Ethics NY Rules of Professional Conduct (Effective April 1, 2009) http://www.nysba.org/Content/NavigationMenu/ForAttorneys/ ProfessionalStandardsforAttorneys/NYRulesofProfessionalConduct4109.pdf Essentially, the NYS Rules adopted the ABA Guidelines.

40. Hot Ethics Topics in PERM Recruitment: Limit on Attorney involvement. 20 CFR 656.10(b)(2) Prohibits attorney from interviewing, considering and/or determining whether there are qualified U.S workers for the job offered to the foreign national. Thus, to what extent may an employer seeks its attorneys’ advice/ assistance to review the qualifications of a U.S worker responding to PERM recruitment? Fragomen v.Chao. (D.D.C Civ. No. 08-1387(RMU)) Stipulation and Order, AILA InfoNet Doc. No. 08110330, Nov 3, 2008 clarifies that attorneys may provide advice re all “legal questions,” including the provision of “advice concerning requirements relating to whether an applicant is a qualified, willing, able and available U.S worker.” (p.6) However , the Fragomen Stipulation does reaffirm the DOL position that the employer must review applications first and must make the ultimate eligibility assessment.

41. Hot Ethics Topics in PERM ABA Model Rules of Professional Conduct – Maintaining The Integrity Of The Profession Rule 8.4 Misconduct It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

42. Hot Ethics Topics in PERM Payment of Legal Fees and Recruitment costs: 20 CFR 656.11 (b) Effective July 16, 2007, regulatory prohibition on employers “seeking or receiving payment of any kind for any activity related to or obtaining permanent labor certificate.” Invalidation of prior reimbursement agreements. Applies to Schedule A, Groups I and II (ETA-9089 component ) DOL FAQs also confirms that ban does not extend to USCIS processing (I-140, and I-485).

43. Hot Ethics Topics in PERM Minimum Requirements 20 CFR 656 17 (i) (1) and (2). Must use employer’s actual minimum requirements. Employer is certifying that it has not hired workers with less training or experience in the job opportunity. Are others’ applications pending for similar positions, or have they been recently certified? Fraud, or willful misrepresentative 20 CFR 656. 31. Potential application to attorneys.

44. Our program will resume promptly in fifteen minutes.

45. U.S. IMMIGRATION LAW 101: • Family-Based Applications for Lawful Permanent Residence

46. Immigrant vs. Nonimmigrant Visas • All visas are divided into 2 categories: immigrant and non-immigrant visas. Common non-immigrant visas are student visas and tourist visas. These visas do not lead to lawful permanent immigrant status.

47. Family-Based Non-Immigrant Visas • Fiancé (e) Visas – K-1 (INA § 101(a)(15)(K)(i), 8 U.S.C. § 1101(a)(15)(K)(i): • For foreign nationals who wish to enter US to marry a USC • Must marry within 90 days • Cannot change status to another nonimmigrant visa category, or adjust status on any other grounds than marriage to the petitioner • Minor children get K-2 status • Requirements: • Petitioner files I-129F petition with USCIS • K-1 fiancé (e) issued at US embassy abroad • Must have personally met at least once in the 2 yrs before petition filed • Marriage must take place within 3 mos of arrival; otherwise beneficiary must depart from U.S.

48. K-1 Visas cont’d. • If marriage is completed within 90 days of entry, beneficiary can apply for adjustment of status to lawful permanent residence; no I-130 petition for alien relative required • K-1 visa holder is given “conditional residence” for period of 2 years, after which s/he must remove conditions on residence by filing I-751 petition

49. K-3 /K-4 Visas • K-3/K-4 Visas - (INA § 101(a)(15)(K)(ii), 8 U.S.C. § 1101(a)(15)(K)(ii): : • For spouses & minor children of USCs • Foreign national & USC spouse already married abroad • Allows FN to enter & remain in US to await processing of application for permanent residence • Unmarried children get K-4 status • Procedure: • USC must first file an I-130 relative petition • USC files I-129F petition with evidence that I-130 filed Note – if I-130 petition is approved & received at consular post prior to approval of the K-3 petition, in general the consulate will not issue the K-3 visa but simply go forward and adjudicate the immigrant visa

50. Lawful Permanent Residency • Definition of “Lawful Permanent Resident” – INA § 101(a)(20), 8 U.S.C. § 1101(a)(20)(or immigrant) – “Status of being lawfully accorded the privilege of permanently residing in the U.S. as an immigrant.” • i.e. “immigrant” or “green card holder” • Not a US citizen or a nonimmigrant visa holder such as a visitor, student, H-1B employee, etc. • Other immigration statuses distinguished: refugees / asylees; TPS (Temporary Protected Status) • LPRs do not need employment authorization to work & eligible for SSN’s without any restriction on employment • LPRs may travel in & out of US (subject to physical presence requirements) • LPRs status may be lost, deemed abandoned, or rescinded/revoked • Finally, LPRs can be removable (deportable)