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THE I-140 BOOK Editor: Herbert A. Weiss

Contributors: Brian S. Weiss, Kristen Quan Hammill, Prakash Khatri, Faye M. Kolly, Howard L. Kushner, Dorothee B. Mitchell, and Sherry Neal EDITOR Herbert A. Weiss is a partner at Garganigo, Goldsmith & Weiss, based in New York and has been serving the immigrant community for thirty five years. He has practiced immigration law since his admission to the bar. He has been a member of the firm since 1979. He received a Bachelor of Arts from Columbia University (1973) and a Juris Doctor from Hofstra University School of Law (1976). Mr. Weiss has been an active member of the American Immigration Lawyers Association (AILA), serving as treasurer, secretary, vice-chairman and chairman of its 500 member New York Chapter. Mr. Weiss has also been a member of several key national and local AILA committees, including Department of Labor Liaison, INS Regional Service Center Liaison, Legal Referral, and Membership. He has served for many years as a mentor to AILA attorneys on employment-based immigration law. Also a member of the American Bar Association, he has lectured at academic and professional seminars and has published many articles on employment-based immigration law in professional journals.

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Table Of Contents

Acknowledgments

Part I. I-140 Introduction

Chapter One Editor’s Introduction

Chapter Two Basic Important Employment-Based Concepts by Kristen Quan

Hammill

Part II. I-140 by Herbert A. Weiss

Chapter One Basic Overview of the I-140 EBIV Process

Chapter Two The Scope of Agency Authority

Chapter Three The Job Offer Requirement

Chapter Four The Immigration Act of 1990

Chapter Five The EB-11 Extraordinary Ability

Chapter Six The EB-12 Outstanding Professor and Researcher

Chapter Seven The EB-13 Multinational Manager and Executive

Chapter Eight The EB-2 Advanced Degree Professional And Person Of

Exceptional Merit And Ability

Chapter Nine The EB-3 Skilled Worker, Professional, And Other Worker

Chapter Nine The I-140 Form

Chapter Ten The Standard of Evidence

Chapter Eleven Priority Dates

Chapter Twelve Filing Multiple Petitions

Chapter Thirteen Successors in Interest

Chapter Fourteen Ability Of Prospective Employer to Pay Wage

Chapter Fifteen Portability

Chapter Sixteen Revocation, Invalidation and the Section 204(c) Bar

Chapter Seventeen Withdrawals and Appeals/Motions

Chapter Eighteen A Checklist For Putting Together I-140s (And Some Do’s And

Don’ts)

Part III. Special I-140 Topics

Chapter One Step by Step For Schedule A Applications by Sherry Neal

Chapter Two Aliens of Exceptional Ability in the Performing Arts by Howard L.

Kushner

Chapter Three Derivative Beneficiaries of Employment Based Immigrant

Petitions and the Child Status Protection Act (CSPA) by Dorothee

Mitchell and Faye M. Kolly

Chapter Four The Future of The I-140 (Employment-Based Immigration)

Process by Prakash Khatri

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THE

IMMIGRATIONCOMPLIANCE

BOOK2009-2010 Edition

Editors: Angelo Paparelli, L. Batya Schwartz Ehrens & Dan Siciliano

Sections: Understanding I-9 Concepts; I-9 Advanced Topics; Employer E-Verify Considerations; E-Verify Advanced Topics; DHS EnforcementThrough ICE Raids And Audits; Specialty Topics

Sample Proposed I-9 Policy and Procedures; Sample Form I-9 VerificationProcedures-Guidelines For Employers; Sample Checklist For I-9 AuditAnd Correction Guidelines

Critical Resource Materials: Selected Statutory Provisions, USCISMemos, Executive Orders, USCIS Publications On I-9s & E-Verify, USCIS Press Releases / Q&As / FAQs, etc.

Resource Materials On CD-ROM: 100+ Relevant Cases From OCAHO,BIA, Federal District & Circuit Courts; Important Statutes, Regulations,Forms, Weblinks, etc.

750+ Pages, 850+ Footnotes, 33 Authors

THEIMMIGRATION COMPLIANCEBOOK

2009-2010 Edition

I9_Book_Cover.qxp 5/18/2009 12:54 PM Page 1

THE IMMIGRATION COMPLIANCE BOOK Editors: Angelo A. Paparelli, L. Batya Schwartz Ehrens, & Dan Siciliano

Contributors: Jason Burritt, Francis E. Chin, Philip C. Curtis, Laura Danielson, John Fay, Bonnie K. Gibson, Richard Gump, Douglas D. Hauer, Susanne C. Heubel, Loan Huynh, Jay Jorgensen, Susan Kelly, Adam Ketcher, Cynthia Lange, Kevin Lashus,

Robert F. Loughran, Kristin Major, Johanna Marmon, Cyrus D. Mehta, Maggie Murphy, Michael Patrick, Julie Pearl, Justin A. Rymer, Olivia M. Sanson, Lynn O. Tarran, Vinh C.

Trieu, Steve Trow, Greg Wald, Matthew Warren, Michael J. Wildes

EDITORS Angelo A. Paparelli is a partner of Seyfarth Shaw LLP. Mr. Paparelli, with a bicoastal practice in Southern California and New York City, is known for providing creative solutions to complex and straightforward immigration law problems, especially involving mergers and acquisitions, labor certifications and the H-1B visa category. His practice areas include legislative advocacy; employer compliance audits and investigations; U.S. and foreign work visas and permanent residence for executives, managers, scientists, scholars, investors, professionals, students and visitors; immigration messaging and speech-writing and the federal courts. L. Batya Schwartz Ehrens is an associate specializing in business immigration at Pollack, Pollack, Isaac, & DeCicco, LLP in New York, NY. She advises large and small corporations on visa strategies and immigration compliance. She also represents investors, executives, and artists seeking green cards and visas. Ms. Schwartz Ehrens has authored articles and spoken at financial institutions on the topics of employment-based immigration options, E-Verify, and I-9 Compliance. Dan Siciliano is the Associate Dean for Executive Education and Programs and a Senior Lecturer at Stanford Law School. He is also co-founder of LawLogix Group, Inc. - a global software technology company recently named to the Inc. 500 and twice ranked as one of the Top 100 fastest growing private software companies in the United States.


Table of Contents I. Editors’ Introduction II. Understanding I-9 Concepts

a. The Evolving Challenge for Employers – From I-9s to E-Verify? by Michael D. Patrick and Justin Rymer b. Changing Trends in I-9 Best Practice by Richard A. Gump, Jr

III. I-9 Advanced Topics

a. False Statements, False Documents, and False Claims of Citizenship to Obtain Employment in the United States by Adam Ketcher and Cyrus D. Mehta b. Aramark v. SEIU and the Evolution of Constructive Knowledge in Relation.to the DHS Social Security No-Match Rule by Gregory A. Wald c. What about the I-9: I-9 and E-Verify Compliance in the Context of Pending Adjustment of Status Applications and Travel on Advance Parole by Susanne C. Heubel and Olivia M. Sanson d. Dangerous Self-Help: The Risks of Losing the Attorney-Client Privilege During Form I-9 Audits by Robert F. Loughran, Susan Kelly, Kevin Lashus, Maggie Murphy and Vinh C. Trieu

IV. Employer E-Verify Considerations

a. Employment Law Issues in an E-Verify World by Bonnie K. Gibson b. Should Employers Sign Up for E-Verify? by Steve Trow and Lynn O. Tarran c. Using Software for Electronic I-9s and E-Verify by John Fay and Julie Pearl d. E-Verify Everyday: Employers Weigh In by Johanna Marmon e. Pre-Employment Inquiries Concerning Immigration Status: When Concern for Immigration Law Compliance can Bring Employment Law Problems by Kristin Major and Dan Siciliano

V. E-Verify Advanced Topics

a. E-Verify Considerations for Successor Employers Following Mergers and Acquisitions

by Douglas D. Hauer, Francis E. Chin & Philip C. Curtis b. Don’t Take it Personally: Why Everyone Needs to Understand E-Verify for Federal Contractors by L. Batya Schwartz Ehrens and Angelo A. Paparelli c. Demystifying Federal Contractor Obligations by L. Batya Schwartz Ehrens and Angelo A. Paparelli

VI. DHS Enforcement through ICE Raids and Audits

a. Don’t Wait for ICE to Knock on the Door: A Practical Guide to Preparing Employers for I-9 Compliance/Audits and Worksite Investigations (With Supplements: Sample Proposed I-9 Policy and Procedures, Form I-9

Verification Procedures-Guidelines For Employers, and Checklist For I-9 Audit And Correction Guidelines) by Loan T. Huynh and Laura J. Danielson b. Defending Companies and their Management Against Criminal Immigration Sanctions: The Centrality of Knowledge by Jay T. Jorgensen and Matthew J. Warren

VII. Specialty Topics

a. Preemption of State Immigration Laws After CPLC – What does the Future Hold? by Cynthia Lange and Justin Rymer b. A New Remedy in ICE’s Arsenal: Debarment by Michael J. Wildes c. Social Security “No-Match” Letters: A Guide to Best Practices by Jason Burritt and Angelo A. Paparelli

VIII. Resource Materials

a. Sections 402-405 of IIRIRA b. Memorandum for the Heads of Executive Departments and Agencies from Rahm Emanuel, (January 20, 2008) c. Amendment to Executive Order 12989 requiring federal contractors to use E-Verify - Executive Order 13465 Economy and Efficiency in Government Procurement through Compliance with Certain Immigration and Nationality Act Provisions and the Use of an Electronic Employment Eligibility Verification System (June 6, 2008) d. Executive Order 12989 (February 13, 1996) e. Final Rule mandating use of E-Verify by all Federal Contractors- 73 Fed. Reg.

67651, Nov. 14, 2008 (to be codified at 48 C.F.R. pts. 2, 22, and 52) f. Delay of Applicability of FAR until February 20, 2009 - 74 Fed. Reg. 1937 (January 14, 2009). Editor’s note: The applicability of FAR was

delayed twice to May 20, 2009 and June 20, 2009 g. US Chamber of Commerce announcement that litigants agreed to extend applicability of FAR to May 21, 2009 - Federal Government Again Delays Mandatory E-Verify Use for Government Contractors: Chamber Deal Postpones Rule for a Second Time h. Adjudicator’s Field Manual, AFM 23.2 i. Adjudicator’s Field Manual, AFM 31.4 j. Memorandum from Paul Virtue, Act'g Exec. Assoc. Comm'r, Programs, to Field Offices, File No. HQ 70/6.2.5, 70/6.2.9, 70/6.2612, 70/23.1, 120/17.2, Considerations for Adjustment of Status (Aug. 5, 1997) k. Memorandum by Robert L. Bach, INS Exec. Assoc. Comm'r, Office of Policy and Planning, AFM Update: Dual Intent Follow-up Guidance: H-1 and L-1; Pending Applications for Adjustment of Status, validity of nonimmigrant status, and the elimination of the advance parole requirement, File No. HQADJ 70/ 2.8.6, 2.8.12, 10.18 (March 16, 2000) l. Memorandum by Michael D. Cronin, INS Act'g Ass't Comm'r, Office of Programs, AFM Update: Revision of March 14, 2000 Dual Intent Memorandum, File No. HQADJ 70/ 2.8.6, 2.8.12, 10.18 (Amended Version), AD 00-03 (May 25, 2000) m. Memorandum by Michael L. Aytes, USCIS Assoc. Dir., Domestic Operations, Eligibility of Arriving Aliens in Removal Proceedings to Apply for Adjustment of Status and Jurisdiction to Adjudicate Applications for Adjustment of Status; Revisions to Adjudicator's Field Manual (AFM) Chapter 23.2(b), File No. HQDOMO 70/23.1 (January 12, 2007) n. Handbook for Employers, M-274 (3553KB PDF) , Instructions For Completing Form I-9, USCIS (Rev. 04/03/09)o. How Do I Complete Form I-9, Employment Eligibility Verification?, USCIS, (August 2008) p. E-Verify User Manual For Employers (March 2009) q. E-Verify: Quick Reference Guide for Employers (March 2009) r. E-Verify User Manual For Designated Agents (March 2009) s. E-Verify: Quick Reference Guide For Designated Agents (March 2009) t. E-Verify MOU for Employer [Revision Date 10/29/08] u. Federal Contractors Required to Use E-Verify System, USCIS Press Release, 11/13/08 v. 100,000 Employers Use E-Verify Program, USCIS Press Release, 1/08/09 w. E-Verify Strengthening the Employment Eligibility Document Review Process for the Nation’s Employers, USCIS Press Release, 01/08/2009 x. USCIS Delays Rule Changing List of Documents Acceptable to Verify Employment Eligibility - Reopens Public Comment Period for 30 days, USCIS Press Release, 1/30/09 y. USCIS Adds Passport Data in E-Verify Process for Foreign-Born Citizens -Enhancement Reducing Tentative Nonconfirmations, USCIS Press Release, 03/04/09 z. Questions and Answers: Revised Form I-9, Employment Eligibility

Verification, USCIS Press Release, 4/3/09 aa. Frequently Asked Questions: Federal Contractors and E-Verify, USCIS Press Release, 4/17/09 bb. 9 Foreign Affairs Manual 40.63 cc. 9 Foreign Affairs Manual 40.63 Notes dd. 9 Foreign Affairs Manual 41.11 ee. 9 Foreign Affairs Manual 41.11 Notes ff. STEM Designated Degree Programs List, ICE, 9/25/08 gg. Office of Special Counsel for Immigration-Related Unfair Employment Practices “Look at the Facts. Not at the Faces”

IX. CD-ROM Resource Materials OCAHO Cases

• Decasez-Martinez v. Tyson Foods, Inc., 2 OCAHO 372 (Sept. 6, 1991) • Diaz v. Pacific Maritime Ass'n, 9 OCAHO no. 1108 (2004) • Ondina-Mendez v. Sugar Creek Packing Company, 9 OCAHO no. 1085 (2002) • Rodriguez v. Tyson Foods, Inc., 9 OCAHO 1109 (Oct. 19, 2004) • Touissant v. Techwood Association, 6 OCAHO no. 892 (1996) • U.S. v. 4431 Inc., 4 OCAHO 611 (1994) • U.S. v. China Wok Rest., 4 OCAHO 608 (1994) • U.S. v. Collins Food International d/b/a Sizzler Restaurant, 10 OCAHO 84 • U.S. v. Diversified Technology and Services, 9 OCAHO no.1095 (2003) • U.S. v. Felipe Cafe, OCAHO Case No. 89100151 (October 11, 1989) • U.S. v. Honeybake Farms, Inc., 2 OCAHO 311 (April, 2, 1991) • U.S. v. IBP, Inc., 7 OCAHO 949 (July 16, 1997) • U.S. v. James O. Carlson, 1 OCAHO 260 (1990) • U.S. v. Juan V. Acevedo, OCAHO Case No. 89100397, (October 12, 1989) • U.S. v. Le Merengo/Rumors Restaurant, OCAHO Case No. 89100290, (April 20,

1990) • U.S. v. Manos and Associates, DBA Bread Basket, 1 OCAHO 130 (1989) • U.S. v. Mesabi Bituminous, 1995 OCAHO • U.S. v. Minaco Fashions, 3 OCAHO 587 (1993) • U.S. v. Morales-Vargas, 5 OCAHO 732 (1995) • U.S. v. Nevada Lifestyles, Inc., d/b/a Commercial Drapery Cleaners, 3 OCAHO

no. 518 (May 10, 1993) • U.S. v. Northern Michigan Fruit Co., 4 OCAHO 667 (1994) • U.S. v. PPJV, Inc. DBA Publishers Press, 2 OCAHO 354 (1991) • U.S. v. Ramileh, 5 OCAHO 724 • U.S. v. Spring & Soon Fashion, Inc. 8 OCAHO no. 1003 (1998) • U.S. v. Swift & Co., 9 OCAHO no. 1068 (2001) • U.S. v. The Body Shop, OCAHO Case No. 89100450, (June 19, 1990) • U.S. v. Tuttle's Design Build, Inc., 2 OCAHO 370 (Aug. 30, 1991) • U.S. v. Villatoro-Guzman, 4 OCAHO 652 (1994) • U.S. v. Walden Station, Inc., 8 OCAHO. 1053, 810 (2000)

• U.S. v. WSC Plumbing, 9 OCAHO 1062 (Nov. 29, 2000) and 9 OCAHO 1071 (June 4, 2001)

• U.S. v. Y.E.S. Industries, 1 OCAHO 198 (July 16, 1990) • U.S. v. Zapata-Cosio, 5 OCAHO 822 (1995) • U.S. v. De Leon-Valenzuela, 6 OCAHO 899 (Nov. 6, 1996)

BIA Cases

• In re Luis Felipe Cervantes-Gonzalez 22 I. & N. Dec. 560 (BIA 1999) • In re Fidel Jiminez-Santillano, 21 I. & N. Dec. 567 (BIA 1996) • In re Izummi, 22 I. & N. Dec. 169, 196 (BIA 1998) • Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966) • Matter of Delia Lazarte-Valverde, 21 I&N Dec. 214 (BIA 1996) • Matter of Dial Auto Repair Shop, Inc., 19 I&N Dec. 481 (Comm'r 1986) • Matter of Guadarrama de Contreras, 24 I&N Dec. 625 (BIA 2008) • Matter of Hosseinpour, 15 I. & N. Dec. 191, 192 (BIA 1975) • Matter of Navas-Acosta, 23 I&N Dec. 586 (BIA 2003) • Matter of Y-G-, 20 I&N Dec. 794, 797 (BIA 1994)

Federal Cases

• AFL v. Chertoff, 552 F. Supp. 2d 999, (N.D. Cal. 2007) • Aramark v. Service Employees International Union, Local 1877, AFL CIO 530

F.3d 817, (9th Cir. Cal. 2008) • Arizona Contractors Ass'n v. Candelaria, 534 F. Supp.2d 1036, (D. Ariz. 2008) • Arizona Contractors Ass'n v. Candelaria, 544 F.3d 976 (9th Cir. 2008) • Ateka v. Ashcroft 384 F.3d 954 (8th Cir. 2004). • Bailey v. U.S., 516 U.S. 137, 145, 116 S.Ct. 501 (1995) • Beltran-Resendez v. INS, 207 F.3d 284 (5th Cir. 2000) • California v. ARC America Corp., 490 U.S. 93 (1989) • Canyon Cty. v. Syngenta Seeds, Inc., 519 F.3d 969 (9th Cir. 2008) • Cassano v. Carb, 436 F.3d 74 (2d Cir. 2006) • Chamber of Commerce of the United States of America, et al. v. Michael

Chertoff, et al., Civil Action No. AW-08-3444 (D.Md.) • Chamber of Commerce of USA, v. Kemp, Jr, Case No. 07-CV-00109-C

(W.D.Ok. Dec.2007) • Chicanos Por La Causa v. Napolitano, 544 F. 3d 976 (9th Cir. 2008) • Commercial Cleaning Servs., LLC v. Colin Serv. Sys., Inc., 271 F.3d 374 (2d Cir.

2001) • DeCanas v. Bica, 424 US 351 (1978) • Flores-Figueroa v. U.S., No. 08-108, 214 S.Ct. 457 (U.S. Oct. 20, 2008) • Florida Lime & Avocado Growers Inc. v. Paul, 373 U.S. 132 (1963) • Gade v. National Solid Waste Management Association, 505 U.S. 88 (1992) • Gibbons v. Ogden, 22 U.S. 1, 211 (1824) • Goldsmith v. U.S. Board of Tax Appeals, 27 U.S. 117 (1926) • Gray v. City of Valley Park, (E.D. Mo. January 31, 2008)

• Hardy v. New York News, 114 F.R.D. 633 (S.D.N.Y. 1987) • Hillsborough County, Fla. v. Auto. Med. Labs. Inc., 471 U.S. 707, 713 (1985) • Hines v. Davidowitz, 312 U.S. 52 (1941) • Hoffman Plastic Compounds, Inc. v. NLRB, 535 US 137 (2002) • Ibragimov v. Gonzalez, 476 F.3d 125 (2d Cir. 2007) • INS v. Nat'l Ctr. for Immigrants' Rights, Inc., 502 US 183 (1991) • Jeffers v. Russell County Bd. of Ed Case No. 3:06 CV 685-CSC (M.D. Ala. Oct

4, 2007) • Kirong v. Mukasey, 529 F.3d 800 (8th Cir. 2008) • Liparota v. United States, 471 U.S. 419 • Lozano v. City of Hazelton, 496 F. Supp.2d 477, (M.D.Pa. 2007) • Lozano v. City of Hazleton, CV 07-3531 (3rd Cir. 2007) • Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) • Pacamor Bearings Inc. v. Mineba Co., Ltd., 918 F. Supp. 491, 513 (D.N.H. 1996) • Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev.

Comm'n., 461 U.S. 190 (1983) • Padilla v. Commonwealth of KY, No. 08-651 (U.S. Feb. 23, 2009) • Platt v. Union Pacific R. Co., 99 U.S. 48 (1879) • Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) • Rodriguez v. Mukasey, 519 F.3d 773 (8th Cir. 2008) • Russello v. United States, 464 U.S. 16, 23 (1983) • Schwartz v. Texas, 344 U.S. 199, 203 (1952) • See v. City of Seattle, 387 U.S. 541 (1966) • Theodros v. Gonzales 490 F.3d 396 (5th Cir.2007) • Trollinger v. Tyson Foods, Inc., 543 F. Supp. 2d 842, 851-52 (E.D. Tenn. 2008) • TRW Inc. v. Andrews, 534 U.S. 19 (2001) • Upjohn Co. v. United States, 449 U.S. 383, 394-95 (1981) • U.S. v. Andrade-Rodriguez, 531 F.3d 721 (8th Cir. 2008) • U.S. v. Atlantic Research Corp., 551 U.S. 128, 127 S.Ct. 2331 (2007) • U.S. v. Ebert, 178 F.3d 1287 (4th Cir. May 3, 1999) • U.S. v. Flores-Figueroa, 274 Fed. Appx. 501, No. 07-2871 (8th Cir. Apr. 23,

2008) • U.S. v. Godin, 534 F.3d 51 (1st Cir. 2008) • U.S. v. Hristov, 466 F.3d 949, 952 (11th Cir. 2006) • U.S. v. Hurtado, 508 F.3d 603 (11th Cir. 2007) • U.S. v. Illinois, No. 07-3261 (C. Dist. Ill., March 12, 2009) • U.S. v. Karaouni, 379 F.3d 1139 • U.S. v. Kim, 193 F.3d 567 (2nd Cir. 1999) • U.S. v. Mendoza-Gonzalez, 520 F.3d 912 (8th Cir. 2008) • U.S. v. Miranda –Lopez, 532 F.3d 1034 (9th Cir 2008) • U.S. v. Nobles, 422 U.S. 225, 238-39 (1975) • U.S. v. Stein, 435 F. Supp. 2d 330 at 459 (S.D.N.Y. 2006) • U.S. v. Villanueva-Sotelo, 515 F.3d 1234 (D.C. Cir. 2008) • U.S. v. Wal-Mart Stores, Inc., Civ. No. 1:CV-05-0525 (M.D. Pa. Mar. 14, 2005)

• U.S. v. X-Citement Video, Inc., 513 U.S. 64, 73, 115 S.Ct. 464 (1994) • United States Nat'l Bank of Or. v. Independent Ins. Agents of Am., Inc., 508 U.S.

439, 460 (1993) • Williams v. Mohawk Industries, Inc., 465 F.3d 1277 (11th Cir. 2006) • Zavala v. Wal-Mart Stores, Inc., 393 F. Supp. 2d 295 (D. N.J. 2005)

Forms

• Form I-765 • Form I-765 Instructions • Form I-9 • Form N-400 • Form N-400 Instructions • Form W-2

Statutes

• 5 USC 551 • 5 USC 554 • 5 USC 555 • 5 USC 556 • 5 USC 557 • 5 USC 3105 • 8 USC 1159 • 15 USC 7241 • 18 USC 911 • 18 USC 924 • 18 USC 1015 • 18 USC 1015(e) • 18 USC 1028A(a) • 18 USC 1350 • 18 USC 1425(a) • 18 USC 1546 • 18 USC 1546(b) • 18 USC 1622 • 18 USC 1961 • 18 USC 1961(1) • 18 USC 1962 • 18 USC 1962(c) • 18 USC 1963 • 18 USC 1964 • 18 USC 1964(c) • 18 USC 1965 • 18 USC 1966 • 18 USC 1967 • 18 USC 1968

• 18 USC 3571 • 28 USC 1826(a) • 28 USC 1826(c) • 42 USC 405(c) • INA 101(a) [8 USC 1101(a)] • INA 101(f) • INA 208(b) • INA 212(a) [8 USC 1182(d)] • INA 212(d) • INA 214(b) • INA 214(c) • INA 214(h) • INA 237(a) • INA 240(c) • INA 240A(a) • INA 240A(b) • INA 240B(a) • INA 241(a) • INA 245(c) • INA 274(a) [8 USC 1324(a)] • INA 274A [8 USC 1324A] • INA 274A(a) [8 USC 1324A(a)] • INA 274A(b) [8 USC 1324A(b)] • INA 274A(d) • INA 274A(e) [8 USC 1324A(e)] • INA 274A(f) [8 USC 1324A(f)] • INA 274A(h) [8 USC 1324A(h)] • INA 274B(a) [8 USC 1324B(a)] • INA 274C(c) • INA 274C(d) • INA 274C(f) [8 USC 1324c(f)]

Regulations

• 8 CFR 214.2 • 8 CFR 214.3 • 8 CFR 245.1 • 8 CFR 245.2 • 8 CFR 270.2 • 8 CFR 270.3 • 8 CFR 274.2 • 8 CFR 274a.1 • 8 CFR 274a.2 • 8 CFR 274a.10 • 8 CFR 274a.12

• 8 CFR 287.4 • 8 CFR 292.3 • 8 CFR 312.1 • 8 CFR 1240.8 • 20 CFR 422.120 • 28 CFR 68.1 • 28 CFR 68.2 • 28 CFR 68.25 • 28 CFR 68.52 • 28 CFR 68.53 • 28 CFR 44.200 • 29 CFR 1601.6

Web Links

• DHS: Leadership Journal blog • DHS: Organizational Chart and Component Descriptions • DHS: Estimates of the Unauthorized Immigrant Population Residing in the United

States: January 2008 (February 2009) • DHS: Observations On The E-Verify Experience In Arizona & Recommended

Customer Service Enhancements • DHS: Findings of the Web Basic Pilot Evaluation • DHS Press Release: DHS Designates E-Verify as Employment Eligibility

Verification System for All Federal Contractors • DHS Privacy Impact Assessment for the Arrival and Departure Information

System (ADIS) • DHS: Remarks by Homeland Security Secretary Michael Chertoff on the State of

Immigration and the No Match Rule • DHS: Safe Harbor Procedures for Employers Who Receive a No-Match Letter, • DHS: Statement by Homeland Security Secretary Michael Chertoff on the E-

Verify Lawsuit with Illinois • DHS: U.S. Visitor Immigrant Status Indicator Technology (US VISIT) • DOJ: 2005 Federal Justice Statistics • DOJ: Look At The Facts. Not At The Faces. Your Guide to Fair Employment • DOJ: ICE Probe of Nevada McDonald's Franchisee Results in Guilty Pleas by

Local Corporation and Current and Former Executives on Immigration Charges • DOJ: Office of Special Counsel for Immigration-Related Unfair Employment

Practice, "OSC Update," (April 1, 2007) • DOJ: Office of Special Counsel for Immigration-Related Unfair Employment

Practice, "OSC Update," (Fall 2008) • DOJ: Office of Special Counsel, Overview of OSC: What Constitutes

Discrimination Under §1324b • DOJ Press Release: "Attorney General Michael B. Mukasey Announces Higher

Civil Fines Against Employers for Immigration Violations" (Feb. 22, 2008)

• DOJ Press Release: "Department of Justice Announces Settlement Agreement With Swift & Company Regarding Workplace Discrimination Claims" (Nov. 4, 2002)

• DOJ: Office of the Chief Administrative Hearing Officer • DOJ: Office of Special Counsel for Immigration-Related Unfair Employment

Practices • Government Accountability Office, "Illegal Aliens, Fraudulent Documents

Undermining the Effectiveness of the Employment Verification System," (July 22, 1999)

• Government Accountability Office, "Social Security Numbers, Coordinated Approach to SSN Data Could Help Reduce Unauthorized Work," (Feb. 16, 2006)

• GAO: Statement by Richard Stana, Director of Homeland Security and Justice Issues, U.S. Government Accountability Office (GAO), Employment Verification: Challenges Exist in Implementing a Mandatory Electronic Verificiation System, 12

• GAO: "Overstay Tracking," GAO-04-82 (May 2004) • ICE News Release: 331 Arrested by ICE agents during search of South Carolina

poultry processing plant • ICE News Release: Agriprocessors and management criminally indicted • ICE News Release: ICE Multifaceted Strategy Leads to Record Enforcement

Results: Removals, Criminal Arrests, and Worksite Investigations Soared in Fiscal Year 2008

• ICE News Release: ICE Signs 37 New Partners in the IMAGE Program • ICE News Release: Houston-area donut company, its president and 3 managers

plead guilty to immigration violations • ICE News Release: ICE and DOJ joint enforcement action at Iowa meatpacking

plant • ICE News Release: Union official at Swift & Co. sentenced to prison for

harboring illegal aliens," ICE News Releases, (Aug. 8, 2008) • ICE: Immigration and Nationality Act (INA) Debarment Questions and Answers • ICE Programs: Best Hiring Practices • ICE Fact Sheets: Frequently Asked Questions About Worksite Enforcement • ICE Fiscal Year 2007 Annual Report • ICE IMAGE: ICE Mutual Agreement Between Government and Employers • ICE IMAGE: Frequently Asked Questions • ICE Worksite Enforcement Fact Sheets • ICE: Worksite Enforcement Advisory • ILW.COM Blog Entry: Angelo Paparelli, "The Immigration Law of Contract:

Musings on E-Verify" • IRS: Publication 15, Employer's Tax Guide (2009) • Social Security Memorandum: Quick Response Evaluation A-03-07-17105 -

Effectiveness of Educational Correspondence to Employers • Social Security Administration: Employer Filing Instructions & Information:

Restrictions on Using SSNV

• Social Security Administration: Information and Instructions to Verify Social Security Numbers Online

• USCIS: H-1B Benefit Fraud & Compliance Assessment (September 2008) • USCIS: Employees-You Should Know Your Rights and Responsibilities Under

E-Verify • USCIS: Federal Contractors Frequently Asked Questions (FAQs) • USCIS: Information from USCIS about the SAVE program • USCIS: E-Verify • USCIS: E-Verify Privacy Q & A • USCIS: More E-Verify FAQs • USCIS: Q : Who do you share my personal information with? • USCIS: Employment Eligibility Verification • USCIS Press Release: "USCIS Announces Enhancements to E-verify Program"

(May 5, 2008) • USCIS: I am an Employer... How do I... use E-Verify? (Sept. 2007) • USCIS: Welcome to the United States: A Guide for New Immigrants • USCIS: Westat Inc., Findings of the Web Basic Pilot Evaluation, at xxi (Sept.

2007) • USCIS: Written Testimony of Jonathan "Jock" Scharfen, Acting Director, USCIS,

for a hearing on "Electronic Employment Verification Systems: Needed Safeguards to Protect Privacy and Prevent Misuse" (June 10, 2008)

• Arizona Sess. Legislature Chapter 152 (2008) • Executive Order No. 08-01 (January 2008) • Hearing on Electronic Employment Verification Systems: Needed Safeguards to

Protect Privacy and Prevent Misuse Before the House SubComm. on Immigration, Citizenship, Refugee, Border Sec., and Inter'l Law, 110th Cong. (June 10, 2008)

• Hearing on Employment Eligibility Verification Systems and the Potential Impacts on SSA's Ability to Serve Retirees, People with Disabilities, and Workers Before the House Subcomm. on Soc. Sec. of the House Comm. on Ways and Means, 110th Cong. (2008) (statement of Susan R. Meisinger, President and Chief Executive Officer, Society for Human Resource Management)

• Intel Corporation, "Comments on Proposed Employment Eligibility Regulations Implementing Executive Order 12989 (as amended)," (Aug. 8, 2008)

• CRS Memorandum: Questions on Internal Policy Memoranda issued by the Immigration and Naturalization Service (February 3, 2006)

• Statement of the U.S. Chamber of Commerce on Employment Eligibility Verification Systems (EEVS) and the Potential Impacts on the SSA's Ability to Serve Retirees, People with Disabilities, and Workers Before the House Subcomm. on Soc. Sec. of the House Comm. on Ways and Means, 110th Cong. (2008) (statement of Mitchell C. Laird, Esq, President, MCL Enterprises, Inc)

• Subcommittee on Social Security, "Hearing on Employment Eligibility Verification Systems and the Potential Impacts on SSA's Ability to Serve Retirees, People with Disabilities, and Workers," (May 06, 2008)

• Testimony of Stephen Yale-Loehr before the Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law, Committee on the Judiciary (Apr. 24, 2007)

• U.S. Equal Employment Opportunity Commission • U.S. Office of Special Counsel • Oral Argument in Ignacio Carlos Flores-Figueroa v. United States • U.S. Supreme Court certified Mr. Flores-Figueroa's Petition for Review. Eight

Amicus Curiae submitted briefs, and oral arguments • NILC: Immigrant Workers' Rights Resource Manual: Index • NILC: Employment Eligibility Verification and Antidiscrimination Protections • NILC: Workplace Enforcement by Immigration Authorities

Article from ILW.COM website

• The Perils of Pre-Emption: Immigration and the Federalist Paradox By Gary Endelman and Cynthia Lange


Immigration Books from ILW.COMTHE PERM BOOK - Editor: Joel Stewart, The H-1B Book - Editor: Karen Weinstock, TheConsular Posts Book - Editor Rami Fakhoury, Immigration Practice by Robert C. Divine andR. Blake Chisam, The Whole Act, Patel's Citations, 20/22/28 CFR Plus & 8 CFR Plus by P. J. Patel, US Tax Compliance For Immigrants And Employers: The Lawyer's Complete Guide - Editor Paula N. Singer, The Nurse Immigration Book - Editors: Joseph Curran andDan H. Berger. New titles are regularly added.Visit: www.ilw.com/books






Questions? Write to [email protected] # 0-9769529-2-0


THECONSULAR

POSTSBOOK

2009-2010 EditionEditor: Rami D. Fakhoury

PART I - Major Consular Posts: Argentina-Buenos Aires, Armenia-Yerevan, Australia-Sydney, Brazil-Sao Paulo, Canada-Toronto, China-Beijing / Guangzhou / Shanghai, Colombia-Bogota, France-Paris,Germany-Frankfurt / Munich, Haiti-Port Au Prince, India-Chennai / Kolkata / Mumbai / New Delhi,Jamaica-Kingston, Nigeria-Lagos, Philippines-Manila, Taiwan-Taipei, Trinidad & Tobago-Port OfSpain, United Kingdom-London, Vietnam-Ho Chi Minh City

PART II - Theory and Practice: 1: Introduction, 2: New Attorney Vulnerabilities in InternationalPractice, 3: Trade and Immigration Tightening? NAFTA, WTO, GATS Soup to Nuts, 4: Tips forAvoiding B-1/B-2 Visa Denials and Correcting other Refusal Issues with the Consul, 5: The Visa WaiverProgram (VWP): Not As Simple and Easy As It Looks, 6: Non-Immigrant Classes and Their U.S. TaxObligations, 7: E-1/E-2 Treaty Traders and Treaty Investors, 8: The Consular Role in L-1 BlanketPetitions, 9: H-1B “Dependent Employees”: From Labeling to Lawbreaking, 10: TemporaryAssignment of H-1B Employees to Client Work Sites, 11: State Department Name-Checks and SecurityAdvisory Opinions (SAOs), 12: ICE Data-Mining and Federal Benefits Fraud Task Forces – Send Inthe Marines: Best Practices to Survive Audits and Task Forces, 13: What to do if Your Client’s Visa isDenied: Visa Office Advisory Opinions, 14: A Template for Attorney Risk-Assessment

PART III - Resource Materials on CD-ROM: Hundreds of relevant Statutes / Regulations, Forms,FAM Provisions, Executive Orders, documents from DoC, DHS, DoJ, DoL, DoT, DoS, useful weblinks

THECONSULAR POSTSBOOK

2009-2010 Edition

Consular_Posts_Book_Cover.qxp 5/18/2009 12:05 PM Page 1

THE CONSULAR POSTS BOOK Editor: Rami D. Fakhoury

Contributors: Poorvi Chothani, Steven A. Culbreath, Dharamchand Depoo,

Marc Ellis, Vic Goel, Edward S. Gudeon, Magdale Labbe Henke, Frederick W. Hong, Christi Hufford, C. Valerie Ibe, Priscilla J. Jones, Noah Klug, Jose E.

Latour, Lesa Lawrence, Adam Lee, Mark Levey, Jakob Lipman, Susan Willis McFadden, Christy Nguyen, Claire D. Nilson, Curtis Pierce, Luis A. Pinilla,

Jessica L. Rodriguez, Kristina Rost, Emmanuel S. Tipon, Alice Yardum-Hunter EDITOR Rami D. Fakhoury is the founding and managing member of the “AV” rated boutique Corporate and Business Immigration Law firm of the Fakhoury Law Group, P.C. His practice focuses on business-based employment immigration, particularly in the Information Technology, Engineering industry, Health care workers, investors, Academics and individuals of exceptional ability. Mr. Fakhoury has extensive experience in the areas of Corporate Immigration, and has worked as In-House Counsel for Syntel Corporation, a Fortune 1000 company in the Information Technology industry. In particular, his practice focuses on H, L, E, and O visas, Labor Certifications, Advance Degree Professionals, Multinational Executives and Outstanding Researchers and Professors.


TABLE OF CONTENTS PART I. MAJOR CONSULAR POSTS Chapter 1: Argentina Buenos Aires, (Consulate) By Christi Hufford Chapter 2: Armenia Yerevan, (U.S. Embassy) By Alice Yardum-Hunter Chapter 3: Australia Sydney, (Consulate) By Noah Klug Chapter 4: Brazil Sao Paulo, (Consulate) By Kristina Rost Chapter 5: Canada Toronto, (Consulate) By Dharamchand " Randy" Depoo Chapter 6: China Beijing, (U.S. Embassy) By Frederick W. Hong Guangzhou, (Consulate) By Jakob Lipman and Adam Lee Shanghai, (Consulate) By Christy Nguyen Chapter 7: Colombia Bogota, (Consulate) By Luis A. Pinilla Chapter 8: France Paris, (U.S. Embassy) By Curtis Pierce Chapter 9: Germany Frankfurt, (U.S. Consulate) By Steven A. Culbreath Munich, (U.S. Consulate) By Magdale Labbe Henke Chapter 10: Haiti Port au Prince (Consulate) By Jose E. Latour Chapter 11: India Chennai, (Consulate) By Vic Goel Kolkata, (Consulate) By Poorvi Chothani Mumbai, (Consulate) By Priscilla Jones New Delhi, (U.S. Embassy) By Poorvi Chothani Chapter 12: Jamaica Kingston, (Consulate) By Claire D. Nilson Chapter 13: Nigeria Lagos, (US Consulate) By C. Valerie Ibe Chapter 14: Philippines Manila, (U.S. Embassy) By Emmanuel S. Tipon

mailto:[email protected]

Chapter 15: Taiwan Taipei, (Consulate) By Lesa M. Lawrence and Jessica L. Rodriguez Chapter 16: Trinidad and Tobago Port of Spain, (US Embassy) By Claire D. Nilson Chapter 17: United Kingdom London, (U.S. Embassy) By Edward S. Gudeon Chapter 18: Vietnam Ho Chi Minh City, (Consulate) By Marc Ellis PART II. THEORY AND PRACTICE Chapter 1: Introduction A. Data-mining & Real-Time Enforcement: The Future Landscape of the Visa Process Chapter 2: New Attorney Vulnerabilities in International Practice A. Prominent Lawyers Prosecuted for Money Laundering and Obstruction B. FBI/DHS Task Force Sting Operation Nets a Leader of the Criminal Bar C. The Loss of Attorney-Client Privilege in International Representation D. New FISA: H.R. 6304 Blanket Authorizations for Surveillance of International Communications E. Section 1801(h) - "Minimization" and exception for "evidence of a crime" F. New FISA illustration G. Sec. 1806 - The Minimization Loophole H. The al-Haramain Case - Targeted Surveillance of Attorney-Client Communications I. DOL Audits All Labor Certifications Submitted by Major Immigration Law Firm J. International Lawyer: Gatekeeper, Adversary or Defendant? K. Expanding View of Attorney Culpability and Mandatory Due Diligence Requirements L. Sarbanes-Oxley M. Department of Justice Targeting of Gatekeepers N. Enhanced Federal Enforcement and Revised Sentencing Penalties for Compliance Violations O. Federal Sentencing Guidelines - Up, Up and Away P. 2003 Department of Justice Guidelines Q. Further Erosion of Attorney-Client Privilege for Corporate Counsel R. Mandatory Disclosure of Representation, and Attorney Certification of Accuracy in all Represented Matters - The Future of Immigration Law? S. The End of Employer-sponsored Immigration? T. 50 USC, Chapter 36, Subchapter I, Sec. 1806, Foreign intelligence Surveillance, Subchapter I - Electronic Surveillance, Use Of Information U. Sec. 805. Review of Federal Sentencing Guidelines For Obstruction Of Justice And Extensive Criminal Fraud Chapter 3: Trade and Immigration Tightening? NAFTA, WTO, GATS Soup to Nuts A. Prospects for Changing Immigration, Surveillance and Global Trade Policies under the Obama Administration B. Comprehensive Immigration Reform (CIR) and DHS Cost-cutting: But, Not Very Comprehensive Reform and Selective Cutting of Enforcement Budgets C. Post-FISA Surveillance: When Your Client Calls From Overseas, Uncle Sam is on the line

D. The NAFTA Super-Highway Meets a Roadblock E. Shift to Interior Enforcement - Mandatory E-Verify F. H-1B and L-1 Programs Under Siege G. Release from Detention for CIR-eligible Aliens H. The Bottom-Line Calculus in Business Immigration and Free Trade Policy I. Obama: Changes to H-1B Seen as Part of Comprehensive Immigration Reform J. Congress: Revolt Against Off-Shoring K. WTO/GATT/GATS Reconsidered L. Will the "GATS Visa" Replace H-1B? Chapter 4: Tips for Avoiding B-1/B-2 Visa Denials and Correcting other Refusal Issues with the Consul A. Common Reasons B-1/B-2 Visas Are Denied - INA Section 214(b), INA Section 221(g) B. Overcoming 221(g) Refusals and Related Grounds for Denial - Interpretation of Notices of Denial C. Reapplication - Section 214(b) Factors Favoring Approval Upon Reapplication D. Short-term Business and Tourism Visa Refusal Rates, by Country, Fiscal Year 2007 Table Chapter 5: The Visa Waiver Program (VWP): Not As Simple and Easy As It Looks A. VWP Expansion B. New VWP Procedures C. Criminal History Issues D. Terrorism, Security and Related Issues E. Rules for B-1/B-2 Visitors and VWP F. ESTA Visa Waiver Application Illustration G. Form I-94 Illustration H. Form DS 156/157 Illustration I. Supplemental Form DS 157 Illustration J. US VISIT Biometrics and Traveler Information K. 9 FAM 40.21 Notes (Sec. 212 Inadmissability - Criminal Determinations) Chapter 6: Non-Immigrant Classes and Their U.S. Tax Obligations A. Generally B. Your status as a tax resident - U.S. tax resident, Non-Resident Alien (NRA), or dual-status - determines whether and how you must file an income tax return. C. Two tests for tax residency D. FICA Tax and Totalization Agreements E. Tax Considerations for B-1, E-1/E-2, H-1B, L-1, and O Visa Holders F. 2007 Filing Requirements Chart for Most Taxpayers G. Visas and Taxes At a Glance Chapter 7: E-1/E-2 Treaty Traders and Treaty Investors A. The principal applicant (whether a natural person or corporation), along with any employee seeking to enter on a E-visa, must be a national of the same treaty country. B. The international trade must be "substantial" in the sense that there is a sizable and continuing volume of trade (E-1) C. Valuation of investment (E-2) D. Commercial Enterprise (E-2) E. Substantiality Test (E-1/E-2) F. Proportionality Test (E-2) G. Continued "Course of Trade" (E-1) H. Possession and Control of Funds (E-2)

I. Lawful Source of Funds (E-1/E-2) J. Tax Considerations for E-1/E-2 Visa Holders K. Applying for the Visa - Required Documentation L. E-Treaty Countries Chapter 8: The Consular Role in L-1 Blanket Petitions A. Basic Requirements B. Procedures C. Where to File for the Visa D. What to File E. Who's Eligible to File F. Professional Occupation Requirement for the L-1B Blanket Petition G. Period of Admission-Initial Entry and Extensions of Stay H. Amended Petitions and Transfers Chapter 9: H-1B "Dependent Employees": From Labeling to Lawbreaking A. The Electronic Dragnet: H-1B and L-1 Data-mining B. LCA Enforcement: DOL Gets "A Piece of the Action" C. Who is an H-1 Dependent Employer? (USDOL) D. 20 CFR 655.736 - What are H-1B-dependent employers and willful violators? (USDOS) Chapter 10: Temporary Assignment of H-1B Employees to Client Work Sites A. Discussion B. Short-term Placements: A Question of Time C. The Roving Employee D. Long-Term Placements: A Question of Control Chapter 11: State Department Name-Checks and Security Advisory Opinions (SAOs) A. The SAO Data-mining trigger B. CLASS Lookout System C. Visas Condor SAO D. Visas Eagle Mantis and Visas Donkey Mantis SAOs E. Guidelines for Visas Eagle Mantis and Donkey Categories F. Sample Reciprocity Schedule, Index to Available Documents, SAO Requirements, and Country-specific Footnotes (IRAN) G. Sample Employment Letters (SAO-related) Chapter 12: ICE Data-Mining and Federal Benefits Fraud Task Forces - Send In the Marines: Best Practices to Survive Audits and Task Forces A. Avoiding and Surviving Immigration Benefits Fraud Investigations B. Surging Immigration Fraud Investigations C. Fraud Prosecutions of Immigration Lawyers D. The Immigration Bar Begins to Recognize Risks E. Federal Fraud Statutes Related to Immigration F. Federal Perjury Statutes, Title 18 G. Federal Obstruction of Justice Statutes, Title 18 H. Federal Task Force Investigations of Immigration Benefits Fraud I. Prosecutions of Immigration Fraud Crimes Committed Years Earlier J. Selective Prosecutions of Targeted Nationality Groups K. H-1B Enforcement and ICE Random Fraud Audits

L. Government Data Mining of Immigration and Consular Applications M. Due Diligence and Ethical Duties for Immigration Attorneys in the Age of Data- Mining and Warrant less Intercepts N. Rules Governing the Client-Lawyer Relationship O. Defensive Due Diligence and Preventative Attorney and Client Self-Audits P. Essential Due Diligence for Immigration Practitioners Q. Why Perform Due Diligence? R. How Much Due Diligence is due? S. The Risk Grid Illustration T. Politically Exposed Persons (PEPs) U. Required Elements of a Customer Identification Program (CIP) V.Specially Designated Nationals List (SDN) W. Sample Commercial Watch List Aggregation Services X. Government Data Mining of Immigration and Consular Applications Y. Federal Data Mining Processes Illustration Z. Background Checks of Non-Immigrants and Immigrant Visa Applicants - Who Gets Checked, How it Gets Checked, and What to Expect AA. USCIS/DOS Data Collection, Analysis and Dissemination Systems BB. Treasury Enforcement Communication System/ Interagency Border Inspection System (TECS/IBIS)("IBIS") CC. FBI Fingerprint Check DD. FBI Name Check EE. Fraud Detection and National Security Data System (FDNS-DS) FF. Law Enforcement Analytic Data System (NETLEADS) GG. ICE Pattern Analysis and Information Collection System (ICEPIC) HH. National Immigration Information Sharing Office (NIISO) II. Financial Crimes Enforcement Network (FinCEN) and BSA Direct JJ. Intelligence and Information Fusion (I2F) KK. Categories of Information Collected from Immigration Applications Chapter 13: What to do if Your Client's Visa is Denied: Visa Office Advisory Opinions A. Jurisdiction - Court of Last Appeal for Visa Denials B. Ripeness and Standing C. Visa Office Inquiry Procedures D. Inside The Visa Office - Who Decides? Chapter 14: A Template for Attorney Risk-Assessment A. Develop a Risk Management Profile to Identify Clients, Matters and Counter-parties with a High Risk B. How a Law Firm Can Reduce Risks Associated With Client Fraud C. Potential Benefits Fraud and Money Laundering D. Client Indicators of High-Risk - Corporate Ownership and Control Issues E. Red Flags & Triggers for Investigation of Client Money Laundering and Terrorist Finance F. The Red Flags of Client Criminal Activity or Terrorism G. Data-mining Inputs and Outputs Illustration H. Know Your Client - Red Flags of Criminal Activities I. A Note on Client Fees: Indicators That Something May be Wrong J. DHS Cornerstone Program: Red Flags of Money-Laundering Activities K. IRS "John Doe" Summons for Offshore Credit Card Records L. Profiling

M. Who gets Profiled N. DHS Cornerstone Program - Red Flags for Enforcement Action O. Recent ICE/BCE Interagency Task Force Enforcement Activity PART III. RESOURCE MATERIALS ON CD-ROM Hundreds of relevant Statues/Regulations, Forms, FAM Provisions, Executive Orders, documents from DoC, DHS, DoJ, DoL, DoT, DoS, useful weblinks.

j. DHS Cornerstone Program: Red Flags of Money-Laundering Activities k. IRS “John Doe” Summons for Offshore Credit Card Records l. Profiling m. Who gets Profiled n. DHS Cornerstone Program – Red Flags for Enforcement Action o. Recent ICE/BCE Interagency Task Force Enforcement Activity PART III. CD-ROM RESOURCE MATERIALS On the inside back cover Statutes

• INA 101(a)(15) [8 USC 1101] • INA 101(b)(1) [8 USC 1101] • INA 203(b)(1) [8 USC 1153] • INA 212(a)(1) [8 USC 1182] • INA 212(a)(2) [8 USC 1182] • INA 212(a)(3) [8 USC 1182] • INA 212(a)(6) [8 USC 1182] • INA 212(d)(3) [8 USC 1182] • INA 212(e) [8 USC 1182] • INA 212(g) [8 USC 1182] • INA 212(h) [8 USC 1182] • INA 212(i) [8 USC 1182] • INA 212(n) [8 USC 1182] • INA 212(t) [8 USC 1182] • INA 214(b) [8 USC 1184] • INA 214(g) [8 USC 1184] • INA 221(g) [8 USC 1201] • INA 237(a)(2) [8 USC 1227] • INA 241(a)(2) [8 USC 1231] • INA 241(b) [8 USC 1231] • INA 274C(a) [8 USC 1324c] • INA 274C(b) [8 USC 1324c] • INA 274C(c) [8 USC 1324c] • INA 274C(d) [8 USC 1324c] • INA 274C(e) [8 USC 1324c] • 18 USC 201(b)(1) • 18 USC 922(e) • 18 USC 981(a)(1) • 18 USC 982(a)(1) • 18 USC 1001(a)(1) • 18 USC 1001(a)(2) • 18 USC 1001(a)(3)

The Consular Posts Book 2009-2010 Edition

7

• 18 USC 1621 • 18 USC 1956(a) • 18 USC 1956(h) • 21 USC 844(b)(1) • 22 USC 2778(c) • 26 USC 414(b) • 26 USC 414(c) • 26 USC 414(m) • 26 USC 414(o) • 26 USC 1563(a) • 28 USC 994 • 28 USC 2461(c) • 50 USC 1801(e)(2) • 50 USC 1801(h)(2) • 50 USC 1801(i) • 50 USC 1806(b) • 50 USC 1806(c) • 50 USC 1806(d) • 50 USC 1806(e) • 50 USC 1806(f) • 50 USC 1810

Regulations

• 8 CFR 204.5 • 8 CFR 204.6 • 8 CFR 214.2 • 8 CFR 214.2(e)(1) • 8 CFR 214.2(e)(5) • 8 CFR 214.2(e)(8) • 8 CFR 214.2(e)(9) • 20 CFR 655.715 • 20 CFR 655.735 • 20 CFR 655.736 • 20 CFR 655.737 • 20 CFR 655.738 • 20 CFR 655.739 • 22 CFR 40.21 • 22 CFR 41.51 • 22 CFR 127.1 • 22 CFR 129.2 • 26 CFR 1.414

Foreign Affairs Manual

• 9 FAM 40.7 Notes • 9 FAM 40.21(a) Crimes Involving Moral Turpitude and Controlled Substance

Violators


8

• 9 FAM 40.21(a) Notes • 9 FAM 40.21(a) Procedural Notes • 9 FAM 40.21(b) Notes • 9 FAM 40.63 Notes • 9 FAM 41.51 Treaty trader or treaty investor • 9 FAM 41.51 Notes • 9 FAM 41.51 Exhibit I Treaties and Laws Containing Trader and Investor

Provisions in Effect Between the US and Other Countries • 9 FAM 41.51 Exhibit III Form DS-156-E, Nonimmigrant Treaty/trader Investor

Visa Application • 9 FAM 41.51 Exhibit IV • 9 FAM 41.104 Exhibit I Countries that Extend Passport Validity for an Additional

Six Months After Expiration • 9 FAM 41.121 Refusal of Individual Visas • 9 FAM 41.121 Notes • 9 FAM 41.121 Procedural Notes • 9 FAM 41.121 Exhibit III Form OF-194, Refusal Worksheet • 9 FAM 42.81 Procedure in Refusing Individual Visas • 9 FAM Appendix A • 9 FAM Appendix D, 200 Consular Lookout and Support System (CLASS) • 9 FAM Appendix D, Exhibit I Class Refusal/Lookout Codes

Forms

• Form 1040 • Form 1040NR • Form DS-156E • Form DS-157 • Form ETA 9035 • Form ETA 9089 • Form G-28 • Form I-129 • Form I-485 • Form I-601 • Form I-687 • Form I-698 • Form N-400 • Form SS-5 • Form W-2 • Form W-8BEN • Form W-9

Executive Orders

• Executive Order 12143 - Maintaining Unofficial Relations with the People on Taiwan

• Executive Order 12333 - United States Intelligence Activities


9

Department of Commerce • Visas and Foreign Direct Investment: Supporting US Competitiveness by

Facilitating International Travel Department of Homeland Security

• 2006 Data Mining Report: DHS Privacy Office Response to House Report 108-774

• 2007 Data Mining Report: DHS Privacy Office Response to House Report 109-699

• Form Report: DHS Exhibit 300 Public Release BY08/USCIS - Immigration - CLAIMS 3.0 (2008)

• Privacy Impact Assessment for the Fraud Detection and National Security Data System

• Review of Vulnerabilities and Potential Abuses of the L-1 Visa Program • Survey of DHS Data Mining Activities • US-VISIT Enrollment Requirements • US-VISIT Biometric Procedures: Applicability to Canadian Citizens • US-VISIT Biometric Procedures: Applicability to Mexican Citizens

Department of Justice

• Audit of the US Department of Justice Terrorist Watchlist Nomination Processes • Criminal Resource Manual 1733 Scope of 18 USC 1513 • Matter of C'Sonka, 17 I&N Dec. 254 (Regional Commissioner 1978) • Matter of De M-, 9 I&N Dec. 218 • Matter of Khan, 16 I&N Dec. 138 (BIA 1977) • Matter of Portuguese do Atlantico, Int. Dec. 2982 (BIA, 1984) • Matter of Roldan, 22 I & N. Dec. 512 • Matter of Shaw, 15 I&N Dec. 794 (BIA 1976) • Matter of Sirhan, 13 I&N Dec. 592 • Matter of Walsh and Pollard, 20 I&N Dec. 60 (BIA 1989) • In re Heitland, 14 I. & N. Dec. 563 (BIA 1974), Aff'd, 551 F.2d 495 (2d Cir.),

Cert. denied, 434 U.S. 819, 98 S.Ct. 59, 54 L.Ed.2d 75 (1977) • Memo, Principles of Federal Prosecution of Business Organizations (January 20,

2003) • Memo, Sharing Title III Electronic Surveillance Material with the Intelligence

Community • Report of the Director on Applications for Orders Authorizing or Approving the

Interception of Wire, Oral, or Electronic Communications • Defensor v. Meissner, 201 F. 3d 384 (5th Cir.) • Rajan v. International Business Solutions, Ltd., 03-104 (ARB 8/31/04) • Costello v. INS, 376 U.S. 120

Department of Labor

• Employment Law Guide: Workers in Professional and Specialty Occupations (H-1B and H-1B1 Visas)

• Fact Sheet #62C: Who is an H-1B-dependent employer?


10

• H-1B Willful Violator List of Employers Department of Treasury

• Combating Money Laundering and Terrorist Financing: BSA Guidance for Bankers and Examiners

• Combating Money Laundering and Terrorist Financing: BSA High Risk Designations, OCC Alerts, FinCEN Advisories, and OFAC Lists

• FinCEN Halts BSA Direct Retrieval and Sharing Project • Guidance on Customer Identification Regulations FAQs: Final CIP Rule • Issuances: Office of the Comptroller of the Currency (OCC) Alerts • OCC Alert: Emergency Communications and National BankNet • Terrorism and Financial Intelligence: Specially Designated Nationals (SDN) List • Office of Foreign Assets Control: Specially Designated Nationals and Blocked

Persons (PDF Format) • Office of Foreign Assets Control: Specially Designated Nationals and Blocked

Persons (Text Format) • Office of Foreign Assets Control: Specially Designated Nationals List by Country • SDN List Sorted by OFAC Sanctions Program • Office of Foreign Assets Control: Specially Designated Nationals List • Report to The Congress on Earnings Stripping, Transfer Pricing and U.S. Income

Tax Treaties Department of State

• Administrative Processing Information • Foreign Affairs Handbook 5 FAH-3 H-800 Termdex • Guideline 4 – Facilitate Information Sharing Between Executive Departments and

Agencies and Foreign Partners • Guidance on Petition Revocations • Office of Authentications • Operation Triple X: Human Trafficking/Document Fraud Investigation • Release of the 2009 International Narcotics Control Strategy Report (INCSR) • Report of the Visa Office 2007 Table of Contents • Special Visa Processing Procedures - Travelers from State Sponsors of Terrorism • State Sponsors of Terrorism • Travel on the Visa Waiver Program (VWP): Information for New Member

Countries • Treaty Countries • Visa Wait Times

Bureau of Labor Statistics

• Economic News Release: Employment Situation Summary Customs and Border Patrol

• CBP Travel Spotlight: For International Visitors • Fact Sheet on Expansion of Operation Green Quest

Citizenship and Immigration Services


11

• Fact Sheet: Immigration Security Checks - How and Why the Process Works • FILE: LIN 04 186 52521, Petition for a Non-Immigrant Worker Pursuant to

Section 101(a)(15)(H)(i)(b) (AAO, July 14, 2006) • FILE: SRC 02 245 52252, Petition for a Non-Immigrant Worker Pursuant to

Section 101(a)(15)(L) (May 18, 2004) • H-1B Benefit Fraud & Compliance Assessment (September 2008) • Handbook for Employers: Instructions for Completing Form I-9 (Employment

Eligibility Verification Form) Government Accountability Office

• Memo, Investigations of Terrorist Financing, Money Laundering, and Other Financial Crimes (February 20, 2004)

• Testimony: Overstay Tracking is a Key Component of a Layered Defense (October 16, 2003)

• Visa Waiver Program: Actions Are Needed to Improve Management of the Expansion Process, and to Assess and Mitigate Program Risks

Federal Bureau of Investigations

• Statement of Gary Bald, Executive Assistant Director Before the US Senate Committee on the Judiciary (Sept. 21, 2005)

Immigration and Customs Enforcement

• Document and Benefit Fraud Task Forces • News Release: Orlando, Fla., man sentenced for visa fraud following ICE-led

investigation • News Release: Two attorneys at law firm plead guilty in relation to visa fraud

scheme • Red Flag Indicators

Internal Revenue Service

• IRS Sets New Audit Priorities • Foreign Student Liability for Social Security and Medicare Taxes • Publication 501 • Publication 515 • Publication 519 • Publication 1542 • Tax Treaties

The White House

• High Intensity Drug Trafficking Areas ILW.COM

• Editorial Comment: Santa Arrives Late • Editorial Comment: Indians and Chinese Face Refusal • Ethical Dilemmas In A Post 9/11 World by Cyrus Mehta


12

Miscellaneous • Guidance for an Effective Anti-Money Laundering (AML) Program, NY Federal

Reserve (May 20, 2008) • House Report 110-862: Department of Homeland Security Appropriations Bill

2009 • International Agreements, Payments Outside the United States, and Social

Security in Other Countries • Office of Senator Dick Durbin, "Durbin and Grassley Introduce First Bi-Partisan

H-1B Visa Reform Bill" (April 2, 2007) • U.S., EU Issue Statement on Common Data Privacy and Protection Principles

Web Links

• ABA Canons Of Professional Ethics • ABA Center for Professional Responsibility: Model Rules of Professional

Conduct • Adjudicator Field Manual • Archive of Changes to the SDN List • Cornerstone Report • Electronic System for Travel Authorization • IRS Forms and Publications • Reciprocity by Country • Office of National Drug Control Policy: High Risk Money Laundering and

Related Financial Crimes Areas (HIFCAs) • Sharing Information with Foreign Powers, The White House


13


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Questions? Write to [email protected] # 0-9769529-8-X


US Tax Compliance ForImmigrants And Employers:

The Lawyer's Complete Guide2009-2010 Edition

Editor: Paula N. Singer

PART I International Aspects of Individual U.S. Tax Returns

PART II A Guide For Filing IRS Forms 1042 and 1042-S

PART III U.S. Taxation of H-1B Specialty Workers

PART IV U.S. Taxation of B-1 Business Visitors

PART V U.S. Taxation of Foreign Students

PART VI L-1 Intracompany Transferees on U.S. Assignment

PART VII What You Need To Know About Exchange Visitors

PART VIII J-1 Non-student Exchange Visitors Performing U.S. Services

PART IX Tax Treaty Benefits for Foreign Nationals Performing U.S. Services

APPENDIX Includes Treaties/Agreements and Sample Letters

CD-ROM Includes 50+ IRS Forms, 16 IRS Publications, Useful Weblinks

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US Tax Compliance For Immigrants And Employers: The Lawyer's Complete Guide

Editor: Paula N. Singer, Esq.

Contributing Author: Gary P. Singer EDITOR

Paula N. Singer, Esq., a partner with the tax law firm, Vacovec, Mayotte & Singer, LLP, Newton, Massachusetts, concentrates her practice in international tax matters for individuals, businesses, trusts, and estates. Ms. Singer has been advising employers, payers, and taxpayers on cross-border matters for over 25 years. Ms. Singer assisted the IRS with the development of Form 1040NR-EZ. Her comments on proposed regulations under Section 7701(b) (the substantial presence test) and under Section 1441 (withholding on pay-ments to foreign persons) of the Internal Revenue Code were incorporated into the final regulations under each section. Ms. Singer has a B.A. from the University of Maine (Orono) and a J.D. from the University of Maine School of Law. She speaks and writes regularly on international tax topics. Many of her articles are posted on the Windstar Technologies, Inc. web site, and on her law firm's web site, www.vacovec.com. Ms. Singer is the author of a series of books published under the collective title U.S. Tax Guides for Foreign Persons and Those Who Pay Them. She is the Co-chair of ABA Section of Taxation In-ternational Sub-committee, Cross-border Individual Tax Issues.

PRICE: $499

Free Shipping And Handling (taxes included)

TABLE OF CONTENTS PART I. INTERNATIONAL ASPECTS OF INDIVIDUAL U.S. TAX RETURNS Chapter 1. Introduction 1.1 Immigration Basics 1.2 U.S. Tax Residency Rules 1.3 Conflicting Definitions of "Resident" and "Nonresident" 1.4 Impact of Incorrect Returns on Immigration Benefits Chapter 2. Who Must File, What, and When? 2.1 U.S. Citizens and Residents 2.2 Nonresidents 2.3 Dual-Status Taxpayers 2.4 Sailing Permit Requirement 2.5 Income from U.S. Possessions 2.6 Taxpayer Identification Numbers 2.7 Tax Year 2.8 Due Dates 2.9 Where to File 2.10 Payments 2.11 Timely Filing and Paying 2.12 Amended Returns 2.13 Designees and Agents 2.14 Form 1042 and 1042 S Filing Obligations Chapter 3. Resident or Nonresident? 3.1 Residency Status Based on Immigrant Status 3.2 Residency Status Based on U.S. Presence 3.3 The Closer Connection Exception 3.4 U.S. Days That Do Not Count 3.5 Exempt Individuals 3.6 Foreign Government-Related Individuals 3.7 Teachers and Trainees 3.8 Students 3.9 Changing to Another Nonimmigrant Status 3.10 Individuals from Former Trust Territories Chapter 4. Residency Start and End Dates 4.1 Residency Start Date 4.2 Residency Termination Date 4.3 Residency Start and End Dates for Immigrants Chapter 5. Residency and Nonresidency Elections 5.1 First-Year-Choice Election 5.2 Residency Election Based on Marriage 5.3 Residency Election Based on a Tax Treaty 5.4 The Closer Connection Extension 5.5 Nonresidency Election Under a Treaty Tie-Breaker Rule Chapter 6. Tax Returns for Citizens and Residents 6.1 Currency Translations 6.2 Real Estate Transactions 6.3 Travel Expenses 6.4 Foreign Retirement Plans 6.5 Filing Status and Personal Exemptions 6.6 Deductions, Adjustments, and Credits 6.7 Avoidance of Double Taxation

6.8 Treaty Claims 6.9 Dual-Status Taxpayers Chapter 7. Tax Returns for Nonresidents 7.1 U.S.-Source Income 7.2 Fixed or Determinable Income 7.3 Effectively Connected Income 7.4 Filing Status and Personal Exemptions 7.5 Deductions, Adjustments, and Credits 7.6 Form 1040NR or 1040NR-EZ 7.7 Form 8843 Requirement 7.8 Treaty Claims by Nonresidents 7.9 E-filing Chapter 8. Required Disclosures 8.1 Foreign Financial Accounts 8.2 Cross-Border Asset Transfers 8.3 Ownership Interests in Certain Foreign Entities 8.4 Other Disclosures Chapter 9. Expatriate Returns 9.1 Section 911 Foreign-Earned Income Exclusions 9.2 Qualifying Taxpayers 9.3 Foreign-Earned Income 9.4 The Foreign-Earned Income Exclusion 9.5 The Housing-Cost Exclusion/Deduction 9.6 Exclusions for Certain Employer-Provided Housing 9.7 Impact on State Income Taxes Chapter 10. Tax Treaty Benefits 10.1 How Tax Treaties Work 10.2 Articles Conferring Benefits 10.3 Impact of U.S. and Foreign Residency Status 10.4 Earnings from Personal Services 10.5 Treaty Benefits for Scholarships and Fellowships 10.6 Treaty Benefits for Retirement Payments and Contributions 10.7 Treaty Benefits for Social Security Payments 10.8 Treaty Benefits for FDAP Income 10.9 Form 8833 Requirement 10.10 Competent Authority Chapter 11. Tax Expatriates 11.1 Expatriation After June 3, 2004 11.2 Expatriation on or Before June 3, 2004 11.3 Form 8854 11.4 Expatriation Tax Chapter 12. Social Security and Medicare Taxes 12.1 Employment Performed Abroad 12.2 U.S. Self-Employment Tax 12.3 Social Security and Medicare Tax Refunds 12.4 Refund of NRA Taxes Withheld in Error on Benefits Chapter 13. State Income Tax Returns 13.1 State Tax Residency Status 13.2 State Residents Working Abroad 13.3 Income Tax Treaty Exemptions

Chapter 14. Taxpayer Identification Numbers 14.1 Individuals Eligible for ITINs 14.2 Documentation Requirements 14.3 Application Submission Procedures 14.4 Pre-Tax Return Submissions 14.5 Acceptance Agents 14.6 Acceptance Agent Application Procedures Chapter 15. Common Mistakes to Avoid 15.1 Filing the wrong tax return 15.2 Filing using married-filing-jointly status incorrectly 15.3 Failing to include all income in the return 15.4 Claiming incorrect personal exemptions. 15.5 Incorrectly claiming a tax treaty benefit 15.6 Claiming improper temporarily-away-from-home expense deductions 15.7 Excluding certain taxable capital gains on stock sales on Form 1040NR 15.8 Failing to file disclosure forms 15.9 Failing to file a federal tax return 15.10 Failing to file a state income tax return Chapter 16. Resources 16.1 Websites 16.2 IRS Publications PART II. A GUIDE FOR FILING IRS FORMS 1042 AND 1042-S Chapter 1. Introduction to Forms 1042 and 1042-S 1.1 Withholding Agent Obligations 1.2 Who Must File Form 1042-S 1.3 Reporting Rules for Form 1042 S 1.4 Interest Payments to Residents of Canada 1.5 Form 1042 S Information 1.6 Taxpayer Identification Number Requirement 1.7 Foreign Address Requirement 1.8 Form 1042 S Recipient Rules 1.9 Multiple Withholding Agent Rule 1.10 Form 1042 S Vendor List Chapter 2. When to File Forms 1042 and 1042-S 2.1 Timely Filed Returns 2.2 Extending the Time to Filev 2.3 Penalty for Failure to Timely File Forms 1042-S Chapter 3. How and Where to File Forms 1042-S 3.1 Submitting Paper Forms 1042-S 3.2 Form 4419: Applying to File Information Returns Electronically 3.3 Applying for a Waiver from Filing Electronically 3.4 New Instructions for Filing Electronically 3.5 Submitting Forms 1042-S Electronically 3.6 Providing Form 1042-S Recipient Statements 3.7 Retention of Forms 1042-S Chapter 4. Preparing Electronic Files 4.1 Test Files 4.2 Original Files 4.3 Common Form 1042-S Processing Errorsv 4.4 TIN Requirement 4.5 Replacement Files 4.6 Amended Files

Chapter 5. Filing Electronically 5.1 Preparing the File 5.2 Connecting to the FIRE System 5.3 Electronic Requests for Extension of Time to File 5.4 The Most Common Problems of Electronic Filers Chapter 6. Service Center Processing and Validity Checks 6.1 Validation of Recipient "Q" Record Fields 6.2 Validation of Form 1042-S Data 6.3 Validation of "T," "W," "C," and "F" Records 6.4 Validation of Extension of Time Records Chapter 7. Correcting Errors 7.1 Making Paper Corrections 7.2 Making Electronic Corrections 7.3 Correcting Forms 1042-S Recipient Statements Chapter 8. Depositing Withheld Taxes 8.1 Frequency of Deposits 8.2 Making Deposits 8.3 EIN Requirement 8.4 Timely Deposits 8.5 Penalty for Late Deposits 8.6 Adjusting for Over Withholding Chapter 9. Form 1042 Tax Return 9.1 Extending the Time to File Form 1042 9.2 Penalties and Interest 9.3 Amended Form 1042 Chapter 10. A Strategy for Filing Forms 1042 and 1042-S 10.1 File Electronically 10.2 Request a TCC Number for Form 1042-S Submissions 10.3 Inform Recipients to Expect Their Form 1042-S Recipient Statements 10.4 Prepare Form 1042-S Recipient Statements Early 10.5 Provide Form 1042-S Recipient Statements with Multiple Income Lines 10.6 Request an Extension of Time to File Your IRS Submission 10.7 Request an Extension of Time to Submit Your Form 1042 10.8 Do Not Request an Extension of Time to Furnish Form 1042 S Recipient Statements 10.9 Review Your File for Errors Before Submitting It to the IRS Chapter 11. Contacting IRS/ECC-MTB 11.1 Information Reporting Program/Customer Service Section 11.2 Numbers and Sites for Other Information PART III. U.S. TAXATION OF H-1B SPECIALTY WORKERS Chapter 1. Introduction 1.1 Work Authorization 1.2 Taxpayer Identification Number Chapter 2. U.S. Tax Residency Rules 2.1 Residency Status Based on U.S. Presence 2.2 Nonresidency Status Claims Based on an Income Tax Treaty Chapter 3. Residency Start and Termination Dates 3.1 Residency Start Date

3.2 Tax Residency Elections 3.3 Residency Termination Date Chapter 4. Changes to H 1B Status 4.1 Change of Status from J 1 Nonstudent to H-1B 4.2 Changes from F 1 or J 1 Student Status Chapter 5. Federal Income Tax Rules 5.1 Tax Rules for Nonresidents 5.2 Tax Rules for Residents 5.3 Tax Rules for Dual-Status Aliens 5.4 Stock Ownership in a Foreign Corporation Chapter 6. Income Tax Treaty Benefits 6.1 U.S.-Source Income 6.2 Employment Compensation 6.3 Compensation of Teachers and Researchers 6.4 Special Considerations for Research Scholars Chapter 7. State Income Taxes 7.1 Domicile 7.2 Residence 7.3 State Tax Rules 7.4 Income Tax Treaty Exemptions Chapter 8. Withholding and Reporting 8.1 Benefits in Kind 8.2 Special Withholding Rules for Nonresidents 8.3 Treaty-Exempt Compensation 8.4 Social Security and Medicare Taxes 8.5 State Income Taxes Chapter 9. U.S. Tax Returns 9.1 Sailing Permit Requirement 9.2 Federal Tax Return 9.3 Treaty Claims 9.4 State Tax Returns Chapter 10. Individual Taxpayer Identification Numbers 10.1 Individuals Eligible for ITINs 10.2 Documentation Requirements 10.3 Application Submission Procedures 10.4 Acceptance Agents 10.5 Acceptance Agent Application Procedures Chapter 11. Resources 11.1 Websites 11.2 IRS Publications PART IV. U.S. TAXATION OF B-1 BUSINESS VISITORS Chapter 1. Introduction 1.1 Work Authorization 2.2 Taxpayer Identification Number Chapter 2. Payments to B Visitors 2.1 Reimbursed Business Expenses 2.2 B Honoraria

2.3 Directors' Fees 2.4 Payments to Accompanying Servants Chapter 3. U.S. Tax Residency Rules 3.1 Residency Status Based on U.S. Presence 3.2 Nonresidency Status Claims Based on an Income Tax Treaty 3.3 Residency Start Date 3.4 Residency Termination Date Chapter 4. Federal Income Tax Rules 4.1 Commercial Traveler Rule 4.2 U.S.-Source Income 4.3 Effectively Connected Income 4.4 Income Tax Treaty Exemptions 4.5 Compensation Paid to Certain Residents of Canada or Mexico. 4.6 Compensation of Employees of Foreign Governments or International Organizations 4.7 Withholding and Reporting on Payments for Services 4.8 Nonresident Tax Return 4.9 B-1 Visitors Who Become Residents 4.10 Tax Rules for Dual-Status Aliens 4.11 Stock Ownership in Foreign Corporations Chapter 5. Payments to a Foreign Corporation for U.S. Services 5.1 Income Effectively Connected to a U.S. Trade or Business 5.2 Payments to a Foreign Corporation for Services 5.3 Combined Payments 5.4 Personal Holding Companies 5.5 Exemption from Withholding Under an Income Tax Treaty 5.6 Exemption for Payments to Foreign Tax-Exempt Organizations Chapter 6. Payments for Self-Employment Services 6.1 Required Withholding Taxes and Reporting 6.2 Lack of a Valid Withholding Certificate 6.3 Exemption from Withholding Under an Income Tax Treaty 6.4 Payments to Agents and Intermediaries Chapter 7. Social Security and Medicare Taxes 7.1 Exemption from Tax Under a Social Security Agreement 7.2 Self-Employment Tax Chapter 8. State Income Taxes 8.1 Domicile 8.2 Residence 8.3 State Tax Rules 8.4 Income Tax Treaty Exemptions Chapter 9. Individual Taxpayer Identification Numbers 9.1 Individuals Eligible for ITINs 9.2 Documentation Requirements 9.3 Application Submission Procedures 9.4 Acceptance Agents 9.5 Acceptance Agent Application Procedures Chapter 10. Resources 10.1 Websites 10.2 IRS Publications

PART V. U.S. TAXATION OF FOREIGN STUDENTS Chapter 1. Introduction 1.1 Student Immigration Categories 1.2 Students in Other Immigration Categories 1.3 Work Authorization 1.4 Social Security Numbers 1.5 Payments to Foreign Students Chapter 2. U.S. Tax Residency Rules 2.1 Residency Status Based on U.S. Presence 2.2 U.S. Days That Do Not Count 2.3 Exempt Individuals 2.4 Closer Connection to a Foreign Country 2.5Residency Start and Termination Dates 2.6 Tax Residency Elections 2.7 Changing to Another Nonimmigrant Status 2.8 Foreign Students Married to a U.S. Citizen or Immigrant Chapter 3. Federal Income Tax Rules 3.1 Tax Rules for Tax Nonresidents 3.2 Tax Rules for Tax Residents 3.3 Tax Rules for Dual-Status Aliens Chapter 4. Compensation for Services 4.1 Benefits in Kind 4.2 Distinguishing Compensation from Other Payments 4.3 Source of Income for Services 4.4 Special Withholding Rules for Tax Nonresidents 4.5 Social Security and Medicare Taxes Chapter 5. Scholarships and Fellowships 5.1 Grants Requiring Services 5.2 Distinguishing Scholarships and Fellowships 5.3 Source of Income from Grants 5.4 Qualified Scholarships and Fellowships 5.5 Qualified Tuition Reductions 5.6 Nonqualified Scholarships 5.7 Taxation of Nonqualified Scholarships and Fellowships 5.8 Making Tax Deposits 5.9 Reporting Requirements 5.10 Other Students Chapter 6. Income Tax Treaty Benefits 6.1 How Tax Treaties Work 6.2 Remittances and Allowances from Abroad 6.3 Benefits for Scholarship and Fellowship Grants 6.4 Benefits for Compensation for Services 6.5 Unique Benefits for Certain Foreign Students 6.6 Benefits for Other Types of Income 6.7 Withholding Certificates for Treaty Exempt Income Chapter 7. Form 1042 and 1042 S Reporting 7.1 Form 1042 S Information Return 7.2 Coordinating Form 1042-S with Form W 2 Reporting 7.3 Form 1042 Tax Return

Chapter 8. State Income Taxes 8.1 Domicile 8.2 Residence 8.3 State Tax Rules 8.4 Income Tax Treaty Exemptions Chapter 9. U.S. Tax Returns 9.1 Federal Tax Returns for Tax Nonresidents 9.2 Elections 9.3 Federal Tax Returns for Tax Residents 9.4 Dual-Status Tax Return 9.5 VITA Programs 9.6 Sailing Permit Requirement 9.7 State Tax Returns Chapter 10. Individual Taxpayer Identification Numbers 10.1 Individuals Eligible for ITINs 10.2 Documentation Requirements 10.3 Application-Submission Procedures 10.4 Acceptance Agents 10.5 Acceptance Agent Application Procedures Chapter 11. Resources 11.1 Websites 11.2 IRS Publications PART VI. L-1 INTRACOMPANY TRANSFEREES ON U.S. ASSIGNMENT Chapter 1. Introduction 1.1 Work Authorization 1.2 Taxpayer Identification Numbers Chapter 2. U.S. Tax Residency Rules 2.1 Residency Status Based on U.S. Presence 2.2 Nonresidency Status Claims Based on an Income Tax Treaty Chapter 3. Residency Start and Termination Dates 3.1 Residency Start Date 3.2 Tax Residency Elections 3.3 Residency Termination Date Chapter 4. Federal Income Tax Rules 4.1 Tax Rules for Nonresidents 4.2 Tax Rules for Residents 4.3 Tax Rules for Dual-Status Aliens 4.4 Stock Ownership in a Foreign Corporation Chapter 5. Income Tax Treaty Benefits 5.1 U.S.-Source FDAP Income 5.2 Employment Compensation 5.3 Pension Contributions Chapter 6. State Income Taxes 6.1 Domicile 6.2 Residence 6.3 State Tax Rules 6.4 Income Tax Treaty Exemptions

Chapter 7. Withholding and Reporting 7.1 Temporarily-Away-From-Home Expenses vs. Relocation Expenses 7.2 Other Payments 7.3 Federal Income Tax Withholding 7.4 Social Security and Medicare Taxes 7.5 State Income Taxes Chapter 8. U.S. Tax Returns 8.1 Sailing Permits 8.2 Federal Tax Returns 8.3 State Tax Returns Chapter 9. Individual Taxpayer Identification Numbers 9.1 Individuals Eligible for ITINs 9.2 Documentation Requirements 9.3 Application Submission Procedures 9.4 Acceptance Agents 9.5 Acceptance Agent Application Procedures Chapter 10. Resources 10.1 Websites 10.2 IRS Publications PART VII. WHAT YOU NEED TO KNOW ABOUT EXCHANGE VISITORS Chapter 1. Introduction 1.1.Program Participants 1.2 J Program Categories 1.3 Admission Procedures 1.4 Documentation Requirements 1.5 Two-Year Home Residency Requirement 1.6 Other Requirements Chapter 2. Work Authorization 2.1 J 1 Students 2.2 J 1 Non-Students 2.3 J 2 Dependents 2.4 Employment Eligibility Verification Chapter 3. U.S. Income Taxes 3.1 Taxation of Residents 3.2 Taxation of Nonresidents 3.3 Federal Tax Returns 3.4 State Income Taxes Chapter 4. Employment Taxes 4.1 Special Rules for Nonresidents 4.2 Social Security and Medicare Exemptions 4.3 Au Pairs Chapter 5. Income Subject to Tax 5.1 Compensation for Services 5.2 Source of Income for Services 5.3 Scholarship and Fellowship Grants 5.4 Prizes and Awards 5.5 Royalties

Chapter 6. Resident or Nonresident? 6.1 Days That Do Not Count 6.2 Exempt Individuals 6.3 The Closer-Connection Exception 6.4 Residency Start and Termination Dates Chapter 7. Tax Administration 7.1 Employment Compensation 7.2 Self-Employment Income 7.3 Scholarship and Fellowship Grants 7.4 Wage-Withholding Election 7.5 Personal Exemption Amount Reduction 7.6 Travel-Expense Reimbursements 7.7 U.S. AID Per Diems 7.8 Other Income Payments 7.9 Depositing Withheld Taxes 7.10 U.S. Taxpayer Identification Numbers 7.11 Form 1042 Tax Return Chapter 8. Tax Treaty Benefits 8.1 Taxes Covered 8.2 Tax Residency Requirement 8.3 Income Eligible for Benefits 8.4 Benefit Limitations 8.5 IRS Policy Limitations 8.6 Saving Clause and Exceptions 8.7 Treaty Claims 8.8 Reporting Chapter 9. Resources 9.1 Websites 9.2 IRS Publications PART VIII. J-1 NON-STUDENT EXCHANGE VISITORS PERFORMING U.S. SERVICES Chapter 1. Introduction 1.1 Work Authorization 1.2 Taxpayer Identification Numbers Chapter 2. U.S. Tax Residency Rules 2.1 Residency Status Based on U.S. Presence 2.2 U.S. Days That Do Not Count 2.3 Two-out-of-Seven Calendar-Year Rule 2.4 Nonresidency Under the Closer Connection Exception 2.5 Nonresidency Status Based on an Income Tax Treaty Chapter 3. Residency Start and Termination Dates 3.1 Residency Start Date 3.2 Tax Residency Elections 3.3 Residency Termination Date Chapter 4. Changing to Another Immigration Status 4.1 Changes to H-1B Status 4.2 Changes to F-1 or J-1 Student Status

Chapter 5. Federal Income Tax Rules 5.1 Tax Rules for Tax Nonresidents 5.2 Tax Rules for Tax Residents 5.3 Tax Rules for Dual-Status Aliens 5.4 Stock Ownership in a Foreign Corporation Chapter 6. Income Tax Treaty Benefits 6.1 How Tax Treaties Work 6.2 Fellowship Grant vs. Compensation 6.3 Student/Trainee Articles 6.4 Teacher/Researcher Articles 6.5 Income from Self-Employment Article 6.6 Income from Employment Article Chapter 7. State Income Taxes 7.1 Domicile 7.2 Residence 7.3 State Tax Rules 7.4 Income Tax Treaty Exemptions Chapter 8. Withholding and Reporting 8.1 Benefits in Kind 8.2 Special Withholding Rules for Tax Nonresidents 8.3 Treaty-Exempt Income 8.4 Social Security and Medicare Taxes 8.5 State Income Taxes Chapter 9. J 1 Nonstudents Paid by a Foreign Employer 9.1 Section 872(b)(3) Exceptions 9.2 Commercial Traveler Exception 9.3 Social Security and Medicare Taxes Chapter 10. U.S. Tax Returns 10.1 Sailing Permit Requirementv 10.2 Federal Tax Return 10.3 Treaty Claims 10.4 State Tax Returns Chapter 11. Individual Taxpayer Identification Numbers 11.1 Individuals Eligible for ITINs 11.2 Documentation Requirements 11.3 Application Submission Procedures 11.4 Acceptance Agents 11.5 Acceptance Agent Application Procedures Chapter 12. Resources 12.1 Websites 12.2 IRS Publications PART IX. TAX TREATY BENEFITS FOR FOREIGN NATIONALS PERFORMING U.S. SERVICES Chapter 1. Introduction 1.1 Source of Authority 1.2 The Treaty Negotiation Process 1.3 Current U.S. Income Tax Treaties 1.4 Application to Territories 1.5 Where to Find Tax Treaties

1.6 Treaty Interpretations 1.7 Competent Authority Chapter 2. Treaty Structure 2.1 Treaty Terms 2.2 How Tax Treaties Work 2.3 Articles Conferring Benefits 2.4 Other Provisions Limiting Benefits Chapter 3. Residency 3.1 Tax Residence 3.2 Residency Definition 3.3 Dual Residents 3.4 Timing of Treaty Country Residence 3.5 Saving Clause 3.6 Exceptions to the Saving Clause Chapter 4. Taxes Covered 4.1 Definition 4.2 Social Security Taxes 4.3 State Income Taxes Chapter 5. Special Tax Rules 5.1 Remittance Tax Rule 5.2 Withholding Provisions 5.3 Computation of Tax Chapter 6. Income from Self-employment and Employment 6.1 Income from Self-employment 6.2 Income from Self-employment Treated as Business Profits 6.3 Honoraria 6.4 Directors' Fees 6.5 Income from Employment 6.6 Income from Stock Options 6.7 International Shipping and Air Transportation 6.8 Technical Workers from India 6.9 Governmental Service 6.10 Pension Payments 6.11 Relationship to Other Articles Chapter 7. Artists and Athletes 7.1 Scope of Tax Exemption 7.2 Amounts Covered 7.3 Limitations 7.4 Special Rules for Canadian Athletes 7.5 Relationship to Other Articles 7.6 Withholding Requirements Chapter 8. Students and Trainees 8.1 Payments from Abroad 8.2 Purpose of the Visit 8.3 Fellowship Grant vs. Compensation 8.4 Educational Institution Requirement 8.5 Treaty Exempt Compensation 8.6 Limitations 8.7 Successive Student/Trainee Article Benefits 8.8 Student/Trainee Article Benefits Following Teacher/Researcher Article Benefits 8.9 Residency Election

8.10 Students and Apprentices from India 8.11 Scholarships and Fellowships 8.12 Relationship to Other Articles Chapter 9. Professors, Teachers, and Researchers 9.1 Purpose of the Visit 9.2 Institution Where Teaching or Research Takes Place 9.3 Limitations 9.4 Unique Benefit Periods 9.5 Teacher/Researcher Article Benefits Following Student/Trainee Article Benefits 9.6 Special Considerations for Research Scholars Chapter 10. The IRS Requirement to Reestablish Residency 10.1 Treaty Country Residence Requirement 10.2 Sources of IRS Policy 10.3 Successive Benefits 10.4 Consecutive Treaty Benefits 10.5 Certifying Statements Chapter 11. Withholding, Information Returns, and Tax Returns 11.1 Resident or Nonresident Tax Statusv 11.2 Residency Status Based on U.S. Presence 11.3 Individuals Exempt from Counting Days 11.4 Withholding on Compensation for Services 11.5 Code Exemptions from Withholding on Compensation for Services 11.6 Tax Treaty Exemption from Withholding on Compensation for Services 11.7 Reporting Requirements 11.8 Sailing Permit Requirement 11.9 Federal Tax Return 11.10 State Tax Return Chapter 12. Payments to Parties Other Than the Individual 12.1 Payments to Agents and Intermediaries 12.2 Payments to a Worker's Foreign Employer 12.3 Payments to a Foreign Corporation Owned by a Worker 12.4 Treaty Claims by Groups of Foreign Entertainers 12.5 Payments to Foreign Tax-exempt Entities Immigrant Visas Non-Immigrant Categories Table IRS Tax Code Federal Income Tax Structure Internal Revenue Code References Exceptions for Claiming Personal Exemptions for Nonresidents INS Honoraria Notification Honorarium Payment Eligibility Certification Publication 3609: Filing Information Returns Electronically US Tax Treatment of Temporarily Away-from Home Business Expensesv Permanent Establishment from Nonsales US Services Guidelines For Expatriate Payrolls Automobile Lease Values Foreign-earned Income Tax Worksheets Residency Tax Residency Rules Flowchart 183-Day US Tax Residency Formula and Exceptions

Residency Election Residency Election for Wage Withholding First-year Choice Election US Taxation of Foreign Students Common Errors on Income Tax Returns of Foreign Students Student/Trainee Articles Exempting Income While Gaining Experience Student/Trainee Articles Exempting Scholarship and Fellowship Grants Student/Trainee Articles Exempting Participants in U.S. Government Programs Form 8833: Treaty-Based Return Position Disclosure Under Section 6114 or 7701(b) Evidence of Employment For Foreign Students Treaties/Agreements Income Tax Treaties in Force Territories Covered Territories Not Covered Israel Income Tax Treaty Articles Nondiscrimination Clauses Residency and Tie-Breaker Rule Articles Saving Clauses and Exceptions States Not Allowing Tax Treaty Benefits Income Remittance Rules Income from Self-employment Articles Directors' Fees Articles Income from Employment Articles Artists and Athletes Articles Student/Trainee Articles Exempting Income While Gaining Experience Student/Trainee Articles Exempting Scholarship and Fellowship Grants Student/Trainee Articles Exempting Participants in U.S. Government Programs Student/Trainee Articles Exempting Earned Income of Employees of Treaty Country Residents Teacher/Researcher Articles Teacher/Researcher Articles with a One-time Use Limitation Teacher/Researcher and Student/Trainee Articles with a Combined Benefit Period Teacher/Researcher and Student/Trainee Articles with a Back-to-Back Limitation Noneducational Institutions Covered by Teacher/Researcher Articles Permanent Establishment (PE) from Nonsales U.S. Services North American Free Trade Agreement (NAFTA) Schedule 1 Permitted B-1 Activities Social Security (Totalization) Agreements Attachment to Form W-9 Tax Treaty Claim by a US Person International Organizations Sample Letters Letter to Request a Certificate of Coverage IRS Publications Publication 15, Circular E, Employer's Tax Guide Publication 54, Tax Guide for U.S. Citizens and Resident Aliens Abroad Publication 463, Travel, Entertainment, Gift, and Car Expenses Publication 514, Foreign Tax Credits for Individuals Publication 515, Withholding of Tax on Nonresident Aliens and Foreign Entities Publication 516, U.S. Government Civilian Employees Stationed Abroad Publication 517, Moving Expenses Publication 519, U.S. Tax Guide for Aliens Publication 521, Moving Expenses Publication 570, Tax Guide for Individuals With Income From U.S. Possessions Publication 901, U.S. Tax Treaties Publication 970, Tax Benefits for Education

Publication 1546, The Taxpayer Advocate Service -- How to Get Help with Unresolved Tax Problems Publication 1586, Reasonable Cause Regulations and Requirements for Missing and Incorrect Name/TIN Publication 1915, Understanding Your IRS Individual Taxpayer Identification Number Publication 3609: Filing Information Returns Electronically

The Employer's Immigration Compliance Desk Reference

Author: Gregory H. Siskind

Contributing Author: Jonathan Marks Co-Published By Society for Human Resource Management (SHRM) and

ILW.COM

The Employer's Immigration Compliance Desk Reference will help human resource managers, immigration counsel, and others charged with the task of guiding employers through these turbulent immigration waters. Statutes and regulations are discussed in an easy-to-understand, question-and-answer format with illustrations, checklists, and sample documents included helping you implement or improve your immigration compliance program AUTHOR Greg Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at [email protected]

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Detailed Table of Contents

List of Commonly Used Abbreviations Introduction Acknowledgments Part I: Complying With Immigration Laws Chapter 1. Form I-9 General Concepts 1.1 What is the basis for employment verification? 1.2 Which governmental agency regulates compliance with the employer sanctions rules under IRCA? 1.3 What is a Form I-9? 1.4 When must the I-9 form be completed? 1.5 What if an employee is being hired for less than a three-day period? 1.6 In a nutshell, what are an employer's Form I-9 requirements? 1.7 Are employers the only entities required to verify employment eligibility using Form I-9? 1.8 What is the employee's responsibility in completing the Form I-9? 1.9 Are there any employees not required to complete a Form I-9? 1.10 What if an employee is a volunteer or paid in ways other than with money? What if an employee receives a signing bonus prior to starting work? 1.11 Is a new I-9 required for employees who are transferred within a company? 1.12 Do independent contractors need to complete a Form I-9? 1.13 Are domestic service employees (such as housekeepers, kitchen help, and gardeners) required to complete I-9s? 1.14 Under what circumstances would a returning employee not be required to complete a new Form I-9? 1.15 Are employees who return to work after a labor dispute required to complete a new Form I-9? 1.16 Are seasonal employees required to reverify their Form I-9s? 1.17 Are there special rules for employer associations? 1.18 Do employers of part-time employees need to complete I-9s for those employees? 1.19 Can an employer require job applicants to complete Form I-9s? 1.20 What privacy protections are accorded employees when they complete Form I-9? 1.21 Which foreign nationals are always authorized to work in the United States? 1.22 Which foreign nationals are sometimes authorized to work in the United States? Chapter 2. Completing the I-9 Form 2.1 Where can I obtain a Form I-9? 2.2 Is Form I-9 available in different languages? 2.3 Which version of Form I-9 can an employer accept? 2.4 What documentation can an employee present that shows both identity and employment authorization? 2.5 What documentation can an employee present solely to provide the employee's

identity? 2.6 What documentation can an employee present solely to provide the employee's authorization to work? 2.7 Where can an employer find illustrations of acceptable documents in Lists A, B, and C? 2.8 May an employer specify which documents it will accept? 2.9 When will a Form I-20 presented by an F-1 student prove employment authorization? 2.10 When will a Form DS-2019 presented by a J-1 exchange visitor prove employment authorization? 2.11 Can a translator be used by an employee to assist with completing the form? 2.12 What if an employee states in Section 1 that he or she has a temporary work authorization, but presents a List C document that does not have an expiration date? 2.13 Are there employees who may properly check the box in Section 1 indicating they are an alien without permanent residency in the U.S. but who do not have an expiration date for their status? 2.14 If an employee provides an alien number (A number) in Section 1 but presents documents without the alien number can the employer ask to see the document with the alien number? 2.15 What if an employee claims to be a U.S. citizen in Section 1 but presents a "green card" as documentation of identity and work authorization? 2.16 What if a person claims to be a lawful permanent resident in Section 1 but provides a U.S. passport or birth certificate as documentation of status? 2.17 What types of expired documents may be accepted? 2.18 What types of SSA documents may be accepted? 2.19 Are receipts for documents acceptable? 2.20 Can an employee present photocopies of documents rather than original documentation? 2.21 What should a permanent resident still waiting on the actual permanent residency card to arrive present? 2.22 What documentation should a refugee present to document authorization to work? 2.23 What if the document presented by the employee does not look valid? 2.24 What if the name of the employee on the document is different from the name of the employee on the Form I-9? 2.25 What if the employee does not look like the person on the presented document or appears different from the description of the person on the document (hair color, eye color, height, race, etc.)? 2.26 May an employer correct Form I-9s after they are completed? 2.27 Are employees required to supply an SSN on a Form I-9? 2.28 Are there special rules for minors? 2.29 Are there special rules for individuals with handicaps? 2.30 What are the various examples of Form I-9 documents? Chapter 3. Reverification 3.1 What are the Form I-9 reverification requirements? 3.2 What if the reverification section of the form has been filled out from a prior reverification?

3.3 Can an employee present a Social Security card to show employment authorization at reverification when they presented an expiring EAD or I-94 form at the time of hire? 3.4 What if a new Form I-9 comes out between the date the initial Form I-9 is completed and the time of reverification? 3.5 Do prior employees resuming work with a company need to complete a new Form I-9? 3.6 What if a rehired employee is rehired after a new version of the Form I-9 is released? 3.7 What are examples of correctly completed I-9 forms? 3.8 What are examples of I-9s with errors? Chapter 4. Recordkeeping 4.1 What are the Form I-9 recordkeeping requirements? 4.2 When can Form I-9 be destroyed? 4.3 Should recordkeeping be centralized at a company? 4.4 Does an employer need to keep copies of the documents presented by the employee? 4.5 Can a Form I-9 completed on paper be stored in another format? 4.6 Should Form I-9 records be kept with the personnel records? Chapter 5. Electronic I-9 Systems 5.1 Can a Form I-9 be completed electronically? 5.2 Why would companies want to switch to electronic I-9 systems? 5.3 Are there downsides to using an electronic I-9 system? 5.4 What requirements must electronic I-9 systems meet? 5.5 How is an electronic Form I-9 "signed" by an employee and employer? 5.6 What are the Form I-9 recordkeeping requirements for electronic I-9s? 5.7 What privacy protections are accorded employees when they complete Form I-9 electronically? 5.8 How does an employer who uses an electronic I-9 system respond to an ICE audit? 5.9 Can a company using an electronic I-9 system batch load data to E-Verify? 5.10 Can employers convert existing I-9s to an electronic format? 5.11 Where can I find out which companies offer electronic Form I-9 products and services? Chapter 6. Knowledge of Unlawful Immigration Status 6.1 What if an employer knows an employee is not authorized to be employed even though the Form I-9 was properly completed? 6.2 When will an employer be considered to have "constructive knowledge"? 6.3 What if an employee later presents an SSN different from the SSN provided when the I-9 was completed? 6.4 Is an employer on notice that an employee is not authorized to work if the employee requests that the employer petition for the employee's permanent residency? 6.5 What if the employee states in Section 1 that he or she is a permanent resident or U.S. citizen, but then presents an employment document with an expiration date? 6.6 Should an employer reverify a Form I-9 for an employee who is subject to a Social Security no-match letter? 6.7 What if an employer receives a DHS notice that there is a problem with a document

presented in connection with a Form I-9? 6.8 What if an employer is told that an employee is unauthorized by another employee? 6.9 Are employers liable if they use a contractor and know the contractor's employees are not authorized to work? 6.10 May an employer be deemed to have constructive knowledge when it failed to complete a Form I-9 for an employee or the form is completed improperly? 6.11 May an employer be deemed to have constructive knowledge when it fails to reverify a Form I-9? Chapter 7. Unfair Immigration Practices 7.1 What are the IRCA antidiscrimination and document abuse rules? 7.2 How is enforcement responsibility split between the OSC and the EEOC? 7.3 How is a complaint made for an IRCA antidiscrimination violation? 7.4 What is "document abuse"? 7.5 What is "citizenship or immigration status discrimination"? 7.6 What is "national origin discrimination"? 7.7 What are examples of prohibited practices? 7.8 Are employees protected from retaliation if they complain about discrimination? 7.9 How does the Civil Rights Act of 1964 provide employees additional protections? 7.10 What is the basis for regulating immigration-related unfair employment practices? 7.11 Can employers discriminate against employees requiring visa sponsorship? 7.12 Can employers discriminate against employees with an expiring EAD? 7.13 What information can be requested of an individual prior to the commencement of employment? 7.14 Who is a "protected individual" under IRCA and can an employer discriminate against those not included? 7.15 Can an employer maintain a policy of only employing U.S. citizens? 7.16 Can an employer require employees to post indemnity bonds against potential liability under IRCA? 7.17 Can an employer request DHS' verification of the status of the employee when it is not sure whether documents for a new hire are valid? 7.18 Who may file a complaint under IRCA against an employer for violations of the employer sanctions rules? 7.19 What is the procedure to file a complaint under IRCA against an employer for violation of the antidiscrimination rules? What about a complaint under Title VII? 7.20 How does the OSC investigate complaints? 7.21 How many complaints does the OSC receive each year? Chapter 8. Penalties and Other Risks 8.1 What penalties does an employer face for Form I-9 violations? 8.2 What are the penalties for unlawful discrimination? 8.3 Can employers who tried in good faith to comply avoid penalties? 8.4 Which cases must be investigated by ICE? 8.5 What is the process for imposing penalties? 8.6 Are entities at a company liable in addition to the one division targeted for penalties? 8.7 Does ICE have to provide advance notice of a Form I-9 audit?

8.8 In what format must Form I-9s be provided to ICE auditors? 8.9 What if records are kept at a location different from where the ICE agents will be visiting? 8.10 Can an employer be penalized if they properly completed an I-9, but the employee turns out to be unauthorized? 8.11 Aside from penalties under IRCA, are there other risks associated with not properly completing I-9s? Chapter 9. IRCA Compliance Tips 9.1 What are the best ways to prevent being prosecuted for I-9 employer sanctions violations? 9.2 What are the best ways to avoid immigration-related employment discrimination? 9.3 Should a company have an IRCA compliance officer? 9.4 Should a company have an IRCA compliance policy? 9.5 Should companies have special Form I-9 policies for dealing with outside contractors? 9.6 How do mergers, acquisitions, and other major changes affect Form I-9 requirements? 9.7 Can an employer who does not wish to assume an acquired company's liability for Form I-9 violations reverify the entire workforce? 9.8 Are there ICE best hiring practices? 9.9 What is an example of contract language for labor contractors? Chapter 10. Conducting an I-9 Self-Audit 10.1 What should be asked when preparing for an I-9 audit? 10.2 Should employers prepare a spreadsheet for an I-9 audit? 10.3 Should employers prepare an I-9 audit checklist? Chapter 11. E-Verify, IMAGE, and SSNVS 11.1 What is E-Verify? 11.2 How many employees are typically run through E-Verify in a year? 11.3 Who administers E-Verify? 11.4 How does E-Verify work? 11.5 How does E-Verify handle H-1B portability cases? 11.6 What computer requirements are necessary to use E-Verify? 11.7 Can a company batch load data to E-Verify? 11.8 What is the required timetable for using E-Verify? 11.9 Does E-Verify tell an employer anything about the immigration status of a new hire? 11.10 What is E-Verify's photo screening tool? 11.11 What information does an employer need to supply for each employee? 11.12 What about employees who don't have SSNs yet? 11.13 What happens if E-Verify issues a nonconfirmation finding? 11.14 Can employers selectively choose which employees are verified in the electronic system? 11.15 Can an employer prescreen job applicants through E-Verify? 11.16 Is E-Verify voluntary?

11.17 What if a company does not have a computer or Internet access? Can a third-party agent be used to manage E-Verify filings? 11.18 What is an E-Verify corporate administrator? 11.19 How does an employer sign up for E-Verify? 11.20 What are the government's obligations with regard to privacy and data security? 11.21 What are the employer's obligations under the MOU? 11.22 Can a large employer have a controlled rollout of E-Verify instead of including every location? Can a large employer change the sites participating? 11.23 What are the benefits of participating? 11.24 Are there risks associated with participating? 11.25 Can an employer verify existing employees as well as new hires? 11.26 Can an employer quit using E-Verify? 11.27 Is an employer protected from an investigation if they use E-Verify? 11.28 What can employees do if they feel they have been subject to discrimination? 11.29 What states require E-Verify? 11.30 What special E-Verify rules apply to student visa holders? 11.31 How reliable is E-Verify in accurately identifying unauthorized employees? What other problems are showing up in the system? 11.32 Is there an alternative available to employers that want to check the authenticity of SSNs of new hires without using E-Verify? 11.33 What is the E-Verify rule for federal contractors? 11.34 How does the federal contractor rule affect contracts signed before the rule took effect? 11.35 Can the requirement to include the E-Verify clause in federal contracts be waived? 11.36 Are any contracts exempt from the new federal contractor rule? 11.37 How much time does a federal contractor employer have to start running employees' names through the E-Verify system? 11.38 Which types of employers only need to verify employees assigned to work on the federal contract? 11.39 Can an employer verify all existing employees under the federal contractor rule as opposed to just employees working on the contract? 11.40 Does a company already enrolled in E-Verify need to re-enroll in order comply with the federal contractor rule? 11.41 What are a company's obligations under the federal contractor rule once the contract is over? 11.42 How does the federal contractor rule treat commercially available off-the-shelf contracts? 11.43 Which employees associated with a work on a contract must be verified under the new federal contractor rule? 11.44 Under the federal contractor rule, how should an employer treat a Form I-9 for an existing employee that is not a current Form I-9? 11.45 Are subcontractors also responsible for participating in E-Verify under the federal contractor rule? 11.46 What is the contractor language that must be included in contracts of employers covered by the federal contractor rule? 11.47 What is IMAGE?

11.48 Will participating in IMAGE guarantee that an employer will not be found liable in an enforcement action? 11.49 What obligations do IMAGE participants face? 11.50 What is the SSNVS? 11.51 What restrictions are placed on employers seeking to use the SSNVS? 11.52 What is the DHS/Employer E-Verify MOU? Chapter 12. Social Security No-Match Letters 12.1 Why did the court block the rule from taking effect? 12.2 How has the DHS attempted to address the court's objections? 12.3 Did the DHS mention any changes to the August 2007 rule in its proposed rule-making? 12.4 Why did ICE issue this rule? 12.5 When was the rule to become effective? 12.6 How has the definition of "knowing" changed in the rule? 12.7 What steps must an employer take if it gets a no-match letter? 12.8 What is the procedure to reverify identity and employment authorization when an employee has not resolved the discrepancy as described above? 12.9 Does an employer need to use the same procedure to verify employment authorization for each employee who is the subject of a no-match letter? 12.10 What if the employer has heard that an employee is unlawfully present aside from hearing from the SSA or the DHS in a no-match letter? 12.11 Does the DHS have the authority to regulate the treatment of notices received by the SSA? 12.12 Why did the DHS issue this rule when the Bush White House supported comprehensive immigration reform that would give employers legal options for hiring these employees? 12.13 Will following the procedures in this rule protect an employer from all claims of constructive knowledge, or just claims of constructive knowledge based on the letters for which the employers followed the safe harbor procedure? 12.14 Are there any special rules for circumstances such as seasonal employees, teachers on sabbatical, and employees out of the office for an extended period due to excused absence or disability? 12.15 What are the time frames required under the rule to take each necessary action after receiving the no-match letter? 12.16 May an employer continue to employ a worker throughout the process noted above? 12.17 What if the no-match letter is sent to the employee, not the employer? 12.18 Does it matter which person at the employer receives the letter? 12.19 Does verification through systems other than that described in this rule provide a safe harbor? 12.20 Does an employer filing a labor certification or employment-based "green card" application have constructive knowledge that an employee is unauthorized? 12.21 Does an employer have to help an employee resolve the discrepancy with the SSA or the DHS? 12.22 In what manner must employers retain records required under the new rule?

12.23 If a new I-9 is prepared based on this rule, does that affect the amount of time the I-9 must be retained? 12.24 Doesn't requiring an employee to fill out a new I-9 form per this rule constitute document abuse? 12.25 Won't this rule lead to massive firings across the country? 12.26 Will an employer be liable for terminating an employee who turns out to be work authorized if they get a no-match letter? 12.27 What if the employee is gone by the time the no-match letter arrives? Chapter 13. Mergers and Acquisitions 13.1 Generally speaking, how does immigration law factor into a merger, acquisition, or other major corporate transaction? 13.2 What is the major immigration risks associated with a merger, acquisition, or other major corporate transaction? 13.3 What immigration law concepts come into play when discussing mergers and acquisitions? 13.4 How are H-1B visas affected by mergers and acquisitions? 13.5 What impact do mergers, acquisitions, and other major corporate transactions have on TN visas? 13.6 How are L-1 intracompany transfers affected by mergers, acquisitions, and other major corporate transactions? 13.7 How are E visas affected by mergers, acquisitions, or other major corporate transactions? 13.8 How are permanent residency applications affected by mergers, acquisitions, and other major corporate transactions? 13.9 How are Form I-9s affected by a merger, acquisition, or other major corporate transaction? 13.10 What are some general tips from employers going through a merger, acquisition, or other major corporate transaction? 13.11 What are examples of immigration due diligence and boilerplate contract language? Chapter 14. Criminal Law and Employer Immigration Law Compliance (with Jonathan L. Marks) 14.1 Which agency is responsible for worksite enforcement operations? 14.2 On what grounds are criminal arrests being made and criminal charges being brought in worksite enforcement operations? 14.3 What types of employers are more likely to be targeted? 14.4 What is the difference between an administrative arrest and a criminal arrest? 14.5 Are employees of a company who are not owners potentially liable for criminal violations? 14.6 What is the offense of "unlawfully employing illegal aliens"? 14.7 What are the penalties for "unlawfully employing illegal aliens"? 14.8 What defenses may be available to the charge of "unlawfully employing illegal aliens"? 14.9 What is the crime of "bringing in and harboring" unauthorized immigrants? 14.10 What are the potential penalties for "bringing in and harboring" unauthorized

immigrants? 14.11 What is the crime of hiring more than 10 unauthorized immigrants? 14.12 What is the penalty for hiring more than 10 unauthorized immigrants? 14.13 What crimes involving false statements have been used to charge employers in cases involving unauthorized immigrants? 14.14 What is the penalty for making false statements? 14.15 What fraud and identity theft offenses potentially apply to employers of unauthorized immigrants? 14.16 What penalties may be imposed on employers convicted of document fraud and identity theft? 14.17 What is the crime of mail fraud? 14.18 What is the crime of wire fraud? 14.19 What are the potential penalties for mail fraud and wire fraud? 14.20 What is the crime of money laundering and how does it apply to employers? 14.21 What are the penalties for money laundering? 14.22 What is the crime of fraud and misuse of visas and permits? 14.23 What are the penalties for fraud and misuse of visas and permits? 14.24 What is "misuse of an SSN"? 14.25 What is the penalty for "misuse of an SSN"? 14.26 What is RICO? 14.27 What are the penalties for violation of the RICO Act? 14.28 What types of penalties are typically being imposed on employers convicted in connection with unauthorized immigrants? 14.29 What is "seizure and forfeiture"? 14.30 Is it more likely ICE will pursue a worksite enforcement charge or a criminal investigation? 14.31 What should you do if an ICE agent arrives at your place of business in connection with an investigation of immigration violations? Chapter 15. Layoffs and Downsizing 15.1 What are the immigration related consequences of layoffs on alien employees in nonimmigrant status? 15.2 What should a non-immigrant employee do if they fall out of legal status? 15.3 Is there a grace period allowing a period of time for an H-1B worker to find a new position without being considered out of status? 15.4 What are the immigration related consequences of layoffs on alien employees with pending green card applications? 15.5 What are the immigration related consequences of layoffs on alien employees who are already permanent residents? 15.6 What are the immigration related consequences of layoffs on employers employing foreign nationals? 15.7 What are some proactive strategies for preventing negative immigration consequences for employers and employees during downsizing? Chapter 16. State Employer Immigration Laws 16.1 What types of immigration laws and compliance requirements are in my state?

Arizona AZ.1 How are complaints investigated in Arizona? AZ.2 What are the penalties if an employer is found to have violated the Arizona law? AZ.3 Are there any safe harbors in the bill? AZ.4 How does Arizona define "knowingly"? AZ.5 Who is an "an unauthorized alien"? AZ.6 Is an employer liable for work performed by independent contractors? AZ.7 Do existing employees need to be run through E-Verify to satisfy the Arizona law? AZ.8 What steps can a company take to reduce the likelihood of being found to have violated the new Arizona law? AZ.9 The May 2008 revisions to the Arizona employer sanctions law made changes to the state's identity theft rules that relate to the employment of unauthorized employees. What were those changes? AZ.10 What penalties do employer receiving economic development incentives face for violating the Arizona sanctions law? AZ.11 What are Arizona's special sanctions rules for employers paying in cash? AZ.12 How does Arizona regulate government procurement contracts for employers with IRCA violations? Arkansas AR.1 What does the Arkansas law bar? AR.2 When did the Arkansas law take effect? AR.3 Who is an "illegal immigrant" under the law? AR.4 Who is a contractor under the Arkansas law? AR.5 Are all contracts covered? AR.6 Are all agencies in Arkansas covered? AR.7 How do contractors show they have not hired unauthorized employees? AR.8 What if it is determined that a contractor has hired "illegal immigrants"? AR.9 Does it matter if a contractor is using the services of individuals hired by a subcontractor? AR.10 Does the law require employers that have contracts with the state to use E-Verify? Colorado CO.1 What does H.B. 06-1343 bar? CO.2 When did H.B. 06-1343 take effect? CO.3 Who is an "illegal alien" under the law? CO.4 Who is a "contractor" under the Colorado law? CO.5 Are all contracts covered? CO.6 Are all agencies in Colorado covered? CO.7 How do contractors show they have not hired unauthorized employees? CO.8 What if it is determined that a contractor has hired "illegal aliens"? CO.9 Does the law require employers contracting with the state to use E-Verify? CO.10 Does it matter if a contractor is using the services of individuals hired by a subcontractor? CO.11 If an employer is found to have violated the law, how long will the employer remain on the list of employers barred from doing business with the state?

CO.12 What type of investigative authority does the state have under this law? CO.13 What does H.B. 06S-1001 require? CO.14 How does the Colorado Economic Development Commission (CEDC) determine that an employer is in compliance with IRCA? CO.15 What happens when the CEDC determines an employer is out of compliance? CO.16 Do employers have any right to argue against the determination of the CEDC? CO.17 What does H.B. 06S-1017 do? CO.18 What facts must the employer state in its affirmation? CO.19 When did the law go into effect? CO.20 What enforcement powers does the state have under this law? CO.21 What penalties are faced by an employer who violates the law? CO.22 What does H.B. 06S-1015 do? CO.23 When does the law take effect? CO.24 What does H.B. 06S-1020 do? CO.25 Are there exceptions to the law? Georgia GA.1 What does Georgia do with respect to E-Verify? GA.2 What is a "public employer"? GA.3 When did this change take effect? GA.4 What does the bill do with respect to deduction of wages paid by employers to unauthorized employees? GA.5 What are the changes made with respect to withholding state income tax? Idaho ID.1 What does the executive order do? Illinois IL.1 What are H.B.1743's antidiscrimination rules? IL.2 What types of immigration-related practices does H.B. 1743 bar? IL.3 When did H.B. 1743 go into effect? IL.4 H.B. 1744 prohibits participating in the E-Verify program. When will this prohibition be lifted? IL.5 The DHS is fighting Illinois on this legislation. What is the status of that court fight? IL.6 What type of attestation must employers make once they are permitted to participate in E-Verify? IL.7 Where are these notices to be posted? IL.8 What are an employer's responsibilities in Illinois if they use E-Verify? IL.9 Which employees must complete the computer-based tutorial on using E-Verify? IL.10 What other responsibilities do employers who use E-Verify have under the Illinois law? IL.11 Are state agencies affected by the new law? Iowa IA.1 What does Senate File 562 do? IA.2 When did the law take effect?

Massachusetts MA.1 What does the executive order do? MA.2 Are employers subjected to any new requirements under the executive order? MA.3 What provisions must be added to contracts between employers and state agencies? Michigan MI.1 How does Michigan regulate state government contractors? Minnesota MN.1 What does the executive order do? MN.2 Are there new rules for business licenses under the executive order? MN.3 Are employers who use E-Verify treated differently with respect to being punished for hiring unauthorized employees? MN.4 How does the executive order deal with ensuring the order is carried out? MN.5 What other provisions are in the executive order that affect employers? Mississippi MS.1 What is the new law regarding employing workers unauthorized to work? MS.2 What is the state's new E-Verify mandate? MS.3 What penalties do employers face for violating Mississippi law? MS.4 Are there any "safe harbors" for employer? MS.5 What are the obligations of out-of-state employers who send workers into the state? MS.6 How are U.S. citizen workers affected by the new law? MS.7 What is the new felony provision in Mississippi applicable to those accepting unauthorized employment? Missouri MO.1 What does the new law in Missouri say generally with respect to hiring "unauthorized aliens"? MO.2 What is a "federal work authorization program" under H.B. 1549? MO.3 Who is a "public employer"? MO.4 How does H.B. 1549 affect public employers? MO.5 How does H.B. 1549 affect employers contracting with state agencies? MO.6 Is there a safe harbor in H.B. 1549? MO.7 Are businesses liable for the actions of contractors and subcontractors? MO.8 How are complaints filed and handled under H.B. 1549? MO.9 What penalties may a court impose when the attorney general brings an action under H.B. 1549? MO.10 What happens if someone files a frivolous complaint? MO.11 How are employer tax deductions for the wages paid to unauthorized aliens affected? MO.12 Does the new law contain transporting provisions? MO.13 When did H.B. 1549 become effective? MO.14 What does the Executive Order 87- 02 do?

Nevada NV.1 How does Nevada regulate employer compliance? New Hampshire NH.1 How does New Hampshire regulate employer compliance? North Carolina NC.1 When did S.B. 1523 go into force? NC.2 What does the law do? NC.3 Which employers are covered? Oklahoma OK.1 What are OTCPA's transporting and harboring provisions? OK.2 What are the penalties for violating the transporting and harboring provisions? OK.3 What are OTCPA's "status verification system" provisions? OK.4 What is OTCPA's unfair trade practices provision? OK.5 Is there a safe harbor provision under the Oklahoma law? Pennsylvania PA.1 How does Pennsylvania regulate employers who fail to comply with immigration law? Rhode Island RI.1 What does the executive order require of state employers? RI.2 What does the executive order state with regard to private employers doing business with state agencies? South Carolina SC.1 What obligation does the new law impose on government employers? SC.2 What obligations does the new law impose on employers engaged in contracts with state agencies? SC.3 Are there requirements applicable to all private employers? SC.4 How are complaints against private employers investigated and violations punished? SC.5 What is the new "employment license" created by the new law? SC.6 When does the new law take effect? SC.7 Is there a safe harbor for employers in the new law? SC.8 Are there penalties for those filing false complaints? SC.9 What is the new requirement for reporting violations? SC.10 What does the new law change with respect to deducting wages paid to unauthorized employees? SC.11 What is the new transporting bar contained in the new law? SC.12 What does the new law change with regard to identity theft? SC.13 Does the law give any rights to discharged U.S. workers?

Tennessee TN.1 How does Tennessee define "knowingly" Public Chapter No. 529? TN.2 Who is an "illegal alien"? TN.3 How does the commissioner of Labor and Workforce Development (LWD) determine when to go after a company? TN.4 If the commissioner determines there is evidence the new law has been violated, what is the process that occurs before a company's business license is affected? TN.5 If the business license is revoked, how can it be reinstated? TN.6 What happens if a subsequent violation is found to have occurred? TN.7 Is there an appeals process? TN.8 Is an employer liable for work performed by independent contractors? TN.9 Are there any safe harbors in the bill? TN.10 What steps can a company take to reduce the likelihood of being found to have violated Tenn. Code Ann. §50-1-103? TN.11 Are there other Tennessee laws covering employers and immigration? TN.12 What limits does Public Chapter No. 878 impose on state agencies? TN.13 What happens if a contractor is found to have employed an "illegal alien"? TN.14 How are state agencies to ensure compliance? TN.15 How often must the attestation be updated? TN.16 When did the law go into effect? TN. 17 What does Public Chapter No. 220 do? Texas TX.1 What does H.B. 1196 do? TX.2 Does the law apply to companies related to the company receiving the subsidy? TX.3 How is "public subsidy" defined? TX.4 How is "undocumented worker" defined? TX.5 What happens if a business violates its certification? TX.6 When did the law become effective? Utah UT.1 What is the new verification requirement for state agency employers in Utah? UT.2 What new requirements are imposed on contractors doing business with state agencies? UT.3 When does the requirement that contractors use a status verification system take effect? UT.4 Is the contractor responsible for the work of other contractors or subcontractors? UT.5 How are U.S. citizen workers affected by the new law? UT.6 What are the new Utah law's transporting and harboring provisions? UT.7 What are the penalties for violating the transporting and harboring provisions? UT.8 Are there exceptions to the transporting and harboring provisions? UT.9 When does the transporting and harboring law take effect? Virginia VA.1 What kinds of violations will trigger a termination of the right to do business in the state?

VA.2 What does S.B. 517 say with respect to contractors? VA.3 What changes are made regarding public agencies? West Virginia WV.1 What does S.B. 70 do? WV.2 What penalties are faced by employers who violate the law? WV.3 How does S.B. 70 affect business deductions for unauthorized employees' salaries? WV.4 Can a business license be revoked under S.B. 70? Part II: An Overview of the U.S. Immigration System Chapter 17. Nonimmigrant Visas 17.1 What are the five major immigration status/visa categories? 17.2 What are the major types of nonimmigrant visas and to whom are they available? 17.3 What kinds of questions are relevant for H-1B visa applicants? 17.4 How long is the H-1B visa valid? 17.5 Can an H-1B visa holder also apply for a "green card"? 17.6 Are spouses or children of H-1B visa holders permitted to work? 17.7 Are H-1B visa holders required to maintain ties to their home countries? 17.8 How many H-1B visas are provided each year? 17.9 Are H-1B visa holders permitted to change employers? 17.10 Are H-1B visas permitted for self-employment? 17.11 What happens in the event the H-1B applicant lacks an appropriate degree? 17.12 What kinds of questions are relevant for B-1 and B-2 visa applicants? 17.13 How long is the B-1 or B-2 visa valid? 17.14 Are B-1 and B-2 visa holders allowed to work in the United States? 17.15 Nationals from which countries are eligible for the Visa Waiver Program (VWP)? 17.16 What kinds of questions are relevant for F-1 visa applicants? 17.17 What are the requirements for the F-1 visa holder? 17.18 Can an F-1 visa holder work in the U.S. after completing an educational program? 17.19 What limitations are there on the spouses and children of F-1 visa holders? 17.20 What kinds of questions are relevant for J-1 visa applicants? 17.21 Is there a requirement for J-1 visa holders to return home before switching to another visa? 17.22 What are the time requirements for J-1 visa holders? 17.23 What about employment opportunities in the U.S. for the spouses and children of J-1 visa holders? 17.24 What kinds of questions are relevant for O-1 visa applicants? 17.25 What is the time limit on the issuance of O-1 approvals? 17.26 Are O-1 visa holders required to maintain a residence abroad? 17.27 May O-1 visa holders apply for a "green card"? 17.28 What kinds of questions are relevant for L visa applicants? 17.29 What are the time limits for L visa holders? 17.30 Are "green cards" easy to get for L visa holders? 17.31 Are spouses of L visa holders allowed to work? 17.32 Which type of employee has a difficult time getting an L visa? 17.33 What kinds of questions are relevant for E-1 and E-2 visa applicants?

17.34 What are the time limits for E visa holders? 17.35 Are spouses of E visa holders allowed to work? 17.36 What is the impact of permanent residency applications on E visas holders? 17.37 What kinds of questions are relevant for R visa applicants? 17.38 What is the time limit for R visa holders? 17.39 At what point may R visas convert to "green cards"? 17.40 Has the USCIS changed the process to acquire an R visa recently? 17.41 What kinds of questions are relevant for TN visa applicants? 17.42 What is the time limit for TN visa holders? 17.43 Are TN Visa holders required to demonstrate an intent to immigrate to the United States? 17.44 How do Canadians apply for TN visa status? 17.45 How do Mexicans apply for TN visa status? 17.46 Where are TN visa extensions and change of status applications filed? 17.47 Are degrees in a field required? 17.48 What kinds of questions are relevant for E-3 visa applicants? 17.49 Do E-3 applicants require advanced USCIS approval? 17.50 May spouses of E-3 visa holders be eligible for an EAD? 17.51 Is a Labor Condition Application (LCA) required of the E-3 visa holder? 17.52 What is the time limit for E-3 visa holders? 17.53 Are the nonimmigrant visas listed in No 16.2 above a complete listing? Chapter 18. Immigrant Visas (the "Green Card") 18.1 What are the four basic categories of immigrant visas? 18.2 What kinds of questions and waiting periods are relevant for Family-Sponsored Immigrants? 18.3 How are these waiting periods determined? 18.4 What's the implication of marriage to a U.S. citizen? 18.5 Can a person convert from one immigrant preference or immediate relative category to another? 18.6 What kinds of questions are relevant for Diversity Visa (DV) applicants? 18.7 What kinds of issues are relevant to the DV "Green Card" lottery? 18.8 What kinds of questions are relevant for the EB-1-1 "green card"? 18.9 Is employment necessary to get the EB-1-1 "green card"? 18.10 What kinds of questions are relevant for the EB-1-2 "green card"? 18.11 Is the EB-1-3 "green card" identical to the L-1 visa? 18.12 What kinds of questions are relevant for the EB-2 "green card"? 18.13 What is the processing time for the EB-2 "green card"? 18.14 Is employment a requirement for the EB-2 application? 18.15 Who is eligible for the EB-3 "green card"? 18.16 What is the subcategory of the EB-3 "green card"? 18.17 Is the EB-4 "green card" the same as the R-1 visa? 18.18 What kinds of questions are relevant for the EB-5 "green card"? 18.19 What does the USCIS consider when granting the EB-5?

Chapter 19. Asylees and Refugees 19.1 What are asylees and refugees? 19.2 What is the difference between an asylee and a refugee? 19.3 Are there other protected groups? Appendices A. Notable ICE Worksite Enforcement Operations in 2006-2008 B. M-274, Handbook for Employers C. Electronic I-9 and E-Verify Vendors

THE PERM BOOK II Editor: Joel Stewart

Contributors: Christian Allen, Jonathan Amdur, Davis Bae, Robert E. Banta, Susan L.

Brady, Barbara Brandes, Lorna Rogers Burgess, J. Ira Burkemper, Ramon Carrion, Blake Chisam, Susan J. Cohen, Jeffrey Devore, Victoria Donoghue, Gary Endelman, Jane

Goldblum, Paul Hejinian, Howard Kushner, Christina La Brie, David Lazaar, Katherine Lopez Ley, Edwin Litwin, Benjamin M. Lowe, Joan Matheu, Margaret McCormick, Cyrus D. Mehta,

Lori S. Melton, Nancy Jo-Meritt, Sherry Neal, David B.Pakula, Michael E. Piston, Edwin Rubin, Linda Rose, Lawrence Rudnick, Rebecca L. Sigmund, Jay Solomon, Timothy

Spridgeon, Richard Tasoff, Rohit Turkhud, Alison Walters, Nathan A. Waxman, Mitchell L. Wexler, Leon Wildes, Sofia Zneimer

EDITOR

Joel Stewart practices exclusively in the area of immigration law. Mr. Stewart specialized in Romance and Slavic Linguistics before receiving a J.D. from the University of Connecticut School of Law, and is fluent in Portuguese, Spanish, French, and Russian. He is Past President of the South Florida Chapter of the American Immigration Lawyers Association (AILA) and is a nationally recognized authority on employment-based immigration matters as well as a popular speaker at immigration seminars for national and local bar associations throughout the United States. Mr. Stewart is the editor of The Perm Book, the definitive authority on the subject of PERM processing of labor certifications, and has been writing the BALCA Case Summaries since 1987. Mr. Stewart authors official AILA articles and publications such as the Visa Processing Guide for Procedures at U.S. Consulates and Embassies in Brazil and Portugal. He maintains a Blog on PERM issues which appears weekly on ILW.COM, and chairs PERM Workshops and Telephonic Conferences for ILW throughout the year. In addition to heading the Immigration Committee for the Dade County Bar Associationm Mr. Stewart represents the Brazilian Consulate in Miami as Accessor Jurídico and provides extensive pro-bono services for the Consulate's "Assistance to Brazilians" program throughout Florida and in other parts of the United States.

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TABLE OF CONTENTS

PART I. PERM RULE, ANALYSIS, AND COMMENTS A. PERM Regulation B. Articles by PERM Writers

• 656.1 Preparing PERM for 2nd and 3rd Preference by David Nachman and Ludmila Zimovcak

• 656.3 SVP: Discrepancies between the O*Net and the DOT by Lori S. Melton • 656.3 The Method By Which the Bureau of Labor Statistics Converted the DOT

Occupations into the OES Occupational Units or "Here's Another Nice Mess You've Got Us Into by Barbara Brandes

• 656.10(a)-(c) The Basics of Labor Certification Under PERM : What You Need to Know Before You Start by Jeffrey Devore

• 656.10(b) Rights and Obligations of Attorney and Agents Under PERM by Nancy-Jo Merritt

• 656.10(c) Dangers in the Attestation Process by Ramon Carrion • 656.10(c)(10) What is "Permanent" and "Full-Time" Employment by Timothy Spridgeon • 656.10(d), (e) Deconstructing PERM Notice Requirements by Susan J. Cohen • 656.10(f) Preparation of PERM Recruitment Report and Supporting Documentation by

Carl Shusterman and Alison Walters • 656.11 Is Employer "Substitution" Under PERM Dead? by Christian Allen • 656.12 Prohibition on Payment of Attorney's Fees by Paull Hejinian • 656.15(a)-(c) Step-by-Step for Schedule-A Applications by Sherry Neal • 656.15(d) Aliens of Exceptional Ability in the Performing Arts by Howard Kushner • 656.17(a)-(d) Filing, Withdrawing, Refiling, and Tracking PERM Cases by Katherine

Lopez Ley and Davis Bae • 656.17(e)(1)(B)(1)(4) Professional and Trade Journals Under PERM by Nathan Waxman • 656.17(e)(1)(I) Regular Recruitment by Nancy-Jo Merritt • 656.17(e)(ii) PERM Labor Certification Professional Recruitment Steps by Edwin R.

Rubin • 656.17(e)(l)(ii)(A) Note on Online Job Fairs by David Nachman • 656.17(g)(1) Regarding Recruitment Reports by Leon Wildes and David Lazaar • 656.17(g)(2) Ethics: What Do you Do When A Qualified US Worker Applies? by Blake

Chisam • 656.17(h)(1) Business Necessity: "Necessary Arguments" by Sofia Zneimer • 656.17(h)(3) Combination of Occupations under PERM by Nathan Waxman • 656.17(h)(4)(ii) The Impact of PERM On Experience Gained on the Job and Alternative

Experience by Nathan A. Waxman • 656.17(h) Requiring a Foreign Language under PERM by Cyrus D. Mehta • 656.17(i) Nuts & Bolts: Actual Minimum Requirements & Experience Gained on the Job

by Rohit Turkhud • 656.17(i)(3) In-Job Experience: Why we Need it and How We Can Still Get it by Gary

Endelman • 656.17(k) How Do Layoffs Affect PERM? by Margaret McCormick and Patricia Luna • 656.17(l) As If You Owned the Place…Alien Influence and Control Over the Labor

Certification Process by Robert E. Banta and Benjamin M. Lowe • 656.18 College and University Professors: A Hybrid Between Special Handling and

PERM by Victoria Donoghue • 656.19 Domestic Workers: At Home and on the Range by Susan L. Brady • 656.20 How PERM Cases are Selected for Audit by Christina B. LaBrie • 656.20(c) Requesting Extensions of Time to Respond to Audit Requests by Jonathan

Amdur and Susan Anderson

• 656.24 The Who What When Where of Labor Certification Determination by Rebecca Sigmund

• 656.24(b)(2)(i) What You Do After the Ads Have Been Run? Resumes, Interviews, and Results by Edwin R. Litwin

• 656.26 Appeals/Requests For Review Under PERM by Joan Mathieu • 656.27 Preparing Requests for Review with BALCA by Mitchell L. Wexler and J. Ira

Burkemper • 656.30-31 Fraud, Misrepresentation, Validity, Invalidation and Revocation by Richard

Tasoff • 656.32 Revocation of Labor Certification by Michael Piston • 656.40-41 Prevailing Wage Determinations Under PERM by Lawrence Rudnick

C. Editor's Comments to the PERM Rule PART II. FAQ, STAKEHOLDER & LIAISON MEMORANDA A. Frequently Asked Questions (FAQ) by Lawrence Rudnick B. Summary of DOL PERM Stakeholders Meetings by Lorna Rogers Burgess C. Frequently Asked Questions PART III. ETA FORMS, OLD AND NEW A. The New 9089 PERM Form by Linda Rose B. What DOL told OMB about PERM by Jay Solomon C. New ETA Form 9089 and Instructions, Application for Permanent Employment Certification D. Old ETA Form 9089, Application for Permanent Employment Certification E. Old ETA Form 9089, Instructions F. Old ETA Form 9089 Electronic Filing Instructions G. ETA Form 750A H. ETA Form 750B I. ETA Form 750 A and B, Instructions J. ETA Form 9127, Foreign Labor Certification (FLC) Quarterly Activity Report PART IV. ROADMAPS AND CHECKLISTS A. Overview of PERM Cases B. Overall PERM Flow Chart C. Employer Checklist D. Alien Checklist E. Job Offer Checklist F. Attorney/Agent Checklist G. Prevailing Wage Preparation Checklist H. Prevailing Wage Quick Guide I. Recruitment Checklist J. Express SVP Checklist K. PERM Audit Checklist: 10 Important Points L. Real and Virtual PERM Addresses M. What do PERM and H-1B Visas Have in Common? N. Attorney Competency Self-Test O. Sample PERM Cases

1. Job Zone Five, IT Director 2. Job Zone Five, Economist 3. Job Zone Four, Consultant, Foreign Law 4. Job Zone Four, Accounting Coordinator 5. Job Zone Three, Tile Installers Coordinator

PART V. BALCA HANDBOOK

A. Introduction to BALCA by Joel Stewart B. BALCA PERM Quick Reference Guide by Joel Stewart C. BALCA En Banc Quick Reference Guide by Joel Stewart D. BALCA Hearing Procedures PART VI. FEDERAL LITIGATION GUIDE A. Introduction to Federal Court Litigation by Sam Udani B. Exhaustion of Administrative Review by Michael E. Piston C. Federal Court Litigation-PERM by David B. Pakula D. Sample Pleading by Michael E. Piston PART VII: PREVAILING WAGE REVIEW A. Prevailing Wage Survey & Overview by Jane Goldblum B. Wage Worksheet Simple Systems 1 by Jane Goldblum C. Wage Worksheet Simple Systems 2 by Jane Goldblum D. 656.40 Perm Reg. Determination of PW E. 656.41 Perm Reg. Certifying Officer Review of PW F. Prevailing Wage FAQ G. Appendix A By Alphabetical Order H. Appendix A By SOC Classification Order PART VIII: SWA SUMMARY STATE BY STATE Alabama, Alaska, Arizona, Arkansas, California Colorado, Connecticut, Delaware, District of Columbia Florida, Georgia, Guam, Hawaii, Idaho, Illinois, Indiana Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland Massachusetts, Michigan, Minnesota, Mississippi, Missouri Montana, Nebraska, Nevada, New Hampshire, New Jersey New Mexico, New York, North Carolina, North Dakota, Ohio Oklahoma, Oregon, Pennsylvania, Puerto Rico, Rhode Island South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont Virgin Islands, Virginia, Washington, West Virginia, Wisconsin, Wyoming PART IX: PERM RESOURCES ON CD-ROM A. SOC Structure B. SOC Definitions C. SOC 2006 Changes D. Background On Development Of Appendix A E. Stratifying Occupational Units By SVP F. NAICS 2002 Codes And Titles G. NAICS Codes And Titles - 2007 Revisions H. Latest OES Wage Data - MDB file I. 2008 OES Wage Data Structure J. Latest OES Wage Data - Statistical Area Definitions K. Appendix A By Alphabetical Order L. Appendix A By SOC Classification Order M. Darby v. Cisneros N. Lawyers Guide To 212(a)(5)(A) By Gary Endelman O. BALCA Hearing Procedures P. BALCA En Banc Cases From 1987 Q. Occupational Projections And Training Data R. Occupational Outlook Handbook S. Federal Register Notices On PERM T. Prevailing Wage Determination Policy Guidance U. What DOL Told OMB About PERM By Jay Solomon V. ETA Forms Old And New

1. New ETA Form 9089 and Instructions, Application for Permanent Employment Certification

2. Old ETA Form 9089, Application for Permanent Employment Certification 3. Old ETA Form 9089, Instructions 4. Old ETA Form 9089 Electronic Filing Instructions 5. ETA Form 750A 6. ETA Form 750B 7. ETA Form 750 A and B, Instructions

THE H-1B BOOK Editor: Karen Weinstock

Contributors: Prakash Khatri, Courtney Black, Mikiel J. Davids, Melissa Downing, Rajeshri

Patel, Ari J. Sauer, and Elissa Taub EDITOR

Karen Weinstock is the Managing Attorney of the Atlanta, Georgia office of Siskind Susser Bland. Karen graduated law school from Hebrew University School of Law in Jerusalem, Israel and is licensed to practice law both in Israel and in New York State. She is also admitted to practice before the Supreme Court of the United States, the United States Federal Court of the Southern and Eastern Districts of New York, and the U.S. Court of Appeals for the 5th, 9th and 11th Circuits. Karen is fluent in English, Hebrew and also speaks Spanish. She is a member of the American Immigration Lawyers Association and the New York Bar Association. She is also a member of the Board of Directors of the American-Israel Chamber of Commerce and an outgoing Board of Directors member of the Georgia Indo-American Chamber of Commerce. Karen had a solo law practice in New York City, serving international clientele doing business or working in the U.S. Her corporate law experience enables her to serve the special needs of multinational corporations. Karen is an expert in representing U.S. and international companies in the technology and healthcare areas. Karen writes articles for Siskind's Visalaw Health Care Immigration Newsletter and to Siskind's Immigration Bulletin. She is featured in newspapers, interviewed on television multiple times and is a keynote speaker on various immigration law topics in forums and events around the world. Karen authored "The H-1B Visa Book", published by Immigration Law Weekly.

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TABLE OF CONTENTS

Part I. Foreword Part II Introduction

0.1 The Complete H-1B Process: Attorney Flowchart 0.2 The H-1B Process: Attorney’s 10-Step System 0.3 Overview of H-1B Visas

1. First step – Interview the client

1.1 Qualifying the Position as a Specialty Occupation 1.2 Qualifying The Employee

1.3 Meeting Wage Requirements

1.4 Lawyer’s H-1B Consultation Questionnaire Form

1.5 Lawyer’s H-1B Task Checklist

2. Second step – Send the client intake forms and related information

2.1 Intakes Summary 2.2 H-1B Employer Intake/Questionnaire Form 2.3 H-1B Worker Intake/Questionnaire Form 2.4 The Complete H-1B Process: Company Flowchart

2.5 The H-1B Process: Company’s Step-By-Step Explanation

2.6 Explanation and instructions for spouses and children of H-1B visa

applicants

3. Third Step – Credentials: Verify that the worker has a U.S. bachelor’s degree or equivalent

3.1 Credentials Summary 3.2 If the worker has a U.S. degree – no evaluation is necessary

3.3 If the worker has a foreign degree – order credentials evaluation

3.4 If the H-1B petition is based on work experience or combination – order a work experience evaluation

3.5 List of credentials evaluation firms, websites and phone numbers

4. Fourth Step – Determine the Prevailing Wage

4.1 Understanding the Prevailing Wage 4.2 Determining the Prevailing Wage

4.2.1. O*NET, SOC, Wage Levels, Job Zone and SVP 4.2.2 SESA or SWA Wage Determination 4.2.3 FLC Data Center Wage Determination 4.2.4 Wage Determination Through Other Wage Surveys

4.3 Practice Examples in Determination of the Prevailing Wage

5. Fifth Step – Prepare and File the Labor Condition Application (LCA)

5.1 Introduction to the Labor Condition Application (LCA) 5.2 Preparing and filing the Labor Condition Application (LCA)

5.2.1 Online LCA filing

5.2.2 Complete Online LCA and Receive LCA Approval Online

5.2.3 Completing the LCA: Step by Step

5.2.4 H-1B Dependent Employers Worksheet for the LCA

5.3 Detailed Description of Form ETA-9035E and its Obligations 5.4 Sample of completed LCA (form ETA-9035E) and Form ETA9035CP

(LCA cover pages) 6. Sixth Step – Prepare the I-129, Related Forms and Petition Letter

6.1 Form I-129 6.2 H supplement to Form I-129 6.3 Form I-129 H-1B Data Collection Supplement 6.4 Form G-28

6.5 Form I-907 if premium processing is applicable If the H-1B worker has a foreign national spouse and/or children: 6.6 Form I-539 6.7 Form I-539 Supplement 1 (if necessary for other family members)

6.8 Petition Letter

7. Seventh step – Send all the forms and petition letter to the client for review & signature

7.1 Sample letter to client 7.2 LCA posting notice

7.3 Sample Letter to Employer Regarding Public Access File

7.4 Memorandum to employers on Labor Condition Application

7.5 Public Access File sample

8. Eighth step – Assemble the H-1B petition and send to the USCIS Service

Center

8.1 General Filing Instructions (including list of service centers and filing addresses)

8.2 Sample Cover Letter

8.3 H-1B Petition document checklist

8.4 Sample list of exhibits

9. Ninth step – Troubleshooting

9.1 Introduction 9.2 Request for Additional Evidence

9.3 Dealing with the dreaded request for evidence

9.3.1 Sample Response to Request for Additional Evidence

9.3.2 Second Example of Response to Request for Additional Evidence

9.4 I-9 Compliance, Social Security Numbers and Driver’s Licenses 9.5 Changes in H-1B Employment and Amendments

9.6 How Mergers, Acquisitions and other corporate Transactions Affect

the H-1B 10. Tenth step – Post-Approval Case Management

10.1 Summary of Post-Approval Issues 10.2 Sample H-1B Approval Letter to Employees that are in the U.S. 10.3 Sample H-1B Approval Letter to Company – Employee(s) Abroad 10.4 Sample H-1B Approval Letter to Employees Abroad 10.5 Sample H-1B Approval Letter to Company-Employee(s) Abroad

10.6 Non-immigrant Visa Consular Processing Information Sheet

Part III Advanced H-1B Issues Article 1 H-1B Degree Equivalency

Article 2 Reviewing The Path To Permanent Residency

Article 3 Traveling On An H-1B Visa While Petition Or Application Is

Pending

Article 4 Dealing With Gaps In Employment

Article 5 The History And Economic Impact Of The H-1B Visa

Article 6 When Are H-1B Visas Cap Exempt?

THE NURSE IMMIGRATION BOOK Editors: Joseph P. Curran and Dan H. Berger

Articles by James David Acoba, Stuart Anderson, David Auerbach, Gloria Bazzoli, Sylvia Boecker, Peter Buerhaus, CGFNS International, Sreekanth Chagaturu, Patrick Curran, Esther Fridman, Anneliese Gerland, Michael

Hammond, Leslie Holman, Mireille Kingma, Jessica May, Yvette Mooney, Christopher Musillo, Ronald Nair, Phyllis Farrell Norman, Mariah

Rutherford-Olds, Carl Shusterman, Greg Siskind, C. Philip Slaton, Douglas Staiger, William A. Stock, Snigdha Vallabhaneni and Christopher Wendt

EDITORS

Joseph P. Curran has been exclusively involved in the practice of immigration and nationality law since 1985, with experience representing clients in all aspects of this area of law. He has served as counsel to numerous individuals, major corporations, universities, and research institutions, specializing in immigration issues impacting on business and family-based sponsorship in the New England area. He has been an active member of the American Immigration Lawyers Association since 1985. As a member of the American Immigration Lawyers Association Congressional Liaison Committee, Attorney Curran works closely with U.S. Congressmen and US Senators regarding legislative and regulatory policy. Mr. Curran is also a member of the American Health Lawyers Association and the Labor and Employment Substantive law Committee. In addition, Mr. Curran completed his Juris Doctorate at Western New England School of Law. He worked on the United States Senate Judiciary Committee, writing speeches, drafting legislation and conducting research on the Equal Rights Amendment and Civil Rights legislation.

Dan H. Berger, a graduate of Harvard College and Cornell Law School, has written numerous articles on immigration law, and is a frequent speaker at colleges and universities around the northeast. Mr. Berger has also been a Senior Editor of the Immigration and Nationality Law Handbook since 2000, was an Author/Editor of the revised National Association of Foreign Student Advisers' Manual (2000), and Editor-in-Chief of Immigration Options for Academics and Researcher (2005). He is currently the Chair of the AILA Publications Committee, and serves on the AILA-Vermont Service Center Liaison Committee. Mr. Berger developed his interest in immigration in college, where he studied immigration history and taught English as a Second Language for adult refugees. He now specializes in serving academic and corporate clients.

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The Nurse Immigration Book 2007 - 2008 Edition

TABLE OF CONTENTS

PART 1: ARTICLES

About The Florence Nightingale International Foundation (we are pleased to donate a portion of the proceeds of each book to this foundation) ..........................................1 I. FOREWORD Why A Nurse Immigration Book? By William Stock........................................................................................................7 II. PREPARING AN IMMIGRATION CASE H-1 Visas For Nurses By Greg Siskind and Esther Schachter-Fridman........................................................11 TN Status For Nurses By Christopher Wendt................................................................................................18 Practice Pointers for Presenting TN Applications By Leslie Holman.......................................................................................................24 An Outline Of A Typical Nurse Case, Including Consular Processing By Joseph Curran........................................................................................................26 Adjustment Of Status For Professional Nurses By Sylvia Boecker......................................................................................................34 Building International Bridges By Commission On Graduates Of Foreign Nursing Schools.....................................52 Tips For Staffing Companies In Planning Their Posting Strategies By Ronald Nair...........................................................................................................69 Licensure: US State Licenses For International Nurses By Patrick Curran.......................................................................................................74 Immigration Basics For Allied Professional Healthcare Workers By Christopher Musillo..............................................................................................109 Managing Or Achieving Expectations: The Key To Success By Michael Hammond...............................................................................................116


III. UNDERSTANDING THE NURSING CRISIS Global Issues In Nurse Recruitment By Joseph Curran........................................................................................................125 The Nurse Shortage: Why It Matters By Carl Shusterman....................................................................................................140 Deadly Consequences: The Hidden Impact Of America’s Nursing Shortage By Stuart Anderson.....................................................................................................145 Aiding And Abetting – Nursing Crises At Home And Abroad By Sreekanth Chagaturu and Snigdha Vallabhaneni..................................................155 US Visa Policy Competition For International Scholars, Scientists And Skilled Workers By Phyllis Farrell Norman..........................................................................................160 Better Late Than Never: Workforce Supply Implications Of Later Entry Into Nursing By David Auerbach, Peter Buerhaus and Douglas Staiger.........................................164 IV. RECRUITING AND RETAINING NURSES The Business Of Nurse Migration By Mireille Kingma....................................................................................................177 Recruitment Of Workers In The Philippines: Playing Ball With The POEA By Ronald Nair...........................................................................................................188 Successful International Nurse Recruiting By C. Philip Slaton......................................................................................................205 Nurse Assimilation By Yvette Mooney......................................................................................................215 Hospitals’ Responses To Nurse Staffing Shortages By Jessica May, Gloria Bazzoli and Anneliese Gerland.............................................219 Nurse Perspectives Of The Migration Experience By Mariah Rutherford-Olds........................................................................................230 V. AFTERWORD Musings After 2 Decades In Nurse Immigration By James David Acoba...............................................................................................239


TABLE OF CONTENTS

PART 2: ESSENTIAL REFERENCE MATERIALS

PRIMARY SOURCES—Immigration Options for Nurses

a. Immigration and Nationality Act Statutes

• INA 101(a)(15)(H)(i)(b): represented as 8 USC 1101............................247 • INA 101(a)(15)(H)(i)(c): represented as 8 USC 1101.............................248 • INA 101(a)(15)(H)(i)(b1): represented as 8 USC 1101...........................248 • INA 101(a)(15)(O): represented as 8 USC 1101.....................................249 • INA 212(a)(5)(C): represented as 8 USC 1182........................................258 • INA 212(m): represented as 8 USC 1182.................................................272 • INA 212(r): represented as 8 USC 1182..................................................280 • INA 214(e): represented as 8 USC 1184..................................................284 • INA 214(g) : represented as 8 USC 1184.................................................290 • INA 214(i) : represented as 8 USC 1184..................................................291

b. Code of Federal Regulations

• 8 CFR 212.15............................................................................................296 • 8 CFR 214.2(h).........................................................................................302 • 8 CFR 214.2(o).........................................................................................319 • 8 CFR 214.6..............................................................................................326 • 20 CFR 655.700-.855...............................................................................330 • 20 CFR 655.1100-.1260...........................................................................374 • 20 CFR 656.5............................................................................................391 • 20 CFR 656.15..........................................................................................392 • 22 CFR 41.53............................................................................................393 • 22 CFR 41.55............................................................................................394 • 22 CFR 41.59............................................................................................394 • 22 CFR 41.101-.122..................................................................................395

c. Operation Instructions

• OI 202, Visa Number chargeability……………………………………..404 • OI 205 Revocation of approval of petitions

OI 214 Nonimmigrant classes: OI 214.1, General requirements for admission, extension, and maintenance of status; ………………….405 OI 214.2, Special requirements for admission, extension, and maintenance of status; ………………………………………………406 OI 214.6, Special requirements for admission, extension, and maintenance of status for Canadian citizens coming to engage in business activities at a professional level pursuant to U.S. Canada Free Trade Agreement...427


• OI 245 Adjustment of status to that of person admitted for permanent residence………………………………………………………………...429

d. Adjudicator’s Field Manual

• Chapter 22, Employment-based Petitions, Entrepreneurs and Special immigrants (under revision). Chapter 22.2, Employment-based Petitions (Forms I-140) (revision of February 14, 2006) (includes sample posting notice) ………………………………………………………………......445

• Chapter 23, Adjustment of Status to Lawful Permanent Resident ……..499 • Chapter 30, Nonimmigrants in general …………………………………591 • Chapter 31, Petitions for Temporary Workers (H classifications). Chapter

31.7, Nurses (H-1C). ................................................................................619 e. Forms

• ETA 9035, Labor Condition Application for Nonimmigrant Workers....627 • ETA 9089, Application for Permanent Employment Certification..........630 • G-325, Biographic Information................................................................640 • I-129, Petition for a Nonimmigrant Workers...........................................643 • I-131, Application for Travel Document..................................................660 • I-140, Immigrant Petition for Alien Worker ...........................................670 • I-485, Application to Register Permanent Residence or Change Status..677 • I-765, Application for Employment Authorization .................................689 • DS-157, Supplemental Nonimmigrant Visa Application.........................699 • DS-158, Contact Information and Work History for Nonimmigrant Visa

Applicant ..................................................................................................700 • DS-230, Application for Immigrant Visa and Alien Registration............702

f. Foreign Affairs Manual

• 9 FAM § 40.53, Uncertified Foreign Health-Care Workers ....................706 • 9 FAM § 40.71, Documentation Requirements for Immigrants...............707 • 9 FAM § 40.72, Documentary Requirements for Nonimmigrants...........708 • 9 FAM § 41.11, Entitlement to Nonimmigrant Status..............................709 • 9 FAM § 41.53, Temporary Workers and Trainees..................................710 • 9 FAM § 41.59, Professionals under the North American Free Trade

Agreement.................................................................................................711 • 9 FAM § 41.101, Place of Application.....................................................712 • 9 FAM § 41.111, Authority to Issue Visa ................................................713 • 9 FAM § 41.121, Refusal of Individual Visas..........................................714 • 9 FAM § 41.122, Revocation of Visas.....................................................719 • 9 FAM § 42.12, Rules of Chargeability...................................................720 • 9 FAM § 42.42, Petition for Immediate Relative or Preference Status....721 • 9 FAM § 42.51, Department Control of Numerical Limitations..............722 • 9 FAM § 42.53, Priority Date of Individual Applicants ..........................723


• 9 FAM § 42.63, Application Forms and Other Documentation...............724 • 9 FAM § 42.73, Procedure in Issuing Visas.............................................725 • 9 FAM § 42.80, Refusal, Revocation, and Termination of Registration..726

g. USCIS Memoranda (chronological)

Schedule A

• USCIS Memorandum: William R. Yates, Associate Director, Operations, “Current Processing of Pending Forms I-140 for a Schedule A/Group I or II Occupations Missing Evidence of Compliance with U.S. Department of Labor (DOL) Notification/Posting Requirements and Guidance Effective March 28, 2005 pursuant to new DOL regulations at 20 CFR Part 656 Regarding the New Process for Blanket Labor Certification for Schedule A,” HQPRD 70/8.5 (Sept. 23, 2005).........................................................................................729

• USCIS Memorandum: William R. Yates, Associate Director, Operations,

“Interim Guidance Regarding the Impact of the Department of Labor’s (DOL) PERM Rule on Determining Labor Certification Validity, Priority Dates for Employment-Based Form I-140 Petitions, Duplicate Labor Certification Requests, and Requests for Extension of H-1B Status Beyond the 6th Year,” HQPRD 70/6.2.8, AD 05-15 (Sept. 23, 2005), posted on AILA InfoNet at Doc. No. 05101269 (Oct. 12, 2005)..........................................................737


“Current Processing of Pending Forms I-140 for a Schedule A/Group I or II Occupations,” HQPRD 70/8.5 (June 15, 2005).........................................748


“Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-485 and H-1B Petitions Affected by the American Competitiveness in the Twenty-First Century Act (AC21),” HQPRD 70/6.2.8-P (May 12, 2005), posted on AILA InfoNet at Doc. No. 05051810 (May 18, 2005).........................................................................................................756


“Regression of E31 and E32 Visa Numbers for Applicants from Mainland China, India, and the Philippines; Rescission of March 31, 2004 Policy Memo re: Concurrent Adjudication of Concurrently Filed Form I-140s and Form I-485s,” HQOPRD 70/11.1 (Dec. 29, 2004), posted on AILA InfoNet at Doc. No. 04122862 (Dec. 28, 2004)..................................................................768


“Determination of Ability to Pay under 8 CFR 204.5(g)(2),” HQOPRD 90/16.45 (May 4, 2004), posted on AILA InfoNet at Doc. No. 04051262 (May 12, 2004)...................................................................................................773


• USCIS Memorandum: “Final Regulation on Certification of Foreign Health Care Workers: Adjudicator’s Field Manual Update AD 03-31” (Sept. 22, 2003), posted on AILA InfoNet at Doc. No. 03092641 (Sept. 26, 2003)...776

• INS Memorandum: Thomas E. Cook, “Adjudication of Form I-140 Petitions

for Schedule A Nurses Temporarily Unable to Obtain Social Security Cards” (Dec. 20, 2002), posted on AILA InfoNet at Doc. No. 03010840 (Jan. 8, 2003).........................................................................................................784

H-1B, H-1C

• USCIS Memorandum: Michael Aytes, Associate Director for Domestic Operations, “Guidance Regarding Eligibility for Exemption from the H-1B Cap based on § 103 of the American Competitiveness in the Twenty-First Century Act of 2000 (AC-21) (Public Law 106-313),” HQPRD 70/23.12, AD06-27, (June 6, 2006), posted on AILA InfoNet at Doc. No. 06060861 (June 8, 2006)............................................................................................787

• USCIS Memorandum: Michael Aytes, Acting Associate Director for

Domestic Operations, “AFM Update: Chapter 31: H-1B Cap Exemption for Aliens Holding a Master’s or Higher Degree from a U.S. Institution,” HQPRD 70/23.12, AD06-24 (May 2, 2006), posted on AILA InfoNet at Doc. No. 06050876 (May 8, 2006). .........................................................................798


Domestic Operations, “Procedures for Calculating Maximum Period of Stay Regarding the Limitations for Admission for H-1B and L-1 Nonimmigrants (AFM Update),” HQPRD 70/6.2.8, HQPRD 70/6.2.12, AD 05-21 (Oct. 21, 2005), posted on AILA InfoNet at Doc. No. 05110363...........................801


“Interim Guidance Regarding the Impact of the Department of Labor’s (DOL) PERM Rule on Determining Labor Certification Validity, Priority Dates for Employment-Based Form I-140 Petitions, Duplicate Labor Certification Requests, and Requests for Extension of H-1B Status Beyond the 6th Year,” HQPRD 70/6.2.8, AD 05-15 (Sept. 23, 2005), posted on AILA InfoNet at Doc. No. 05101269 (Oct. 12, 2005). ........................................................737


“Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-485 and H-1B Petitions Affected by the American Competitiveness in the Twenty-First Century Act (AC21),” HQPRD 70/6.2.8-P (May 12, 2005), posted on AILA InfoNet at Doc. No. 05051810 (May 18, 2005). .......................................................................................................756


• USCIS Memorandum: William R. Yates, Associate Director of Operations, “Procedures for Handling H-1B Petitions Filed on Behalf of F-1 and J-1 Nonimmigrants Affected by Federal Register Notice of July 23, 2004: Questions and Answers,” HQUSCIS 70/6.2.8 (August 8, 2004), posted on AILA InfoNet at Doc. No. 04081167 (June 30, 2004).............................810

• USCIS Memorandum: Ahern, Assistant Commissioner, Office of Field

Operations, “Free Trade Agreements with Chile and Singapore” (April 19, 2004), posted on AILA InfoNet at Doc. No. 05040166 (April 1, 2005)...812

• USCIS Memorandum: Ahern, Assistant Commissioner, Office of Field

Operations, “Health Care Worker Certification” (March 12, 2004), posted on AILA InfoNet at Doc. No. 05040164 (Apr. 1, 2005)...............................815

• USCIS Memorandum: William R. Yates, Associate Director of Operations,

“Lifting of Numerical Cap on Mexican NAFTA Nonimmigrant Professionals (“TN”) and Free Trade Agreements with Chile and Singapore” (Jan. 8, 2004), posted on AILA InfoNet at Doc. No. 04030361 (March 3, 2004)...........817

• BCIS Memorandum: William R. Yates, Acting Associate Director for

Operations, “Guidance for Processing H-1B Petitions as Affected by the Twenty-First Century Department of Justice Appropriations Authorization Act (Public Law 107-273): Adjudicator’s Field Manual Update AD 03-09,” HQBCIS 70/6/2/8-P (April 24, 2003), posted on AILA InfoNet at Doc. No.03050145 (May 1, 2003). ..................................................................822

• INS Memorandum: Johnny N. Williams, Executive Associate Commissioner,

Office of Field Operations, “Guidance on Adjudication of H-1B Petitions Filed on Behalf of Nurses,” HQISD 70/6.2.8-P (Nov. 27, 2002), posted on AILA InfoNet at Doc. No. 02121746 (Dec. 17, 2002).............................829

TN • USCIS Memorandum, William R. Yates, Associate Director of Operations,

“Lifting of Numerical Cap on Mexican NAFTA Nonimmigrant Professionals (“TN”) and Free Trade Agreements with Chile and Singapore” (Jan. 8, 2004), posted on AILA InfoNet at Doc. No. 04030361 (March 3, 2004)...........817

• INS Memorandum, Michael A. Pearson, Executive Associate Commissioner,

Office of Field Operations, “Denial of Applicants for Admission under the North American Free Trade Agreement (IN 01-11),” HQINS 70/6.2.2 (May 25, 2001), posted on AILA InfoNet at Doc. No. 01070231 (July 2, 2001)..833

h. Policy Guidance

• Department of Labor, Employment and Training Administration,


“Prevailing Wage Determination Policy Guidance for Nonagricultural Immigration Programs,” (revised May 9, 2005).......................................845

i. Certification and Licensing

• USCIS, “How Do I Apply For Health Care Workers Certification?”......873

• Nurse Licensing Requirements by State Chart(Courtesy of Siskind Susser Bland)........................................................................................................876


CD-ROM REFERENCE MATERIALS

I. PRIMARY SOURCES—Immigration Options for Nurses

a. Immigration and Nationality Act Statutes

• INA 101(a)(15)(H)(i)(b): represented as 8 USC 1101 • INA 101(a)(15)(H)(i)(c): represented as 8 USC 1101 • INA 101(a)(15)(H)(i)(b1): represented as 8 USC 1101 • INA 101(a)(15)(O): represented as 8 USC 1101 • INA 212(a)(5)(C): represented as 8 USC 1182 • INA 212(m): represented as 8 USC 1182 • INA 212(r): represented as 8 USC 1182 • INA 214(e): represented as 8 USC 1184 • INA 214(g) : represented as 8 USC 1184 • INA 214(i) : represented as 8 USC 1184

b. Code of Federal Regulations

• 8 CFR 212.15 • 8 CFR 214.2(h) • 8 CFR 214.2(o) • 8 CFR 214.6 • 20 CFR 655.1100-.1260 • 20 CFR 655.700-.855 • 20 CFR 656.15 • 20 CFR 656.5 • 22 CFR 41.101-.122 • 22 CFR 41.53 • 22 CFR 41.55 • 22 CFR 41.59

c. Operation Instructions

• OI 202, Visa Number chargeability • OI 205 Revocation of approval of petitions • OI 214 Nonimmigrant classes:

OI 214.1, General requirements for admission, extension, and maintenance of status; OI 214.2, Special requirements for admission, extension, and maintenance of status; OI 214.6, Special requirement for admission, extension and maintenance of status for Canadian citizens coming to engage in business activities at a professional level pursuant to U.S. Canada Free Trade Agreement

• OI 245 Adjustment of status to that of person admitted for permanent residence.


d. Adjudicator’s Field Manual

• Chapter 22, Employment-based Petitions, Entrepreneurs and Special immigrants (under revision). Chapter 22.2, Employment-based Petitions (Forms I-140) (revision of February 14, 2006) (includes sample posting notice)

• Chapter 23, Adjustment of Status to Lawful Permanent Resident • Chapter 30, Nonimmigrants in general • Chapter 31, Petitions for Temporary Workers (H classifications). Chapter

31.7, Nurses (H-1C). • Section IV. Waivers and Related Matters • Section V. Travel and Identity Documents

e. Forms

• ETA 9035, Labor Condition Application for Nonimmigrant Workers • ETA 9089, Application for Permanent Employment Certification • G-325, Biographic Information • I-129, Petition for a Nonimmigrant Workers • I-131, Application for Travel Document • I-140, Immigrant Petition for Alien Worker • I-485, Application to Register Permanent Residence or Change Status • I-765, Application for Employment Authorization • DS-156, Nonimmigrant Visa Application • DS-157, Supplemental Nonimmigrant Visa Application • DS-158, Contact Information and Work History for Nonimmigrant Visa

Applicant • DS-230, Application for Immigrant Visa and Alien Registration

f. Foreign Affairs Manual

• 9 FAM § 40.53, Uncertified Foreign Health-Care Workers • 9 FAM § 40.71, Documentation Requirements for Immigrants • 9 FAM § 40.72, Documentary Requirements for Nonimmigrants • 9 FAM § 41.11, Entitlement to Nonimmigrant Status • 9 FAM § 41.53, Temporary Workers and Trainees • 9 FAM § 41.59, Professionals under the North American Free Trade

Agreement • 9 FAM § 41.101, Place of Application • 9 FAM § 41.111, Authority to Issue Visa • 9 FAM § 41.121, Refusal of Individual Visas • 9 FAM § 41.122, Revocation of Visas • 9 FAM § 42.0, Immigrant Visas (entire section) • 9 FAM § 42.12, Rules of Chargeability • 9 FAM § 42.30, Immigrants Subject to Numerical Limitation (entire section) • 9 FAM § 42.42, Petition for Immediate Relative or Preference Status


• 9 FAM § 42.51, Department Control of Numerical Limitations • 9 FAM § 42.53, Priority Date of Individual Applicants • 9 FAM § 42.63, Application Forms and Other Documentation • 9 FAM § 42.73, Procedure in Issuing Visas • 9 FAM § 42.80, Refusal, Revocation, and Termination of Registration

g. USCIS Memoranda (chronological)

Schedule A

• USCIS Memorandum: William R. Yates, Associate Director, Operations, “Current Processing of Pending Forms I-140 for a Schedule A/Group I or II Occupations Missing Evidence of Compliance with U.S. Department of Labor (DOL) Notification/Posting Requirements and Guidance Effective March 28, 2005 pursuant to new DOL regulations at 20 CFR Part 656 Regarding the New Process for Blanket Labor Certification for Schedule A,” HQPRD 70/8.5 (Sept. 23, 2005).


“Interim Guidance Regarding the Impact of the Department of Labor’s (DOL) PERM Rule on Determining Labor Certification Validity, Priority Dates for Employment-Based Form I-140 Petitions, Duplicate Labor Certification Requests, and Requests for Extension of H-1B Status Beyond the 6th Year,” HQPRD 70/6.2.8, AD 05-15 (Sept. 23, 2005), posted on AILA InfoNet at Doc. No. 05101269 (Oct. 12, 2005).


“Current Processing of Pending Forms I-140 for a Schedule A/Group I or II Occupations,” HQPRD 70/8.5 (June 15, 2005).


“Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-485 and H-1B Petitions Affected by the American Competitiveness in the Twenty-First Century Act (AC21),” HQPRD 70/6.2.8-P (May 12, 2005), posted on AILA InfoNet at Doc. No. 05051810 (May 18, 2005).


“Regression of E31 and E32 Visa Numbers for Applicants from Mainland China, India, and the Philippines; Rescission of March 31, 2004 Policy Memo re: Concurrent Adjudication of Concurrently Filed Form I-140s and Form I-485s,” HQOPRD 70/11.1 (Dec. 29, 2004), posted on AILA InfoNet at Doc. No. 04122862 (Dec. 28, 2004).


“Determination of Ability to Pay under 8 CFR 204.5(g)(2),” HQOPRD


90/16.45 (May 4, 2004), posted on AILA InfoNet at Doc. No. 04051262 (May 12, 2004).


“Final Regulation on Certification of Foreign Health Care Workers: Adjudicator’s Field Manual Update AD 03-31” (Sept. 22, 2003), posted on AILA InfoNet at Doc. No. 03092641 (Sept. 26, 2003).

• INS Memorandum: Thomas E. Cook, “Adjudication of Form I-140 Petitions

for Schedule A Nurses Temporarily Unable to Obtain Social Security Cards” (Dec. 20, 2002), posted on AILA InfoNet at Doc. No. 03010840 (Jan. 8, 2003).

H-1B, H-1C

• USCIS Memorandum: Michael Aytes, Associate Director for Domestic Operations, “Guidance Regarding Eligibility for Exemption from the H-1B Cap based on § 103 of the American Competitiveness in the Twenty-First Century Act of 2000 (AC-21) (Public Law 106-313),” HQPRD 70/23.12, AD06-27, (June 6, 2006), posted on AILA InfoNet at Doc. No. 06060861 (June 8, 2006).


Domestic Operations, “AFM Update: Chapter 31: H-1B Cap Exemption for Aliens Holding a Master’s or Higher Degree from a U.S. Institution,” HQPRD 70/23.12, AD06-24 (May 2, 2006), posted on AILA InfoNet at Doc. No. 06050876 (May 8, 2006).


Domestic Operations, “Procedures for Calculating Maximum Period of Stay Regarding the Limitations for Admission for H-1B and L-1 Nonimmigrants (AFM Update),” HQPRD 70/6.2.8, HQPRD 70/6.2.12, AD 05-21 (Oct. 21, 2005), posted on AILA InfoNet at Doc. No. 05110363.


“Interim Guidance Regarding the Impact of the Department of Labor’s (DOL) PERM Rule on Determining Labor Certification Validity, Priority Dates for Employment-Based Form I-140 Petitions, Duplicate Labor Certification Requests, and Requests for Extension of H-1B Status Beyond the 6th Year,” HQPRD 70/6.2.8, AD 05-15 (Sept. 23, 2005), posted on AILA InfoNet at Doc. No. 05101269 (Oct. 12, 2005).


“Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-485 and H-1B Petitions Affected by the American Competitiveness in the Twenty-First Century Act (AC21),” HQPRD 70/6.2.8-


P (May 12, 2005), posted on AILA InfoNet at Doc. No. 05051810 (May 18, 2005).


“Procedures for Handling H-1B Petitions Filed on Behalf of F-1 and J-1 Nonimmigrants Affected by Federal Register Notice of July 23, 2004: Questions and Answers,” HQUSCIS 70/6.2.8 (August 8, 2004), posted on AILA InfoNet at Doc. No. 04081167 (June 30, 2004).

• USCIS Memorandum: Jayson Ahern, Assistant Commissioner, Office of Field

Operations, “Free Trade Agreements with Chile and Singapore” (April 19, 2004), posted on AILA InfoNet at Doc. No. 05040166 (April 1, 2005).

• USCIS Memorandum: Jayson Ahern, Assistant Commissioner, Office of Field

Operations, “Health Care Worker Certification” (March 12, 2004), posted on AILA InfoNet at Doc. No. 05040164 (Apr. 1, 2005).


“Lifting of Numerical Cap on Mexican NAFTA Nonimmigrant Professionals (“TN”) and Free Trade Agreements with Chile and Singapore” (Jan. 8, 2004), posted on AILA InfoNet at Doc. No. 04030361 (March 3, 2004).

• BCIS Memorandum: William R. Yates, Acting Associate Director for

Operations, “Guidance for Processing H-1B Petitions as Affected by the Twenty-First Century Department of Justice Appropriations Authorization Act (Public Law 107-273): Adjudicator’s Field Manual Update AD 03-09,” HQBCIS 70/6/2/8-P (April 24, 2003), posted on AILA InfoNet at Doc. No.03050145 (May 1, 2003).

• INS Memorandum: Johnny N. Williams, Executive Associate Commissioner,

Office of Field Operations, “Guidance on Adjudication of H-1B Petitions Filed on Behalf of Nurses,” HQISD 70/6.2.8-P (Nov. 27, 2002), posted on AILA InfoNet at Doc. No. 02121746 (Dec. 17, 2002).

TN • USCIS Memorandum: William R. Yates, Associate Director of Operations,

“Lifting of Numerical Cap on Mexican NAFTA Nonimmigrant Professionals (“TN”) and Free Trade Agreements with Chile and Singapore” (Jan. 8, 2004), posted on AILA InfoNet at Doc. No. 04030361 (March 3, 2004).

• INS Memorandum: Michael A. Pearson, Executive Associate Commissioner,

Office of Field Operations, “Denial of Applicants for Admission under the North American Free Trade Agreement (IN 01-11),” HQINS 70/6.2.2 (May 25, 2001), posted on AILA InfoNet at Doc. No. 01070231 (July 2, 2001).


h. Links to Liaison Minutes (Chronological; only included minutes with questions related specifically to nurses)

• Minutes of May 1, 2006, AILA/TSC Meeting (revised May 8, 2006), posted on AILA InfoNet (June 16, 2006) (see Question 4 re whether VisaScreen is required at time of filing I-140/485).

• Minutes of April 14, 2006 AILA/CGFNS Liaison Meeting, posted on AILA

InfoNet at Doc. No. 06061671 (June 16, 2006). • Minutes of January 9, 2006 AILA/TSC Meeting, posted on AILA InfoNet at

Doc. No. 06020970 (Feb. 9, 2006) (See Question 12 on the TSC’s process for distinguishing Schedule A from regular EB-3 petitions)

• Minutes of August 24, 2005 CSC/AILA Liaison Meeting, posted on AILA

InfoNet at Doc. No. 05083065 (see Question 5 re nurse staffing companies)

i. Policy Guidance

• Department of Labor, Employment and Training Administration, “Prevailing Wage Determination Policy Guidance for Nonagricultural Immigration Programs,” (revised May 9, 2005)

j. Other

• AILA-SCOPS Q&A Regarding Schedule A Posting Requirements, Dec. 19,

2005, posted on AILA InfoNet at Doc. No. 05122162 (Dec. 21, 2005). II. CERTIFICATION AND LICENSING

a. General

• USCIS, “How Do I Apply For Health Care Workers Certification?”

b. Commission on Graduates of Foreign Nursing Schools (CFGNS)

• CFGNS: http://www.cgfns.org/ • Applications and forms: http://cgfns.org/sections/apply/download.shtml • Enrollment Form: Online Multiple Report System • Certification Program Applications: 2006 Application Handbook – PDF (rev.

03/6/06); 2006 Re-Application Packet – PDF (rev. 04/13/06) • Credentials Evaluation Service Applications: 2006 Application Handbook –

PDF (rev. 03/06/06); 2006 Additional Services Form – PDF (rev. 04/13/06) • Credential Verification for New York State Applications; 2006 Application

Handbook – PDF (rev. 03/06/06)

http://www.cgfns.org/

http://cgfns.org/sections/apply/download.shtml

http://cgfns.org/pdf/apps/CP Handbook Web.pdf

http://cgfns.org/pdf/apps/cp/CPReApp.pdf

http://cgfns.org/pdf/apps/CES Handbook Web.pdf

http://cgfns.org/pdf/apps/ces/CESAddSvc.pdf

http://cgfns.org/pdf/apps/CVS Handbook Web.pdf

http://cgfns.org/pdf/apps/CVS Handbook Web.pdf


• VisaScreen™ Program Applications: 2006 Application Handbook – PDF (rev. 03/06/06); Renewal Application Packet – PDF (rev. 07/07/05)

c. English Language Proficiency

Scores from the TOEFL/TWE, TSE, IELTS, or TOEIC are accepted by the CGFNS.

• Test of English as a Foreign Language (TOEFL); • Test of Written English (TWE), and Test of Spoken English (TSE)

administered by the Educational Testing Service (ETS); or • Test of English for International Communication (TOEIC) administered by

the Chauncey Group, along with the TSE and TWE, administered by ETS; or

All ETS-administered testing information available at: http://www.ets.org.

• International English Language Testing System (IELTS), administered by Cambridge ESOL Examinations, the British Council and IDP Education Australia.

IELTS-administered testing information available at: http://www.ielts.org/.

d. Licensing (Links)

• National Council Licensure Examination (NCLEX-RN), created by National Council of State Boards of Nursing, required by all states for licensing of nurses: http://www.ncsbn.org/.

• State-by-state licensing requirements: Alabama: http://www.abn.state.al.us Alaska: http://www.dced.state.ak.us/occ/pnur.htm Arizona: http://www.azbn.gov/ Arkansas: http://www.arsbn.org/ California: http://www.rn.ca.gov/ Colorado: http://www.dora.state.co.us/nursing/ Connecticut: http://www.dph.state.ct.us Delaware: http://www.professionallicensing.state.de.us/boards/nursing/index.shtml District of Columbia: http://www.dchealth.dc.gov Florida: http://www.doh.state.fl.us/mqa/nursing/ Georgia: http://www.sos.state.ga.us/plb/rn/ Hawaii: http://www.hawaii.gov/dcca/areas/pvl/boards/nursing/ Idaho: http://www2.idaho.gov/ibn/ Illinois: http://www.idfpr.com/dpr/WHO/nurs.asp Indiana: http://www.in.gov/pla/bandc/isbn/ Iowa: http://www.state.ia.us/nursing/

http://cgfns.org/pdf/apps/VS Handbook Web.pdf

http://cgfns.org/pdf/apps/vs/VisaScreenReApp.pdf

http://www.ets.org/

http://www.ielts.org/

http://www.ncsbn.org/

http://www.abn.state.al.us/

http://www.dced.state.ak.us/occ/pnur.htm

http://www.azbn.gov/

http://www.arsbn.org/

http://www.rn.ca.gov/

http://www.dora.state.co.us/nursing/

http://www.dph.state.ct.us/

http://www.professionallicensing.state.de.us/boards/nursing/index.shtml

http://www.dchealth.dc.gov/

http://www.doh.state.fl.us/mqa/nursing/

http://www.sos.state.ga.us/plb/rn/

http://www.hawaii.gov/dcca/areas/pvl/boards/nursing/

http://www2.idaho.gov/ibn/

http://www.idfpr.com/dpr/WHO/nurs.asp

http://www.in.gov/pla/bandc/isbn/

http://www.state.ia.us/nursing/


Kansas: http://www.ksbn.org Kentucky: http://www.kbn.ky.gov/ Louisiana: http://www.lsbn.state.la.us/ Maine: http://www.state.me.us/boardofnursing/ Maryland: http://www.mbon.org Massachusetts: http://www.state.ma.us/reg/boards/rn/ Michigan: http://www.michigan.gov/mdch/0,1607,7-132-27417_27529_27542---,00.html Minnesota: http://www.nursingboard.state.mn.us/ Mississippi: http://www.msbn.state.ms.us/ Missouri: http://pr.mo.gov/nursing.asp Montana: http://mt.gov/dli/bsd/license/bsd_boards/nur_board/board_page.asp Nebraska: http://www.hhs.state.ne.us/crl/nursing/Nursingindex.htm Nevada: http://www.nursingboard.state.nv.us/ New Hampshire: http://www.state.nh.us/nursing/ New Jersey: http://www.state.nj.us/lps/ca/medical/nursing.htm New Mexico: http://www.bon.state.nm.us/index.html New York: http://www.op.nysed.gov/nurse.htm North Carolina: http://www.ncbon.com North Dakota: http://www.ndbon.org Ohio: http://www.nursing.ohio.gov/ Oklahoma: http://www.ok.gov/nursing/ Oregon: http://www.osbn.state.or.us/ Pennsylvania: www.dos.state.pa.us/nurse Rhode Island: http://www.health.state.ri.us/hsr/professions/nurses.php South Carolina: http://www.llr.state.sc.us/pol/nursing/ South Dakota: http://www.state.sd.us/doh/nursing/ Tennessee: http://www2.state.tn.us/health/Boards/Nursing/ Texas: http://www.bne.state.tx.us/ Utah: http://www.dopl.utah.gov/licensing/nurse.html Vermont: http://www.vtprofessionals.org/opr1/nurses/ Virginia: http://www.dhp.state.va.us/Nursing/ Washington: https://fortress.wa.gov/doh/hpqa1/hps6/Nursing/default.htm West Virginia: http://www.wvrnboard.com Wisconsin: http://drl.wi.gov/boards/nur/index.htm Wyoming: http://nursing.state.wy.us

III. GENERAL WEB RESOURCES

• United States Citizenship & Immigration Services, http://www.uscis.gov • United States Department of State, Visa Services,

http://travel.state.gov/visa/visa_1750.html • United States Department of State Visa Bulletin,

http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

http://www.ksbn.org/

http://www.kbn.ky.gov/

http://www.lsbn.state.la.us/

http://www.state.me.us/boardofnursing/

http://www.mbon.org/

http://www.state.ma.us/reg/boards/rn/

http://www.michigan.gov/mdch/0,1607,7-132-27417_27529_27542---,00.html

http://www.michigan.gov/mdch/0,1607,7-132-27417_27529_27542---,00.html

http://www.nursingboard.state.mn.us/

http://www.msbn.state.ms.us/

http://pr.mo.gov/nursing.asp

http://mt.gov/dli/bsd/license/bsd_boards/nur_board/board_page.asp

http://www.hhs.state.ne.us/crl/nursing/Nursingindex.htm

http://www.nursingboard.state.nv.us/

http://www.state.nh.us/nursing/

http://www.state.nj.us/lps/ca/medical/nursing.htm

http://www.bon.state.nm.us/index.html

http://www.op.nysed.gov/nurse.htm

http://www.ncbon.com/

http://www.ndbon.org/

http://www.nursing.ohio.gov/

http://www.ok.gov/nursing/

http://www.osbn.state.or.us/

http://www.dos.state.pa.us/nurse

http://www.health.state.ri.us/hsr/professions/nurses.php

http://www.llr.state.sc.us/pol/nursing/

http://www.state.sd.us/doh/nursing/

http://www2.state.tn.us/health/Boards/Nursing/

http://www.bne.state.tx.us/

http://www.dopl.utah.gov/licensing/nurse.html

http://www.vtprofessionals.org/opr1/nurses/

http://www.dhp.state.va.us/Nursing/

https://fortress.wa.gov/doh/hpqa1/hps6/Nursing/default.htm

http://www.wvrnboard.com/

http://drl.wi.gov/boards/nur/index.htm

http://nursing.state.wy.us/

http://www.uscis.gov/

http://travel.state.gov/visa/visa_1750.html

http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html


• Department of Labor, Foreign Labor Certifications, http://www.foreignlaborcert.doleta.gov/

• NAFSA Adviser’s Manual • Nurse Licensing Requirements by State Chart (Courtesy of Siskind Susser

Bland) IV. ADDITIONAL RESOURCES AND LINKS TO WEBSITES:

• These occupations require the Health Care Worker Certificate:

Nurses (licensed practical nurses, licensed vocational nurses, and registered nurses)

Physical therapists Occupational therapists Speech language pathologists and audiologists Medical technologists (a.k.a. clinical laboratory technicians) Medical technicians (a.k.a. clinical laboratory technicians) Physician assistants

• NAFTA Professional Job Series List:

http://travel.state.gov/visa/temp/types/types_1274.html

• USCIS Fact Sheet on the Health Care Worker Certificate (includes a FAQ): http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176 543f6d1a/?vgnextoid=c55878a814f0e010VgnVCM1000000ecd190aRCRD& vgnextchannel=48819c7755cb9010VgnVCM10000045f3d6a1RCRD

• Licensing / Healthcare Worker Certification websites:

National Council of State Boards of Nursing (NCLEX administrators): http://www.ncsbn.org/

Commission on Graduates of Foreign Nursing Schools (CGFNS): http://www.cgfns.org

Foreign Credentialing Commission on Physical Therapy (FCCPT): http://www.fccpt.org/

National Board for Certification in Occupational Therapy (NBCOT): http://www.nbcot.org/

Federation of State Boards of Physical Therapy (FSBPT): http://www.fsbpt.org/

Praxis Series: www.ets.org/praxis

• CGFNS’ Summary of Minimum English Language Testing Scores, per occupation: http://www.cgfns.org/sections/tools/faq/vs.shtml#18

The CD-Rom Reference Material was compiled by Jennifer Rogers, a summer intern at Curran and Berger, and currently a law student at New York School of Law.

http://www.foreignlaborcert.doleta.gov/

http://travel.state.gov/visa/temp/types/types_1274.html

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=c55878a814f0e010VgnVCM1000000ecd190aRCRD&vgnextchannel=48819c7755cb9010VgnVCM10000045f3d6a1RCRD



http://www.ncsbn.org/

http://www.cgfns.org/

http://www.fccpt.org/

http://www.nbcot.org/

http://www.fsbpt.org/

http://www.ets.org/praxis

http://www.cgfns.org/sections/tools/faq/vs.shtml#18

THE REMOVAL BOOK Editor: Scott Bratton

EDITOR

Scott Bratton is a Partner at Margaret Wong and Associates Co, LPA. His practice includes removal defense, political asylum, federal litigation, consular processing, criminal law, and assistance in business and family based visas. Mr. Bratton received his BA in Business Management from Ohio Northern University in 1993 and his JD from the University of Cincinnati College of Law in 1997. Prior to joining our firm, Mr. Bratton was a partner in the law firm of Bratton & Ratliff Co., LPA, where he practiced federal and state criminal law. He has been named a Leading Lawyer by Inside Business Magazine and an Ohio Super Lawyers Rising Star by Cincinnati Magazine, which is an honor reserved for the top 2.5% of young lawyers in Ohio. He has practiced immigration law for almost six years and has been the attorney of record on numerous precedent-setting cases, including Liao v. Rabbett, 398 F.3d 389 (6th Cir. 2005), Singh v. Gonzales, 451 F.3d 400 (6th Cir. 2006), and Iao v. Gonzales, 400 F.3d 530 (7th Cir. 2005), which was discussed in a December 2005 article in the New York Times. He has also spoken at numerous immigration conferences and has been quoted in several newspaper articles, including a June 2006 story on immigration court that ran in newspapers across the country.

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TABLE OF CONTENTS PART ONE: Removal proceedings, grounds of removal, and contesting the charges in a Notice to Appear CHAPTER ONE‐ REMOVAL PROCEEDINGS I. Overview of removal proceedings II. Commencement of removal proceedings under INA § 240 A. Differences between removal, deportation, and exclusion proceedings

B. Charging Document‐ Notice to Appear 1. Who can initiate removal proceedings 2. Procedural rights prior to the hearing 3. Required contents of the Notice to Appear 4. Prosecutorial Discretion

III. Other types of removal proceedings A. Expedited removal proceedings under INA § 235 B. Administrative removal proceedings under INA § 238 C. Reinstatement of removal IV. Proper service of the charging document in proceedings A. Notice to Appear B. Order to Show Cause in deportation proceedings V. Rights in removal proceedings A. Hearing before an Immigration Judge B. Contacting consulates C. Right to counsel D. Right to translation of proceedings E. Right to examine and present evidence F. Right to be advised of eligibility for relief G. Right to due process in proceedings H. Closed hearings I. Discovery J. Right to remain silent VI. Bond Hearings and Parole A. Bond procedure in Immigration Court 1. Who is eligible for bond 2. How to apply for bond B. Parole requests with ICE C. Mandatory detention and Joseph hearings D. Bond appeals to the Board of Immigration Appeals

E. Habeas corpus in the United States District Court VII. Inadmissibility under INA § 212 or Removability under INA § 240 – How Is This Determined VIII. Immigration Court Practice Manual IX. Pre‐Hearing Motions 1. Motion to change venue 2. Motion for subpoena or deposition of a witness 3. Motion for continuance 4. Motion for pre‐hearing conference 5. Motion for extension for filing X. Juvenile Proceedings XI. Security checks CHAPTER TWO GROUNDS OF INADMISSIBILITY I. Overview of the Grounds of Inadmissibility II. Who bears the burden of proof when your client is charged under INA § 212 III. Grounds of Inadmissibility A. Health‐related grounds 1. Communicable disease 2. Lack of vaccinations 3. Physical or mental disorders 4. Drug abusers or addicts B. Economic Grounds C. Criminal Grounds 1. Overview 2. Burden of Proof 3. Obtaining criminal records 4. Conviction vs. admission 5. Crimes involving moral turpitude 6. Multiple criminal convictions 7. Prostitution and commercialized vice 8. Controlled substance violators 9. Significant traffickers in persons 10. Immunity 11. Money laundering

D. Violations involving entry, lack of documentation, or prior immigration violations 1. Person who has been removed 2. Person who failed to attend removal proceeding 3. Person who has previously been unlawfully present in the United States 4. Person present without admission or parole 5. Fraud or willful misrepresentation 6. False claim to citizenship 7. Stowaways 8. Labor certification 9. Unqualified physicians 10. Uncertified health‐care workers 11. Person not in possession of valid documentation to enter U.S. 12. Ineligible for citizenship 13. Student visa violators 14. Final civil document fraud order 15. Smugglers 14. Miscellaneous grounds E. Security related grounds

1. Overview 2. Terrorist activities 3. Activities having adverse foreign policy consequences 4. Membership in a totalitarian party 5. Participation in Nazi persecution 6. Association with terrorist organizations

F. Person coming to the United States to practice polygamy CHAPTER THREE: GROUNDS OF REMOVAL I. Overview of the grounds of removal A. Aliens inadmissible at the time of entry or adjustment of status or violated status 1. Inadmissible at the time of entry 2. Present in violation of the law 3. Violated nonimmigrant status or condition of admission 4. Termination of conditional permanent resident 5. Smuggling 6. Marriage fraud B. Criminal offenses 1. Crimes involving moral turpitude 2. Multiple criminal convictions 3. Aggravated felonies 4. High speed flight from immigration checkpoint

5. Controlled substance offenses 6. Firearms offenses 7. Crimes of domestic violence, stalking, or violations of a protective order C. Document‐related grounds of removal 1. Change of address 2. Failure to register or falsification of documents 3. Document fraud 4. False claim to citizenship D. Security Grounds 1. In general 2. Terrorist activities 3. Person whose presence or activities would have serious foreign policy consequences

4. Participation in Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing

E. Public charge F. Unlawful voters CHAPTER FOUR: CONTESTING REMOVABILITY I. Overview II. Preliminary considerations A. Is the person a United States citizen? B. Is your client subject to removal as charged in the NTA C. Prosecutorial discretion III. The decision to concede or contest removability IV. Grounds to challenge a Notice to Appear V. Burden of proof in removal proceedings VI. Special issues where the person is charged with being subject to removal based on criminal

grounds 1. Definition of conviction 2. Relief from criminal convictions VII. Motions to suppress VIII. Conclusion Part Two: RELIEF FROM REMOVAL

Overview CHAPTER ONE: ADJUSTMENT OF STATUS I. Adjustment of Status

A. Re‐adjusting status as a defense to removal B. Adjustment of status of arriving aliens C. Termination to proceed with adjustment of status before USCIS D. Continuances

II. INA § 245(i) A. Overview B. Physical presence requirement C. Grandfathering III. Family‐based adjustment of status IV. Employment‐Based Adjustment of status V. Child status Protection Act (“CSPA”) VI. Removal of conditional residence VII. NACARA VIII. Refugee adjustment in removal proceedings IX. Registry X. Adjustment for certain nationals from Vietnam, Cambodia, and Laos XI. Cuban adjustment Act CHAPTER TWO: Waivers in removal proceedings I. Overview II. Discretionary determination III. Types of Waivers A. Waiver for health‐related inadmissibility grounds ‐ INA § 212(g) B. Waiver for criminal grounds of inadmissibility – INA § 212(h) 1. What criminal grounds are covered? 2. Eligibility requirements 3. Hardship standard 4. How to file

C. Waiver for fraud or misrepresentation – INA § 212(i) 1. Eligibility requirements 2. Hardship standard 3. How to file D. Waiver for unlawful presence – INA § 212(a)(9)(B)(v) 1. What grounds are inadmissibility are covered? 2. Eligibility requirements 3. How to file

E. Waiver for person inadmissible at the time of entry for fraud or material misrepresentation– INA § 237(a)(1)(H)

1. Eligibility requirements 2. Hardship standard 3. How to file

F. Waiver under INA § 212(k) for inadmissible person in possession of immigrant visa at the time of entry G. Waiver of grounds of inadmissibility for asylees and refugees‐ INA § 209(c) 1. Legal standard 2. How to file H. Other waivers available in removal proceedings

IV. Conclusion CHAPTER THREE: CANCELLATION OF REMOVAL FOR LPRs AND INA § 212(c) RELIEF I. Introduction II. Cancellation of Removal for LPRs A. Lawfully admitted for permanent residence for five years B. Resided continuously in the United States for seven years after being admitted in any status C. Has not been convicted of an aggravated felony D. Warrants a favorable exercise of discretion E. Stop‐time rule

F. Grounds of ineligibility G. How to file

III. INA § 212(c) relief A. Background B. Eligibility C. Adjustment of status and 212(c) D. Ineligibility for 212(c) relief E. Discretionary determination F. How to file

CHAPTER FOUR: CANCELLATION OF REMOVAL FOR NON‐LPRs I. Introduction II. Eligibility A. Physically present for ten years B. Good Moral character for ten years C. Not been convicted of a specified criminal offense

D. Establishes that removal would resulting exceptional and extremely unusual hardship to USC or LPR parent, spouse, or child E. Warrants a favorable exercise of discretion F. Other grounds of ineligibility

G. How to Apply III. Continuous physical presence and the stop‐time rule IV. Repapering V. Special rule cancellation of removal for a battered spouse or child A. Eligibility B. Special hardship factors VI. Suspension of deportation CHAPTER FIVE: NACARA I. Introduction II. Eligibility to Apply A. Guatemalans B. Salvadorans C. Eastern Europeans III. Requirements IV. Statutory Bars V. IJ jurisdiction to adjudicate NACARA applications VII. How to file CHAPTER SIX: ASYLUM AND WITHHOLDING OF REMOVAL I. Overview and benefits of asylum II. Referred vs. defensive asylum application

III. Real ID Act of 2005 IV. Corroboration of an Asylum Claim V. On account of standard 1. Race 2. Religion 3. Nationality 4. Political opinion 5. Membership in a particular social group VI. Government unwilling or unable to control persecutors VII. What constitutes persecution VIII. Past Persecution Claim 1. IJ must make finding on whether past persecution established 2. Presumption of a well‐founded fear of persecution 3. Fundamental change in circumstances 4. Internal relocation 5. Humanitarian asylum after a finding of past persecution IX. Well‐founded fear of persecution 1. Fear subjectively genuine and objectively reasonable 2. Pattern or practice claim 3. Internal relocation X. Exercise of discretion XI. Bars to Asylum A. One‐year filing deadline B. Persecution of others C. Serious nonpolitical crime D. Terrorism E. Danger to the security of the United States F. Safe third country G. Previous asylum application F. Criminal bars H. Firm Resettlement XII. Withholding of Removal A. Withholding standard and comparison to asylum B. Past persecution finding in a withholding case C. Bars to withholding of removal 1. Particularly serious crime 2. Danger to U.S. security 3. Serious nonpolitical crime

4. Persecution of others 5. Nazi or Engaged in Genocide XIII. Termination of asylum and withholding of removal XIV. Employment authorization XV. The credible fear process CHAPTER SEVEN: CONVENTION AGAINST TORTURE I. Overview II. CAT regulations and legal standard III. Definition of torture IV. Acquiescence of Government officials V. Withholding of removal versus deferral of removal under CAT VI. Termination of CAT relief CHAPTER EIGHT: VOLUNTARY DEPARTURE I. Overview and benefits II. Requirements A. Prior to the conclusion of removal proceedings B. At the conclusion of removal proceedings III. Failure to post voluntary departure bond IV. The effect of failing to depart V. Reinstatement of voluntary departure after an appeal to the Board VI. Termination of voluntary departure upon filing a motion to reopen or petition for review CHAPTER NINE: NATURALIZATION AS A DEFENSE TO REMOVAL I. Overview II. Prima Facie Eligibility for Naturalization

III. Bars to Naturalization IV. Procedure for termination of removal proceedings to apply for naturalization CHAPTER TEN: OTHER RELIEF I. S visa II. T visa III. U visa IV. I‐360 V. TPS VI. Deferred Action VII. Private Bill PART THREE: APPEALS AND MOTIONS TO REOPEN CHAPTER ONE: I. Appeal to the Board of Immigration Appeals A. Overview B. Time Limit C. Appeal Procedure D. Standard of Review II. Motions to Reopen A. Overview B. Purpose C. Time and number limits D. Content, format, and filing requirements E. In absentia orders 1. Lack of notice 2. Exceptional circumstances for failing to appear F. Newly available relief G. Reopening to apply for asylum H. Stay of Removal

In more than 30 years of practice, MargaretWong built Margaret W. Wong & AssociatesCo., L.P.A. into a law firm nationally andinternationally renowned for its knowledgeand expertise in immigration and nationalitylaw. Ms. Wong is licensed to practice in Ohio,Michigan, New York, Georgia, the District ofColumbia, U.S. District Court for theNorthern District of Ohio, U.S. District Courtfor the Southern District of New York, U.S.District Court for the Eastern District of NewYork, U.S. Court of Appeals for the 6thCircuit, and the U.S. Supreme Court. Herfirm handles more than 4,000 immigrationmatters each year, with offices in Cleveland,

Columbus, Atlanta and New York. Among other honors, she has been listed as anOhio Super Lawyer, Ohio Leading Lawyer and one of Cleveland Magazine's MostInteresting People. Ms. Wong has been inducted into the Ohio Women's Hall ofFame, is AV rated by Martindale-Hubbell, is a recipient of the Ellis Island Medal ofHonor and served as the first Asian-American president of the NortheasternChapter of the Federal Bar Association. She is also co-chair of the Immigration LawCommittee for the National Asian Pacific American Bar Association (NAPABA).Ms. Wong has volunteered her time and expertise to the boards of diverseorganizations, including Ideastream, the Ohio State Bar Foundation, Town Hall, St.Vincent Hospital Health Care System, United Way Services, The Diversity Centerof Northeast Ohio, Notre Dame College, Cuyahoga Community CollegeFoundation, Northeast Ohio Council on Higher Education and the nationaladvisory boards of Cleveland State University and SUNY Buffalo Law Schools. Ms.Wong is an avid educator, reader and writer. She is a charter founding member ofthe Ohio Supreme Court CLE Commission and Ohio Supreme Court Racial TaskForce, as well as a life member of the Ohio State Bar Foundation and Federal BarAssociation. She has been appointed by the Ohio Attorney General's Office as aspecial counsel to represent Ohio universities for more than 20 years. Ms. Wonghosts two live radio talk shows in New York City on AM1480 and AM1380; and onThursday evenings at Chataboutit.com, a live streaming radio channel through CBSRadio Network. She resides in Cleveland with her husband and two children.

For All Immigrants, By An Immigrant

Margaret W. Wong, Esq.The Im

migran

t’s Way

Margaret W

. Won

g, Esq.

3rd Edition

PS32421-Margaret_Law_3rd.qxp 1/20/2010 4:50 PM Page 1

The Immigrant's Way By: Margaret W. Wong

AUTHOR

Margaret W. Wong is a licensed, practicing immigration lawyer who has been representing foreign borns since 1977. Amongst other accolades and honors, she has been inducted into the Ohio Women's Hall of Fame, is a recipient of the Ellis Island Medal of Honor, and served as the first Asian American president of the Northeastern Chapter of the Federal Bar Association. Her law firm handles over 5,000 matters with foreign borns each year, with offices in Cleveland, New York, Atlanta, Columbus, and Detroit. She resides in Cleveland with her husband and two children. She is a life member of the 6th Circuit and 8th Judicial District. She is listed as an Ohio Super Lawyer and Ohio Leading Lawyer, and as one of Cleveland Magazine's Most Interesting People. She sits on the Boards of United Way, St. Vincent Charity Hospital, and Notre Dame College in Cleveland. She is an avid educator, reader, and writer. Currently she is the co-chair of the Immigrant Law Committee of NAPABA. She is a Charter founding member of the Ohio Supreme Court CLE Commission and Ohio Supreme Court Racial Task Force, and a life member of the Ohio State Bar Foundation and Federal Bar Association. She currently sits on the National Advisory Committee of the Cleveland State University Law School and the State University of New York at Buffalo Law School.

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TABLE OF CONTENTS

PRE-SECTION CHAPTERS

• Preface • Dedication • Alien • Acknowledgements • Prologue • Introduction • The American Dream • Money Talks • Do More Foreign Borns Compromise Safety for the US? • Being Foreign-Born in America

SECTION I: HISTORY OF IMMIGRATION AND IMMIGRATION LAW

1. Timeline of American Immigration History 2. Pre-Republic

a. Ancient Discovery b. European Discovery 1492 c. Spanish d. Huguenots (French Protestants) e. English and Scottish f. French g. Pennsylvania Dutch and Quakers h. Dutch i. Slaves

3. Independence, 1776 4. Building the New American Frontier (ca. 1821-1880)

a. Irish b. Chinese c. Germans d. Scandinavians e. Norwegians f. Swedes g. Finns

5. The Immigrant Nation (ca. 1881-1913) a. Italians b. Greeks c. Hungarians d. Ukrainians e. Poles f. Jews of Eastern Europe and Russia g. Mexicans h. French Canadians

6. World War I, 1914 7. The Great Depression, 1929 8. World War II, 1939 9. Post-World War II (1945 onwards)

a. Refugees b. The Bracero Program and Illegal Immigration

10. Immigration and Reform During the Cold War 1945 to 1980 a. Arabs

b. Asian Indians c. Central Americans d. Communist China e. Cubans f. Dominicans g. Haitians h. Jamaicans i. Koreans j. Puerto Ricans k. South Americans l. The American Civil Rights Movement m. Vietnamese

SECTION II: IMMIGRATION PAPERWORK AND LEGAL PROCESS

1. Immigration Law Changes 1980 to Present 2. Immigration Law from 1980-2005 3. 66 Points to Remember 4. Non-immigrant Visas

a. General b. Visa waiver Countries c. Other Non-immigrant visa categories d. student visas e. work permits f. H-1B g. E-3 h. TN i. NIV Quotas

5. Temporary Protected Status and Deferred Enforced Departure 6. Green Cards

a. General b. Five Ways to Get a Green Card

7. Green Card Processing Scenarios (including 245(i)) 8. U.S. CitizenshipM 9. Illegal Entry/Losing Status, Detention, and Deportation

a. Deportation v. Removal b. Criminal Trouble c. Students losing status d. Voluntary Departure e. Taking Your Case to Court f. Final Orders of Deportation g. Detention h. Real ID Act

10. Other issues concerning foreign borns in this country a. Child Status Protection Act b. Crimes and moral turpitude c. Media Influences d. Cultural Clash: Different skin color e. English speaking ability f. Educating the next generation g. Incarceration and Deportation h. Other Problems With the Immigration System i. Do's and Don'ts for Foreign Borns j. Important Changes in Immigration Laws for the 1980's k. Filing Tips

11. List of Acronyms/Abbreviations 12. Glossary and explanations 13. Resources

POST-SECTION CHAPTERS

• Works cited • Contact Information

Immigration Practice 2009-2010 Edition By: Robert C. Divine

Contributing author: R. Blake Chisam

Immigration Practice guides you through the aspects of immigration law practice in one volume. It includes 3,000+ footnotes citing statutes, regulations, court and administrative cases, policy memos, operational instructions, agency interpretive letters, websites, and more.

This reference book merges the practical with helpful commentary and analysis. Explanations are written in clear and easy to understand language. Substantive issues and actual procedures are described in the book, complete with checklists, required supporting evidence, and other essential information needed for completing a proper application and/or petition.

This book received testimonials from Daryl Buffenstein, Peter Williamson, Dale M. Schwartz, Elizabeth Stern, Joseph K. Venishnick, Ira L. Mazer, Jeffrey Kantor, Petro Morgos, Jonathan David Guze, Byron Toben, Andre Michael Wang, Philip Berns, and Seung-Ho Choe

AUTHOR

Robert C. Divine is the Chairman of the Immigration Group of Baker, Donelson, Bearman, Caldwell, & Berkowitz, P.C., a law firm of 560 lawyers and public policy advisors with offices in 14 cities from Washington, D.C. to New Orleans. Mr. Divine served from July 2004 until November 2006 as Chief Counsel and for a time Acting Director of U.S. Citizenship & Immigration Services (USCIS). He is the author of Immigration Practice, a 1,600 page practical treatise on all aspects of U.S. immigration law that is revised and reprinted annually to reflect the law's constant changes. He has practiced immigration law since 1986 and is the current Chair of the American Immigration Lawyers Association's Interagency Committee. His practice includes all aspects of U.S. immigration law, representing large and small international and domestic employers, family sponsors, investment regional centers, and individual foreign nationals. He has also litigated significant business matters, including class action employment discrimination, contract, commercial, product liability, antitrust, ERISA benefits, business torts (including RICO, misrepresentation, Consumer Protection Act), and immigration-related criminal matters.

CONTRIBUTOR

R. Blake Chisam is currently Legal Counsel to the Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law of the United States House of Representatives. Prior to his appointment he practiced exclusively in the area of Immigration and Nationality Law as a partner in the firm of Chisam & Majid. He advised organizations with respect to immigration-related policy, employment, civil rights, and health care law matters, including related white-collar criminal and regulatory compliance issues. Mr. Chisam is an active member of the American Immigration Lawyers Association ("AILA"), for which he currently serves on its Business Litigation committee, and the American Bar Association ("ABA"). In October 2000, Mr. Chisam and his partner Jasmine A. Majid were awarded the prestigious Meritorious Public Service Award from the Director of the U.S. Department of Justice’s Executive Office for Immigration Review, which was presented by then Attorney General Janet Reno, in recognition of their "tireless and distinguished pro bono efforts on behalf of unrepresented aliens detained by the Immigration and Naturalization Service." Mr. Chisam has lectured on immigration law to law students at universities across the U.S., and he is a frequent author and lecturer to professional associations, academic symposia and community groups. He is admitted to practice in New York, Maryland, Pennsylvania and a host of federal courts.

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IMMIGRATION PRACTICE 2009-2010 EDITION BY ROBERT C. DIVINE

TABLE OF CONTENTS

DEALING WITH CLIENTS, GOVERNMENT AGENCIES AND THE LAW

Chapter 1

CLIENT CONTACTS AND PREPARATION OF FILINGS

§ 1-1. Introduction.

§ 1-2. Phone Calls.

§ 1-3. First Interview.

§ 1-4. Fee Arrangements.

§ 1-5. Questionnaires.

§ 1-6. Forms and Fees.

§ 1–6(a). Forms.

§ 1–6(a)(1). Availability of Forms.

§ 1-6(a)(2). Form Nomenclature and Versions.

§ 1-6(a)(3). Form Completion.

§ 1-6(b). Fees.

§ 1-6(c). Biometrics.

§ 1-6(d). Photographs.

§ 1-7. Preparing Applications.

§ 1-8. Documents.

§ 1-9. File Organization.

§ 1-10. Later Client Communications.

§ 1-11. Interviews and Record Checks by Agencies.

Chapter 2

DEALING WITH AGENCIES


§ 2-2. Department of Homeland Security and Department of Justice (formerly INS).

§ 2-2(a). Department of Homeland Security.

§ 2-2(a)(1). U.S. Citizenship & Immigration Services.

§ 2-2(a)(1)(A). District and Field Offices.

§ 2-2(a)(1)(B). Service Centers.

§ 2-2(a)(1)(C). Application Support Centers.

§ 2-2(a)(1)(D). Asylum and Refugee Offices.

§ 2-2(a)(1)(E). Offices Overseas.

§ 2-2(a)(1)(F). Customer Service.

§ 2-2(a)(1)(G). National Security and Records.

§ 2-2(a)(1)(H). Office of Citizenship.

§ 2-2(a)(1)(I). Administrative Reopening, Reconsideration, and Appeal.

§ 2-2(a)(2). U.S. Customs & Immigration Enforcement (ICE).

§ 2-2(a)(3). U.S. Customs & Border Protection (CBP).

§ 2-2(b). Department of Justice (DOJ).

§ 2-2(b)(1). Executive Office of Immigration Review (EOIR).

§ 2-2(b)(1)(A). Office of the Chief Immigration Judge (OCIJ).

§ 2-2(b)(1)(B). Board of Immigration Appeals (BIA).

§ 2-2(b)(1)(C). Office of Chief Administrative Hearings Officer (OCAHO).

§ 2-3. Department of State.

§ 2-3(a). Consulates.

§ 2-3(b). Visa Office.

§ 2-3(c). Passport Offices and BAR.

§ 2-3(d). Services for U.S. Citizens and Residents Traveling Abroad.

§ 2-3(e). J-1 Exchange Visitor Program Designation and Waivers.

§ 2-4. Department of Labor.

§ 2-4(a). Employment Training Administration.

§ 2-4(b). Wage and Hour Division.

§ 2-5. Other Agencies.

§ 2-5(a). Department of Commerce.

§ 2-5(b). Department of Treasury.

§ 2-5(c). Social Security Administration.

§ 2-5(d). Department of Health and Human Services.

§ 2-6. Congressional Offices.

Chapter 3

REPRESENTATION BY ATTORNEYS AND NONPROFIT AGENCIES


§ 3-2. Rules Concerning Representation.

§ 3-3. Right to Representation.

§ 3-4. Free Legal Service Providers.

§ 3-5. Notice of Representation.

§ 3-6. Dual Representation and Ethics.

§ 3-7. Professional Support.

Chapter 4

REQUESTS FOR GOVERNMENT FILES


§ 4-2. Department of Homeland Security.

§ 4-3. State Department.

§ 4-4. Department of Justice.

§ 4-5. Department of Labor.

Chapter 5

SOURCES OF LAW


§ 5-2. Statutes.

§ 5-3. Regulations.

§ 5-4. Policy Statements, etc.

§ 5-5. Administrative Cases.

§ 5-6. Reading Rooms.

§ 5-7. Other Current Sources.

§ 5-8. Other Internet Sites.

Part II

THE IMMIGRATION PROCESS

Chapter 6

INTRODUCTION TO IMMIGRATION PROCEDURES


§ 6-2. Nonimmigrant Status.

§ 6-3. Obtaining Permanent Residence.

§ 6-4. Maintaining Permanent Residence.

§ 6-5. Removal for Inadmissibility and Deportability.

§ 6-6. Naturalization and Citizenship.

§ 6-7. Analogy.

Chapter 7

NONIMMIGRANT (TEMPORARY) VISAS AND STATUS: ACQUIRING, USING, EXTENDING, AND CHANGING THEM


§ 7-2. USCIS Petitions.

§ 7-2(a). Classifications Requiring USCIS Petitions.

§ 7-2(b). Preliminary Filings and Procedures.

§ 7-2(c). General I-129 Filing Procedures.

§ 7-2(d). Disposition of Petitions.

§ 7-2(e). Multiple Locations, Employers, and Beneficiaries.

§ 7-2(e)(1). Multiple Locations.

§ 7-2(e)(2). Multiple Employers.

§ 7-2(e)(3). Multiple Beneficiaries.

§ 7-2(e)(4). L-1 Differences.

§ 7-2(e)(5). Filing of Petitions by Agents and Contractors (H, O, P).

§ 7-2(f). Effect of Strikes and Dismissal.

§ 7-2(g). Time Limitations and Extensions.

§ 7-2(h). Changed Circumstances.

§ 7-3. Nonimmigrant Visas.

§ 7-3(a). Special Procedures for U.S. Citizens, Canadians and Commonwealth Nations (Easier) and Other Countries (Harder).

§ 7-3(b). Place/Manner of Visa Application.

§ 7-3(b)(1). In Person at Consulate Near Residence.

§ 7-3(b)(2). By Mail.

§ 7-3(b)(3). “Third-Country Processing.”

§ 7-3(c). Eligibility.

§ 7-3(c)(1). Choosing a Nonimmigrant Classification.

§ 7-3(c)(2). Family Members.

§ 7-3(c)(3). DOS Partial Deference to USCIS Petition Approvals.

§ 7-3(c)(4). Nonimmigrant Intent.

§ 7-3(c)(4)(i). “Home Abroad” Requirement.

§ 7-3(c)(4)(ii). “Temporary” Requirement.

§ 7-3(c)(4)(iii). Effect of Desire for or Steps Toward Permanent Residence.

§ 7-3(c)(4)(iv). Documentation.

§ 7-3(d). Application Package.

§ 7-3(e). Application Procedure.

§ 7-3(e)(1). Approval.

§ 7-3(e)(2). Visa Validity.

§ 7-3(e)(3). Expired Passports and Visa Transfers.

§ 7-3(e)(4). Side Travel to Canada, Mexico and Adjacent Islands.

§ 7-3(e)(5). Visa Refusals.

§ 7-3(e)(6). Review of Refusals.

§ 7-3(e)(6)(i). Reconsideration.

§ 7-3(e)(6)(ii). Supervisory Review.

§ 7-3(e)(6)(iii). New Consulate Application.

§ 7-3(e)(6)(iv). Advisory Opinion.

§ 7-3(e)(6)(v). Reapplication.

§ 7-3(e)(6)(vi). Visa Office Complaint.

§ 7-3(e)(6)(vii). Nonreviewability.

§ 7-3(e)(6)(viii). Later Effect of Refusal.

§ 7-3(e)(7). Visa Revocation/Cancellation/Reinstatement.

§ 7-4. Admission, Parole, and Removal for Inadmissibility.

§ 7-4(a). Inspection.

§ 7-4(a)(1). Advance Inspection.

§ 7-4(a)(2). Port Inspection.

§ 7-4(a)(3). Documents and Biometrics.

§ 7-4(a)(4). Secondary Inspection and Special Registration.

§ 7-4(b). Admission.

§ 7-4(c). Removal Before Admission.

§ 7-4(c)(1). “Expedited Removal” Before Admission.

§ 7-4(c)(2). Withdrawal of Application Before Removal Proceedings.

§ 7-4(c)(3). Detention and Parole.

§ 7-4(c)(4). Application for Asylum or Withholding of Removal.

§ 7-4(c)(5). Withdrawal During Proceedings.

§ 7-4(c)(6). Removal Proceedings: Entry.

§ 7-4(c)(7). Waivers.

§ 7-4(c)(8). Removal Notice.

§ 7-4(c)(9). Hearing Procedures Concerning Inadmissibility.

§ 7-4(c)(10). Removal Hearing Substance.

§ 7-4(c)(11). Immigration Judge’s Decision: Admission or Removal.

§ 7-4(c)(12). Appeals.

§ 7-4(c)(13). Other Penalties.

§ 7-4(d). Maintenance and Violation of Nonimmigrant Status.

§ 7-5. Extensions and Change of Nonimmigrant Status.

§ 7-5(a). Special Classifications.

§ 7-5(b). The I-129 Group.

§ 7-5(b)(1). Extension of Stay.

§ 7-5(b)(1)(i). Changed Circumstances of Employment.

§ 7-5(b)(2). Change of Status.

§ 7-5(c). The I-539 Group.

§ 7-5(d). General Eligibility and Timing.

§ 7-5(e). Action on Change/Extension.

§ 7-5(f). Denial of Change/Extension.

§ 7-5(g). Approval of Change/Extension.

§ 7-5(h). Visa Renewal/Revalidation § 7-5(h)(1). H, L, O, P and Q Classifications § 7-5(h)(2). All Classifications § 7-5(h)(3). Visa Revalidation § 7-5(h)(4). Automatic Contiguous Country Revalidation § 7-5(i). Replacement and Surrender of the I-94 Card.

Chapter 8

PROCESSING TOWARD PERMANENT RESIDENCE


§ 8-2. Paths to Substantive Eligibility.

§ 8-3. Family-Based and Employment-Based Petitions.

§ 8-3(a). Choosing Method of Processing.

§ 8-3(b). Filing the Petition.

§ 8-3(c). Petition Denials.

§ 8-3(c)(1). Marriage Fraud.

§ 8-3(d). Petition Approval.

§ 8-3(e). Priority Dates, Visa Numbers and Backlogs.

§ 8-3(f). Validity, Revocation and Conversion of Petitions.

§ 8-4. Derivative Beneficiaries, Alternate Chargeability and Children.

§ 8-4(a). Derivative Beneficiaries.

§ 8-4(a)(1). Eligibility.

§ 8-4(a)(2). Procedures.

§ 8-4(b). Countries of “Chargeability.”

§ 8-4(c). Derivative Status vs. Alternate Chargeability.

§ 8-4(d). “Child Status” and Protection.

§ 8-5. Effect on Nonimmigrant Status.

§ 8-6. Visa Processing vs. Adjustment of Status.

§ 8-6(a). Comparison of Procedures.

§ 8-6(b). Switching Processing Locations/Methods.

§ 8-7. Adjustment of Status.

§ 8-7(a). Various Uses of Adjustment.

§ 8-7(b). Eligibility.

§ 8-7(b)(1). Inspection and Admission or Parole.

§ 8-7(b)(2). Continuous Lawful Status.

§ 8-7(b)(2)(i). No Unauthorized Employment.

§ 8-7(b)(2)(ii). Lawful Status Since Entry.

§ 8-7(b)(2)(iii). Legal Status at Filing Time.

§ 8-7(b)(3). Immediate Visa Availability.

§ 8-7(b)(4). Admissibility.

§ 8-7(b)(5). Expanded Eligibility, Penalty Fees, and Disqualifications.

§ 8-7(b)(6). Discretionary Denial.

§ 8-7(c). Application Package.

§ 8-7(d). Filing Procedures.

§ 8-7(d)(1). Delays or Changes in Processing.

§ 8-7(d)(2). Foreign Travel Restrictions.

§ 8-7(d)(2)(i). Advance Parole Request.

§ 8-7(d)(2)(ii). H & L Returns Without Advance Parole.

§ 8-7(d)(3). Interview.

§ 8-7(d)(4). Waiver of Interview.

§ 8-7(e). Approval.

§ 8-7(f). Denial.

§ 8-7(g). Rescission.

§ 8-8. Immigrant Visa Processing.

§ 8-8(a). Eligibility and Choice.

§ 8-8(b). General Procedures.

§ 8-8(b)(1). NVC’s Initial Process in Standard Situation.

§ 8-8(b)(2). Variations.

§ 8-8(b)(3). Cable Notification/Advance Processing.

§ 8-8(b)(4). Lottery Applicants.

§ 8-8(c). Choosing a Consulate.

§ 8-8(c)(1). Aliens Residing Abroad.

§ 8-8(c)(2). Aliens in the U.S.

§ 8-8(c)(3). “Third Countries.”

§ 8-8(c)(4). Transfer of Consulates.

§ 8-8(d). Packets and Processing.

§ 8-8(d)(1). Instructions for Applicants.

§ 8-8(d)(1)(i). Documentary Qualification.

§ 8-8(d)(1)(ii). Police and Military Certificates.

§ 8-8(d)(1)(iii). Limits on Immigrant Visa from Past Unlawful Presence.

§ 8-8(d)(1)(iv). NCIC Criminal Record Checks and Fingerprints.

§ 8-8(d)(2). Appointment Notice.

§ 8-8(d)(2)(i). Medical Examinations.

§ 8-8(d)(2)(ii). Interview.

§ 8-8(d)(3). Derivative Beneficiaries.

§ 8-8(e). Action on Application.

§ 8-8(e)(1). Visa Numbers.

§ 8-8(e)(2). Approval of Visa.

§ 8-8(e)(3). Termination of Registration.

§ 8-8(e)(4). Proceedings at Port of Entry.

§ 8-8(e)(4)(i). Documents.

§ 8-8(e)(4)(ii). Removal for Inadmissibility.

§ 8-8(e)(4)(iii). Admission.

Chapter 9

MAINTAINING PERMANENT RESIDENCE STATUS

§ 9-1. Obtaining, Carrying and Replacing I-551.

§ 9-1(a). Obtaining I-551.

§ 9-1(b). “Replacing” and “Renewing” I-551.

§ 9-1(c). Procedures.

§ 9-1(d). Application Package.

§ 9-2. Rights and Restrictions.

§ 9-2(a). Rights of Permanent Residents.

§ 9-2(b). Loss of Permanent Residence Status.

§ 9-2(c). Foreign Travel for Permanent Residents.

§ 9-2(c)(1). Generally.

§ 9-2(c)(2). Removal of Returning Permanent Residents.

§ 9-2(c)(2)(i). Seeking Admission vs. Avoiding Removal.

§ 9-2(c)(2)(ii). Waivers for Inadmissibility and Deportability.

§ 9-2(c)(2)(iii). Removal Proceedings for Inadmissibility.

§ 9-2(c)(3). Abandonment.

§ 9-2(c)(3)(i). Effect of Abandonment Finding.

§ 9-2(c)(3)(ii). Lifting “Green Cards.”

§ 9-2(c)(3)(iii). Renunciation.

§ 9-2(c)(3)(iv). New Immigrant Visa Processing.

§ 9-2(c)(4). Reentry Permits.

§ 9-2(c)(4)(i). For Extended Absences.

§ 9-2(c)(4)(ii). Passport Purposes.

§ 9-2(c)(4)(iii). Application Package.

§ 9-2(c)(5). Other Documentary Requirements for Entry.

§ 9-2(c)(5)(i). Returning Resident Visas.

§ 9-2(c)(5)(ii). Immigrant Visa Waivers.

§ 9-2(c)(6). Alien Commuters.

§ 9-2(c)(7). Re-Immigrating.

Chapter 10

INADMISSIBILITY AND DEPORTABILITY GROUNDS AND THEIR WAIVER


§ 10-2. Procedures.

§ 10-2(a). Record Checks for Inadmissibility.

§ 10-2(b). Removing Oneself from the Lookout System.

§ 10-3. Variations.

§ 10-4. Effective Dates of Revisions.

§ 10-5. Waivers and Exceptions.

§ 10-6. Specific Inadmissibility and Deportability Grounds.

§ 10-6(a). Health-Related Grounds.

§ 10-6(b). Criminal and Related Grounds.

§ 10-6(b)(1). Grounds.

§ 10-6(b)(1)(i). Crimes of Moral Turpitude.

§ 10-6(b)(1)(ii). Crimes of Violence.

§ 10-6(b)(1)(iii). Multiple Criminal Convictions.

§ 10-6(b)(1)(iv). Controlled Substance Violations.

§ 10-6(b)(1)(v). Controlled Substance Traffickers.

§ 10-6(b)(1)(vi). Aggravated Felonies.

§ 10-6(b)(1)(vii). Firearms Offenses.

§ 10-6(b)(1)(viii). Miscellaneous Crimes.

§ 10-6(b)(1)(ix). Domestic Crimes.

§ 10-6(b)(1)(x). AEDPA Crimes and Effect.

§ 10-6(b)(2). Immigration Strategies Concerning Crimes.

§ 10-6(b)(2)(i). Determining Conviction and Penalty.

§ 10-6(b)(2)(ii). Foreign Convictions.

§ 10-6(b)(2)(iii). Juvenile Convictions.

§ 10-6(b)(2)(iv). Finality of Conviction.

§ 10-6(b)(2)(v). Admission of Crimes.

§ 10-6(b)(2)(vi). Eliminating Convictions.

§ 10-6(b)(2)(vii). Plea Bargaining for DHS Restraint.

§ 10-6(b)(3). Waivers of Criminal Inadmissibility.

§ 10-6(c). Security and Related Grounds.

§ 10-6(d). Public Charge.

§ 10-6(d)(1). Inadmissibility Ground in General.

§ 10-6(d)(2). Family-Based Sponsorship Using Form I-864.

§ 10-6(d)(3). Deportability Ground.

§ 10-6(e). Labor Certification, Foreign Medical Graduates and Certifications for Health Care Workers.

§ 10-6(f). Immigration Violators.

§ 10-6(g). Misrepresentation and Non-registration.

§ 10-6(h). Stowaways.

§ 10-6(i). Smugglers.

§ 10-6(j). Documentation Requirements.

§ 10-6(k). Avoiding U.S. Military Service.

§ 10-6(l). Miscellaneous Inadmissibility Grounds.

§ 10-6(m). Miscellaneous Deportability Grounds.

§ 10-6(n). Unlawful Voting.

§ 10-7. Waivers of Inadmissibility and Deportability Grounds.

§ 10-7(a). Generalized Waivers.

§ 10-7(a)(1). Section 212(d)(3) Waivers for Nonimmigrants.

§ 10-7(a)(2). Cancellation of Removal.

§ 10-7(b). Specific Waivers.

§ 10-7(b)(1). Section 212(g) Medical Waivers.

§ 10-7(b)(2). Section 212(h) Criminal Inadmissibility and Section 212(i) Misrepresentation Waivers.

§ 10-7(b)(3). “Waiver” of the Post-Removal Bar.

§ 10-7(b)(4). Documentation Waivers.

§ 10-7(b)(5). J Two-Year Foreign Residency Waivers.

§ 10-7(b)(6). Refugee Waivers.

§ 10-7(b)(7). Deportability Waivers.

§ 10-7(c). Parole.

Chapter 11

REMOVAL PROCEEDINGS AND RELIEF FROM THEM


§ 11-2. Key Points.

§ 11-3. Pre-hearing Proceedings and Relief.

§ 11-3(a). Issuance of Notice to Appear (NTA).

§ 11-3(b). Service of NTA and Response with Address.

§ 11-3(c). Filing NTA with Immigration Judge and Hearing Notices.

§ 11-3(d). In Absentia Hearings and Orders.

§ 11-3(e). Attorney Representation.

§ 11-3(f). Arrest, Detention, and Detainer.

§ 11-3(g). Special Procedures for Criminal Aliens.

§ 11-3(h). Pre-Removal Remedies (Prosecutorial Restraint).

§ 11-3(h)(1). Informal Discretion.

§ 11-3(h)(2). Deferred Action.

§ 11-3(h)(3). Administrative Voluntary Departure.

§ 11-4. Removal Hearings.

§ 11-4(a). Scheduling, Mechanics, and Motions.

§ 11-4(b). Master Calendar Hearing: Alien’s Response and Requests for Relief.

§ 11-4(c). Place, Time, and Manner of Hearings.

§ 11-4(d). Evidence.

§ 11-4(e). Burdens of Proof.

§ 11-4(f). Defenses and Strategies.

§ 11-4(g). Juveniles and Incompetents in Removal Proceedings.

§ 11-4(h). Administrative Removal of Non-Permanent or Conditional Resident

Aggravated Felons.

§ 11-4(i). Judicial Removal.

§ 11-5. Relief from Removal.

§ 11-5(a). General Limitations on Relief.

§ 11-5(b). Departure Before (or After) Removal Hearing.

§ 11-5(c). Administrative Closure or Continuance.

§ 11-5(d). Adjustment of Status.

§ 11-5(e). Registry.

§ 11-5(f). Cancellation of Removal and Adjustment of Status.

§ 11-5(g). Waiver of Deportability Grounds.

§ 11-5(h). Asylum, Withholding of Removal, CAT, Temporary Protected Status, and Parole.

§ 11-5(i). Voluntary Departure.

§ 11-5(j). Private Bills.

§ 11-5(k). Good Moral Character.

§ 11-5(l). Factors for Discretionary Relief.

§ 11-5(m). Extreme Hardship.

§ 11-6. Decision and Appeal.

§ 11-6(a). BIA Appeals.

§ 11.6(b). Judicial Review.

§ 11-7. Motions to Reopen/Reconsider.

§ 11-8. Execution of Removal Order.

§ 11-8(a). District Director’s Stay of Removal.

§ 11-8(b). Permission to Reapply for Admission.

§ 11-9. Proceedings Commenced before April 1, 1997.

Chapter 12

CITIZENSHIP


§ 12-2. Rights of Citizenship.

§ 12-3. Acquisition of Citizenship.

§ 12-3(a). Birth in the U.S.

§ 12-3(a)(1). Nationals and Compact State Citizens.

§ 12-3(b). Birth Abroad.

§ 12-3(b)(1). Evolved Requirements.

§ 12-3(b)(2). Present Requirements.

§ 12-3(b)(3). Documentation of Citizenship.

§ 12-3(c). Naturalization.

§ 12-3(c)(1). Procedures.

§ 12-3(c)(1)(i). Filing and Transfer.

§ 12-3(c)(1)(ii). Examination and Delay.

§ 12-3(c)(1)(iii). Oath Ceremony.

§ 12-3(c)(1)(iv). Denial and Appeal.

§ 12-3(c)(2). Application Package.

§ 12-3(c)(3). Eligibility.

§ 12-3(c)(3)(i). Permanent Residence.

§ 12-3(c)(3)(ii). Residence and Physical Presence, and Applications to Preserve Residence for Naturalization.

§ 12-3(c)(3)(iii). Good Moral Character.

§ 12-3(c)(3)(iv). Attached and Well-Disposed.

§ 12-3(c)(3)(v). Age.

§ 12-3(c)(3)(vi). English Literacy and Knowledge of History and Government.

§ 12-3(c)(3)(vii). Exclusions from Naturalization.

§ 12-3(c)(3)(viii). Special Classes.

§ 12-3(d). Automatic Citizenship and Certificates for Children.

§ 12-3(d)(1). Automatic Citizenship.

§ 12-3(d)(2). Certificates of Citizenship.

§ 12-3(d)(3). Prior Law Still Effective.

§ 12-4. Procedures Concerning Citizenship.

§ 12-4(a). U.S. Passport Applications.

§ 12-4(b). Certificates of Citizenship Applications.

§ 12-4(c). Other Citizenship-Related Applications.

§ 12-4(d). Effect, Replacement, and Cancellation of Citizenship Documents.

§ 12-5. Loss of Citizenship.

§ 12-5(a). Revocation of Naturalization.

§ 12-5(b). Other Revocations.

§ 12-5(c). Expatriation.

§ 12-5(c)(1). Expatriating Acts.

§ 12-5(c)(2). Defenses.

§ 12-5(c)(3). Circumstances and Procedures.

§ 12-5(c)(3)(i). State Department Proceedings.

§ 12-5(c)(3)(ii). DHS Proceedings.

§ 12-5(c)(3)(iii). Conflict of Jurisdiction.

§ 12-5(c)(3)(iv). Retroactive Restoration of Citizenship.

Part III

PATHS TO PERMANENT RESIDENCE

Chapter 13

“LOTTERIES” FOR PERMANENT RESIDENCE


§ 13-2. Permanent Diversity Program.

§ 13-2(a). Chargeability Rules for “Native” Country.

§ 13-2(b). Eligible Countries.

§ 13-2(c). Education/Work Experience Requirement.

§ 13-2(d). Procedures.

§ 13-2(e). Application, Envelope, and Mailing.

§ 13-2(f). Effect of Unsuccessful Application.

Chapter 14

FAMILY-BASED AVENUES TO PERMANENT RESIDENCE


§ 14-2. Family-Based Immigration Petitions.

§ 14-3. General Analysis.

§ 14-4. Relationship Categories and Backlogs.

§ 14-5. Procedures.

§ 14-5(a). Where to File.

§ 14-5(b). Priority Dates.

§ 14-5(c). Petition Packages.

§ 14-6. Proving Petitioner Is a USC or LPR.

§ 14-7. Proving the Qualifying Relationship.

§ 14-7(a). Spousal Relationship.

§ 14-7(a)(1). Procedural Alternatives.

§ 14-7(a)(2). Definition and Validity.

§ 14-7(a)(2)(i). Prior Marriages.

§ 14-7(a)(2)(ii). Troubles, Separation, and Abuse.

§ 14-7(a)(3). Documentation.

§ 14-7(a)(4). K Petitions for Fiancé(e) or Spouse.

§ 14-7(a)(5). Obstacles to Marriage Fraud.

§ 14-7(a)(5)(i). Conditional Permanent Residence.

§ 14-7(a)(5)(ii). Limits on Filings and Adjustment.

§ 14-7(a)(5)(iii). Marriage During “Proceedings.”

§ 14-7(a)(5)(iv). Miscellaneous IMFA Matters.

§ 14-7(a)(5)(v). Fraudulent Marriages.

§ 14-7(a)(6). Widow(er)s of U.S. Citizens.

§ 14-7(b). Parent-Child Relationships.

§ 14-7(b)(1). “Unmarried.”

§ 14-7(b)(2). “Under 21.”

§ 14-7(b)(3). Nature and Documentation of Relationship.

§ 14-7(b)(4). Orphan Petitions.

§ 14-7(b)(4)(i). Adoptive Parents’ Eligibility.

§ 14-7(b)(4)(ii). Child’s Eligibility.

§ 14-7(b)(5). Hague Convention Adoptees.

§ 14-7(c). Sibling Relationships.

§ 14-7(d). Conversion and Survival of Family Categories.

§ 14-8. Amerasian Petitions.

§ 14-9. Relatives of Legalized Aliens.

§ 14-9(a). Temporary Family Unity Program.

§ 14-9(b). Permanent Residence Visa Numbers (“LB” Category).

§ 14-10. Derivative Beneficiaries.

§ 14-11. Example Strategies.

§ 14-12. Family-Based Nonimmigrant Status.

§ 14-12(a). N Nonimmigrants.

§ 14-12(b). Family 2A Spouse and Children (“V”).

§ 14-13. Special Immigrant Juveniles.

Chapter 15

EMPLOYMENT-BASED AVENUES TO PERMANENT RESIDENCE


§ 15-1(a). Categories and Allocations.

§ 15-1(b). Visa Waiting Lists.

§ 15-1(c). Job Offers and Labor Certifications.

§ 15-1(d). Licensure.

§ 15-1(e). Job Duration.

§ 15-1(f). Procedures.

§ 15-1(g). Who May Petition.

§ 15-1(h). Change of Employers.

§ 15-1(i). Changes in Ownership/Name of Employer.

§ 15-1(j). Transition to 1990 Act.

§ 15-1(k). Basic Petition Package.

§ 15-1(l). Ability to Pay Wage.

§ 15-1(m). Qualifications Required by Job and Held by Alien.

§ 15-2. Categories.

§ 15-2(a). First Preference.

§ 15-2(a)(1). Aliens with Extraordinary Ability.

§ 15-2(a)(2). Outstanding Professors and Researchers.

§ 15-2(a)(2)(i). Multiple Criteria Eligibility Tests.

§ 15-2(a)(3). Multinational Executives and Managers.

§ 15-2(b). Second Preference.

§ 15-2(b)(1). National Interest Waiver of Job-Offer Requirement.

§ 15-2(b)(2). Professionals with Advanced Degrees.

§ 15-2(b)(3). Aliens of Exceptional Ability in the Sciences, Arts, or Business.

§ 15-2(b)(3)(i). DHS Rules.

§ 15-2(b)(3)(ii). DOL’s Schedule A Group II Labor Certification Exemption.

§ 15-2(b)(3)(iii). Special Handling for College and University Teachers.

§ 15-2(c). Third Preference.

§ 15-2(c)(1). Professionals.

§ 15-2(c)(2). Skilled Workers.

§ 15-2(c)(2)(i). DOL’s Schedule A Group I for Nurses and Physical Therapists.

§ 15-2(c)(3). Other Workers.

§ 15-2(d). Strategic Issues for the First, Second, and Third Preferences.

§ 15-2(d)(1). Comparative Analysis Framework.

§ 15-2(d)(2). Comparing Factor-Oriented Categories.

§ 15-2(d)(3). Multiple Filings.

§ 15-2(d)(4). Professionals, H-1B, Labor Certification, and Preferences.

§ 15-2(e). Fourth Preference for Special Immigrants, Including Religious Workers.

§ 15-2(f). Fifth Preference for Investors.

§ 15-2(f)(1). Procedures.

§ 15-2(f)(2). Petition Package.

§ 15-2(f)(3). Supporting Evidence Issues.

§ 15-2(f)(3)(i). New Commercial Enterprise.

§ 15-2(f)(3)(ii). Required Amount of Capital.

§ 15-2(f)(3)(iii). Lawful Means.

§ 15-2(f)(3)(iv). Ten Full-Time Positions for Qualifying Employees.

§ 15-2(f)(3)(v). Management by Investor.

§ 15-2(f)(3)(vi). Multiple Investors.

§ 15-2(f)(4). Conditional Status and Fraud Provisions.

§ 15-2(f)(5). Pilot Program for Indirect Employment Creation.

§ 15-3. The Labor Certification Process.

§ 15-3(a). Statute, Regulations, and Guidelines.

§ 15-3(b). Procedures Overview.

§ 15-3(c). Preparing the Application Package.

§ 15-3(c)(1). Preparing to File PERM.

§ 15-3(c)(2). Nature of the Employment.

§ 15-3(c)(3). Bona Fide Job Opportunity.

§ 15-3(c)(4). What to Pay (“Prevailing Wage”).

§ 15-3(c)(5). Describing the Job Duties and Requirements.

§ 15-3(c)(6). Effect on “Preference” Category.

§ 15-3(c)(7). Articulation.

§ 15-3(c)(8). DOL Publications.

§ 15-3(c)(9). Licensing.

§ 15-3(c)(10). Other Drafting Considerations.

§ 15-3(c)(11). Alien’s Credentials.

§ 15-3(c)(12). Timing of Credentials.

§ 15-3(c)(13). Business Necessity.

§ 15-3(d). Steps Leading Up to Filing Application.

§ 15-3(d)(1). Prevailing Wage Determination Request.

§ 15-3(d)(2). Job Order.

§ 15-3(d)(3). Advertisement.

§ 15-3(d)(4). Posting.

§ 15-3(d)(5). Other Recruitment.

§ 15-3(d)(6). Receipt and Review of Résumés.

§ 15-3(d)(7). Conducting Interviews.

§ 15-3(d)(8). Recruitment Report.

§ 15-3(d)(9). Legitimate Reasons for Rejections.

§ 15-3(e). DOL Adjudication or Audit.

§ 15-3(f). Reconsideration and/or Appeals.

§ 15-3(g). New Applications.

§ 15-3(h). Special Procedures for Certain Occupations.

§ 15-3(h)(1). Schedule A Occupations.

§ 15-3(h)(2). “Special Handling” Procedures: Most Qualified.

College and University Teachers.

§ 15-3(h)(3). Sheepherders.

§ 15-3(h)(4). DOL Pilot Program.

§ 15-3(h)(5). Live-In Workers.

§ 15-3(i). Issues Arising After Certification.

§ 15-3(i)(1). Validity of Certification.

§ 15-3(i)(2). Amendments to Certification.

§ 15-3(i)(3). Change of Ownership, Employer, or Alien.

§ 15-3(i)(4). Relocation of Work.

§ 15-3(i)(5). Changes in Salary and/or Duties.

Chapter 16

IMMIGRATION TO AVOID PERSECUTION AND CHAOS


§ 16-2. Refugee Program.

§ 16-2(a). Procedures.

§ 16-2(b). Application for Refugee Status.

§ 16-2(c). Eligibility.

§ 16-2(d). Spouse and Children, and Other Family Members.

§ 16-2(e). Documentation, Work, and Travel.

§ 16-3. Asylum and Withholding of Removal.

§ 16-3(a). Procedures.

§ 16-3(a)(1). No Proceedings.

§ 16-3(a)(1)(i). Scheduling.

§ 16-3(a)(1)(ii). Interview.

§ 16-3(a)(1)(iii). Asylum Officer’s Disposition.

§ 16-3(a)(1)(iv). Special Rules for Certain Aliens.

§ 16-3(a)(2). In or After Proceedings.

§ 16-3(b). Application Package.

§ 16-3(c). Work Authorization.

§ 16-3(d). Approval and Revocation.

§ 16-3(e). Adjustment of Status.

§ 16-3(f). Spouse and Children.

§ 16-4. Substantive Standards for Refugee, Asylum, and Withholding Applications.

§ 16-4(a). Primary Standard: Persecution.

§ 16-4(a)(1). Supreme Court Rulings.

§ 16-4(a)(2). Regulations.

§ 16-4(a)(3). Other Issues.

§ 16-4(a)(4). Evidence and Credibility.

§ 16-4(b). Firm Resettlement.

§ 16-4(c). Mandatory Denial Grounds.

§ 16-4(d). Applicable Inadmissibility Grounds.

§ 16-4(e). Discretionary Denial of Asylum.

§ 16-5. Convention Against Torture.

§ 16-6. Parole.

§ 16-7. Provisions Affecting Persons From Certain Countries.

§ 16-7(a). Temporary Protected Status.

§ 16-7(a)(1). Countries and Designation Periods.

§ 16-7(a)(2). Eligibility.

§ 16-7(a)(3). Time to Register/Apply.

§ 16-7(a)(4). Application Package.


§ 16-7(a)(6). Effect of TPS Approval.

§ 16-7(a)(7). Termination of Country’s Designation.

§ 16-7(b). Lautenberg Amendment and Other Provisions for Soviets, Vietnamese, Laotians, and Cambodians.

§ 16-7(c). Chinese Student Protection Act.

§ 16-7(d). Adjustment of Certain Polish and Hungarian Parolees.

§ 16-7(e). Cuban, Nicaraguan, and Haitian Adjustment Acts.

§ 16-7(f). Suspension/Cancellation for Guatemalans, Salvadorans, and Certain Former Soviet Bloc Countries (NACARA).

Part IV

CLASSIFICATIONS FORTEMPORARY STATUS, AND COMPARATIVE PERMANENT OPPORTUNITIES

Chapter 17

TEMPORARY EMPLOYMENT-BASED CLASSIFICATIONS (AND INDUSTRY-SPECIFIC PERMANENT RESIDENCE MATTERS)


§ 17-2. Historical Perspective.

§ 17-3. Workers for Businesses with International Connections.

§ 17-3(a). Treaty Traders and Investors and Their Employees (E-1, E-2).

§ 17-3(a)(1). General Eligibility.

§ 17-3(a)(2). Strategies.


§ 17-3(a)(4). Application/Petition Package.

§ 17-3(a)(5). Specific Requirements.

§ 17-3(a)(5)(i). Applicable Treaty.

§ 17-3(a)(5)(ii). Nationality of Alien and Employer.

§ 17-3(a)(5)(iii). Qualifying Positions.

§ 17-3(a)(5)(iv). “Substantial” Trade or Investment.

§ 17-3(a)(6). Spouse and Children.

§ 17-3(b). Multinational Businesses: Executives, Managers, and Specialized Knowledge Workers (Temporary L-1 and Permanent “Priority Workers”).

§ 17-3(b)(1). Statutory Provisions.

§ 17-3(b)(2). L-1 and “Priority” Distinguished.

§ 17-3(b)(3). Procedures.

§ 17-3(b)(3)(i). “Priority” (Permanent) Residence.

§ 17-3(b)(3)(ii). L-1 (Temporary).

§ 17-3(b)(4). Petition Packages.

§ 17-3(b)(4)(i). L-1 (Temporary).

§ 17-3(b)(4)(ii). “Priority” (Permanent).

§ 17-3(b)(5). Specific Definitions and Requirements.

§ 17-3(b)(5)(i). Qualifying Organizations.

§ 17-3(b)(5)(ii). Managerial, Executive, and Specialized Knowledge Capacity.

§ 17-3(b)(5)(iii). One-Year Employment Abroad.

§ 17-3(b)(6). Special Problem: New U.S. Businesses.

§ 17-3(b)(7). Special Opportunity: Blanket L-1 Petitions.

§ 17-3(c). Permanent Residence Opportunities.

§ 17-3(d). Special Reporting Required for Foreign Businesses and Their Representatives.

§ 17-4. Workers for Any U.S. Business: Extraordinary Ability Aliens, Professionals, and Workers in Short Supply.

§ 17-4(a). Extraordinary Ability Aliens (O-1).

§ 17-4(a)(1). Eligibility and Petition Package.


§ 17-4(a)(3). Advisory Opinion.

§ 17-4(a)(4). Strategic Considerations.

§ 17-4(b). “Specialty Occupations” (H-1B).

§ 17-4(b)(1). Preliminary Considerations.

§ 17-4(b)(2). Statutory Provisions.

§ 17-4(b)(3). Procedures.

§ 17-4(b)(4). USCIS Petition Package.

§ 17-4(b)(4)(i). Professional Nature of the Position.

§ 17-4(b)(4)(ii). Professional Qualifications of the Alien.

§ 17-4(b)(4)(iii). H-1B Cap, Max, and Portability.

§ 17-4(b)(4)(iv). Chile and Singapore Treaties, and E-3 for Australian Nationals.

§ 17-4(b)(5). Labor Condition Application.

§ 17-4(b)(5)(i). Mechanics.

§ 17-4(b)(5)(i)(1). Completing Form ETA 9035.

§ 17-4(b)(5)(i)(2). Validity Period and Updates.

§ 17-4(b)(5)(i)(3). Employer’s “Labor Condition Statements.”

§ 17-4(b)(5)(ii). Complaints, Investigations, and Penalties.

§ 17-4(b)(5)(iii). H-1B “Dependent” Employers.

§ 17-4(c). NAFTA for Canadians and Mexicans.

§ 17-4(c)(1). Business Visitors.

§ 17-4(c)(1)(i). Listed Occupations and Professions.

§ 17-4(c)(1)(ii). Procedures.

§ 17-4(c)(1)(iii). Application Package.

§ 17-4(c)(2). Professionals (TN).

§ 17-4(c)(2)(i). Professions Included.

§ 17-4(c)(2)(ii). Procedures.

§ 17-4(c)(2)(iii). Canadian Application Package.

§ 17-4(d). Workers in Short Supply for Temporary Positions (H-2B).

§ 17-4(d)(1). Temporary Nature of Position.

§ 17-4(d)(2). Labor-Certification Requirement.

§ 17-4(d)(2)(i). Procedures.

§ 17-4(d)(2)(ii). Temporary Labor-Certification Application Package.

§ 17-4(d)(3). H-2B Petition Package.

§ 17-5. Workers in Specific Industries.

§ 17-5(a). Athletes and Performing Artists.

§ 17-5(a)(1). B Visitor Status.

§ 17-5(a)(2). O&P Status: The Statute.

§ 17-5(a)(2)(i). General Procedures.

§ 17-5(a)(2)(ii). Categories and Petition Packages.

§ 17-5(a)(2)(iii). Consultations.

§ 17-5(a)(2)(iv). Petitioners and Multiple Beneficiaries.

§ 17-5(a)(2)(v). Period of Stay.

§ 17-5(a)(2)(vi). Return Transportation Requirement.

§ 17-5(a)(3). Permanent Residence for Athletes and Performing Artists.

§ 17-5(b). Religious Workers.

§ 17-5(b)(1). The Statute.

§ 17-5(b)(2). Petition/Application Procedures.

§ 17-5(b)(2)(i). Immigrants.

§ 17-5(b)(2)(ii). Nonimmigrants.

§ 17-5(b)(3). Supporting Documents/Issues.

§ 17-5(b)(3)(i). Nature of Religious Organization.

§ 17-5(b)(3)(ii). Alien’s Previous Relationship and Work.

§ 17-5(b)(3)(iii). Nature of the Position.

§ 17-5(b)(3)(iv). Remuneration of Alien.

§ 17-5(b)(4). Other Options for Religious Workers.

§ 17-5(b)(4)(i). Alternatives for Immigrant Religious Workers.

§ 17-5(b)(4)(ii). Alternatives for Nonimmigrant Religious Workers.

§ 17-5(c). Medical Professionals.

§ 17-5(c)(1). Physicians.

§ 17-5(c)(1)(i). General Considerations.

§ 17-5(c)(1)(ii). Nonimmigrant Classifications.

§ 17-5(c)(1)(iii). Permanent Residence for Physicians.

§ 17-5(c)(2). Nurses.

§ 17-5(c)(2)(i). General Credentials: Degree, Exam, and Licensing.

§ 17-5(c)(2)(ii). Nonimmigrant Classifications for Registered Nurses.

§ 17-5(c)(2)(iii). Permanent Residence for “Professional Nurses.”

§ 17-5(c)(3). Other Health Care Workers.

§ 17-5(c)(4). Special Certification Required of Non-Physician Health Care Workers.

§ 17-5(d). Educators, Researchers, and Scholars.

§ 17-5(d)(1). Immigrant Options.

§ 17-5(d)(2). Nonimmigrant Options.

§ 17-5(d)(2)(i). General Classifications.

§ 17-5(d)(2)(ii). J-1 Categories.

§ 17-5(e). Agricultural Workers.

§ 17-5(e)(1). H-2A Temporary Workers.

§ 17-5(e)(1)(i). “Temporary or Seasonal” Requirement.

§ 17-5(e)(1)(ii). Agricultural Work Requirement.

§ 17-5(e)(1)(iii). Labor Certification.

§ 17-5(e)(1)(iv). Petition to USCIS.

§ 17-5(e)(1)(v). Conditions/ “Assurances.”

§ 17-5(f). Crewmen and Longshore Workers.

§ 17-5(f)(1). Issues Not Covered Here.

§ 17-5(f)(2). Nonimmigrant Classifications Available.

§ 17-5(f)(2)(i). B Visitors.

§ 17-5(f)(2)(ii). C-1 and TWOV Transits.

§ 17-5(f)(2)(iii). D Crewmen.

§ 17-5(f)(2)(iv). Other Classifications.

§ 17-5(f)(3). Parole.

§ 17-5(f)(4). Permanent Residence.

§ 17-5(g). Information Media Workers.

§ 17-5(h). Foreign and Multinational Governmental Officials.

§ 17-5(h)(1). Nonimmigrants (A, C, G and NATO).

§ 17-5(h)(1)(i). Principal Aliens.

§ 17-5(h)(1)(ii). Attendants, Servants, and Personal Employees.

§ 17-5(h)(1)(iii). Immediate Family Members.

§ 17-5(h)(1)(iv). Special Rules of Admissibility and Deportability.

§ 17-5(h)(1)(v). Procedures.

§ 17-5(h)(1)(vi). “Diplomatic” and “Official” Visas.

§ 17-5(h)(2). Permanent Residence Opportunities.

§ 17-5(h)(3). Citizenship of Diplomats’ Children Born in the U.S.

§ 17-6. Government Informants and Victims.

Chapter 18

VISITORS, STUDENTS, AND TRAINEES


§ 18-2. Summary of Classifications.

§ 18-3. Visitors.

§ 18-3(a). B-1/B-2 Visitors.

§ 18-3(a)(1). General Procedures and Requirements.

§ 18-3(a)(2). Allowable Activities and Time Periods for Visitors.

§ 18-3(a)(2)(i). B-2 Visitors for Pleasure.

§ 18-3(a)(2)(ii). B-1 Visitors for Business.

§ 18-3(b). Other Arrangements for Visitors.

§ 18-3(b)(1). North American Free Trade Agreement (NAFTA).

§ 18-3(b)(2). Visa Waiver Program.

§ 18-3(b)(2)(i). Countries Designated.

§ 18-3(b)(2)(ii). Individual Eligibility.

§ 18-3(b)(2)(iii). Procedures.

§ 18-3(b)(2)(iv). Medical Treatment Voluntary Departure.

§ 18-3(b)(3). Visa Waiver for Guam.

§ 18-3(b)(4). C-1 Transits and Transit Without Visa (TWOV).

§ 18-3(b)(5). Border-Crossing Cards for Canadians and Mexicans.

§ 18-3(b)(6). Other Visa Waivers.

§ 18-4. Students and SEVIS.

§ 18-4(a). Accompanying Aliens in Other Classifications.

§ 18-4(b). B-2 Students.

§ 18-4(c). Other Aliens.

§ 18-4(d). F-1 and M-1 Students.

§ 18-4(d)(1). School Accreditation.

§ 18-4(d)(2). School Issuance of Form I-20.

§ 18-4(d)(3). Visa Application and U.S. Entry from Abroad.

§ 18-4(d)(4). Changing to Student Status in the U.S.

§ 18-4(d)(5). Supporting Documentation.

§ 18-4(d)(5)(i). Nonimmigrant Intent.

§ 18-4(d)(5)(ii). Financial Support.

§ 18-4(d)(5)(iii). Reason for Entry in Non-student Status.

§ 18-4(d)(6). Duration, Maintenance, and Extension of Student Status.

§ 18-4(d)(7). Violation and Restoration of Status.

§ 18-4(d)(8). School Transfers.

§ 18-4(d)(9). Employment of Students.

§ 18-4(d)(9)(i). On-Campus Employment.

§ 18-4(d)(9)(ii). Severe Economic Hardship Employment.

§ 18-4(d)(9)(iii). Practical Training.

§ 18-4(d)(9)(iv). Internship with International Organization.

§ 18-4(d)(9)(v). Special Arrangements for Emergent Circumstances.

§ 18-4(d)(10). Temporary Absences from U.S.

§ 18-4(d)(11). Spouse and Children.

§ 18-4(d)(12). Limitations on Study at Publicly Funded Institutions.

§ 18-4(d)(13). Part-Time Commuter Study.

§ 18-4(e). J-1 Student Programs.

§ 18-4(e)(1). J Versus F Programs.

§ 18-4(e)(2). College and University Students.

§ 18-4(e)(3). Secondary School Students.

§ 18-5. Training and Exchange Visitor Classifications.

§ 18-5(a). Comparison of Classifications.

§ 18-5(b). J-1 Exchange Visitors.

§ 18-5(b)(1). Rules and Procedures for Sponsors.

§ 18-5(b)(1)(i). Citizenship Requirement for Private Sponsors.

§ 18-5(b)(1)(ii). General Eligibility.

§ 18-5(b)(1)(iii). Sponsors’ “Responsible Officers.”

§ 18-5(b)(1)(iv). Insurance for Participants.

§ 18-5(b)(1)(v). Contact with State Department (formerly USIA).

§ 18-5(b)(1)(vi). Sanctions.

§ 18-5(b)(2). Rules and Procedures for J-1 Exchange Visitors.

§ 18-5(b)(2)(i). Original Processing.

§ 18-5(b)(2)(ii). J Visa Application and Admission.

§ 18-5(b)(2)(iii). Change of Status to J.

§ 18-5(b)(2)(iv). Maintenance/Reinstatement of Status, and Transfer and Extension of Program and/or Status.

§ 18-5(b)(2)(v). Change of Program Category.

§ 18-5(b)(2)(vi). Readmission in J Status.

§ 18-5(b)(2)(vii). Termination of Participation.

§ 18-5(b)(2)(viii). Work Authorization of J-1/J-2 Aliens.

§ 18-5(b)(2)(ix). Two-Year Foreign Residency Requirement.

§ 18-5(b)(3). Category Eligibility and Procedures.

§ 18-5(b)(3)(i). Students, Teachers, Professors and Research Scholars, Short-Term Scholars, and Graduate Medical Trainees.

§ 18-5(b)(3)(ii). Trainees.

§ 18-5(b)(3)(iii). Specialists.

§ 18-5(b)(3)(iv). International Visitors.

§ 18-5(b)(3)(v). Government Visitors.

§ 18-5(b)(3)(vi). Camp Counselors.

§ 18-5(b)(3)(vii). Au Pairs.

§ 18-5(b)(3)(viii). Summer Student/Travel Work.

§ 18-5(c). Q “Cultural Visitors.”

§ 18-5(c)(1). Eligibility of Program and Alien.

§ 18-5(c)(2). Procedures.

§ 18-5(c)(3). Petition Package.

§ 18-5(d). H-3 Trainees.

§ 18-5(d)(1). Training Program Requirements.

§ 18-5(d)(2). Procedures.

§ 18-5(d)(3). Petition Package.

§ 18-5(d)(4). Special H-3 Programs.

§ 18-6. Permanent Residence Options for Visitors, Students, and Trainees.

Part V

OTHER AREAS OF REPRESENTATION CONCERNING FOREIGN NATIONALS

Chapter 19

EMPLOYMENT OF ALIENS


§ 19-2. Consequences of Unauthorized Employment.

§ 19-3. Immigration Reform and Control Act of 1986.

§ 19-4. Compliance with I-9 Procedures.

§ 19-4(a). Form I-9.

§ 19-4(b). INS Handbook.

§ 19-4(c). Workers for Whom an I-9 Must Be Completed.

§ 19-4(c)(1). Workers Exempt from I-9.

§ 19-4(c)(1)(i). Independent Contractors.

§ 19-4(c)(1)(ii). “Grandfathered” Employees and Breaks in Service.

§ 19-4(d). Electronic Verification and ICE “IMAGE”.

§ 19-4(e). When to Complete Form I-9 and Check Documents.

§ 19-4(f). Acceptability of Documents and Constructive Knowledge.

§ 19-4(g). Whether to Copy Documents Presented.

§ 19-4(h). Retention and Storage of I-9 Forms and Document Copies.

§ 19-4(i). Statute of Limitations and Successor Employers.

§ 19-4(j). Agricultural Employers, Recruiters, and Referrers.

§ 19-4(k). Anomalies.

§ 19-4(l). Penalties.

§ 19-4(m). Enforcement.

§ 19-5. Obtaining Employment Authorization for an Alien.

§ 19-5(a). Self-Authorizing Visa Classifications.

§ 19-5(a)(1). Classifications.

§ 19-5(a)(2). Documentation.

§ 19-5(a)(3). Extensions of Stay and Work Authorization.

§ 19-5(b). Unrestricted Authorization Incident to Status but Requiring Separate Documentation.

§ 19-5(b)(1). Employment Authorization Documents.

§ 19-5(b)(2). Types of Status and Corresponding Documents.

§ 19-5(b)(3). Permanent Residents.

§ 19-5(b)(4). Other Aliens Employment Authorized.

§ 19-5(b)(4)(i). Application for Employment Authorization Document.

§ 19-5(b)(4)(ii). Employment Authorization Pending Application.

§ 19-5(b)(4)(iii). Late Adjudications of EAD Applications.

§ 19-5(b)(4)(iv). Extension of Work Authorization.

§ 19-5(c). Aliens Requiring Separate Employment Authorization.

§ 19-5(c)(1). Application.

§ 19-5(c)(2). Categories.

§ 19-5(c)(2)(i). Readily Available Authorization.

§ 19-5(c)(2)(ii). Spouses and Children of Certain Aliens.

§ 19-5(c)(2)(iii). Certain Students.

§ 19-5(c)(2)(iv). Certain B-1 Aliens.

§ 19-5(c)(2)(v). Economic Necessity.

§ 19-5(c)(3). Termination of Work Authorization.

§ 19-6. Employment Discrimination Relating to Aliens.

§ 19-6(a). Race/National Origin.

§ 19-6(b). Citizenship Status.

§ 19-6(b)(1). Prohibited Employer Conduct.

§ 19-6(b)(2). Protected Individuals.

§ 19-6(b)(3). Standard of Proof.

§ 19-6(b)(4). Enforcement.

§ 19-6(b)(5). Remedies.

§ 19-7. Other Employment-Related Rights of Aliens

§ 19-7(a). Unemployment Compensation.

§ 19-7(b). Workers’ Compensation.

§ 19-7(c). At-Will Employment.

§ 19-7(d). Labor Law.

§ 19 7(e). Fair Labor Standards.

Part VI APPENDICES Appendix A USCIS FILING FEES § A. Form G-1055, Fee Schedule Appendix B-1 ABBREVIATIONS USED IN IMMIGRATION PRACTICE § B 1. Abbreviations Appendix B-2 INA/USC CONVERSION TABLE § B 2. INA/USC Conversion Table Note: The table lists parallel references from sections of the Immigration and Nationality Act to the United States Code. Table of Cases Table of Statutes Index

CD ROM Appendix C [The following is only a generalized listing of the offices for which a host of useful internet web site urls are provided, under these headings, in a document labeled “Appendix C” on the CD-ROM.] GOVERNMENT OFFICES, LAW & POLICY § C-1. Department of Homeland Security (DHS) § C-1(a). Customer Service § C-1(b). Ports of Entry § C-1(c). Service Centers § C-1(d). District & Sub Offices § C-1(e). Overseas Offices § C-1(f). Asylum Offices § C-1(g). Administrative Appeals Office (AAO) § C-1(h). Immigration Customs & Enforcement (ICE) § C-1(i). Customs & Border Protection (CBP) § C-1(j). District Counsel (Immigration Court Matters) § C-1(k). Border Patrol Offices § C-1(l). Detention Facilities § C-1(m). Application Support Centers § C-1(n). Legal Sources § C-1(o). Office of Citizenship § C-2. Department of State (DOS) § C-2(a). Consular Affairs § C-2(b). Passport Services § C-2(c). Revalidation Unit § C-2(d). Consulates § C-2(e). J-1 Program § C-2(f). J-1 Program Sponsors § C-2(g). J-1 Waivers § C-2(h). Visa Bulletin § C-2(i). Citizenship & Nationality § C-2(j). Legal Sources § C-3. Departments of Labor (DOL) – Federal and State § C-3(a). Permanent Labor Certification Form & Instructions (PERM) § C-3(b). State Workforce Agencies § C-3(c). Legal Sources § C-4. Department of Justice (DOJ) § C-4(a). Executive Office of Immigration Review/Board of Immigration Appeals (EOIR/BIA) § C-4(b). Office of Chief Administrative Hearing Officers (OCAHO) § C-4(c). Office of Special Counsel (OSC) § C-4(d). Bureau of Alcohol, Tobacco & Firearms (ATF) § C-4(e). Federal Bureau of Investigation

§ C-4(f). Bureau of Prisons § C-5. Other Agencies § C-5(a). Department of Commerce § C-5(b)(1). Bureau of Industry & Service (BIS) § C-5(b). Department of Health and Human Services (DHHS) § C-5(b)(1). Centers for Disease Control (CDC) § C-5(b)(2). DHHS issues for Immigrants § C-5(c). Social Security Administration (SSA) § C-5(d). Department of Treasury § C-5(d)(1). Internal Revenue Service (IRS) § C-5(d)(2). Office of Foreign Assets Control § C-5(e). Equal Employment Opportunity Commission(EEOC) § C-5(f). White House and Office of Management and Budget § C-5(g). Selective Service System (SSS) § C-5(h). U.S. Courts § C-5(i). U.S. Sentencing Commission § C-6. Consulates and Country-Specific Information Appendix D [The following is only a generalized listing of the departments forms for which a host of useful internet web site urls are provided, under these headings, and the forms for which line-by-line guidance for completion, are provided in documents labeled “Appendix D” on the CD-ROM.] FREQUENTLY USED GOVERNMENT FORMS AND SUGGESTIONS FOR COMPLETING THEM § D 1. Internet Locations (URLs) of Government Forms for Immigration § D-1(a). Department of Homeland Security (USCIS, ICE, CBP) Forms § D-1(b). State Department Forms § D-1(c). Department of Labor Employment Training Administration Forms § D-1(d). Department of Justice (Attorney General/EOIR/ATF) Forms § D-1(e). Social Security Administration Forms § D-1(f). Department of Treasury/IRS/OFAC Forms § D 2. Form G 28: Notice of Entry of Appearance as Attorney or Representative § D 3. Form I 129: Petition for a Nonimmigrant Worker § D 4. Form DS–156: Nonimmigrant Visa Application § D 5. Form I 539: Application to Extend/Change Nonimmigrant Status § D 6. Form I 130: Petition for Alien Relative § D 7. Form ETA 750: Application for Alien Employment Certification § D 8. Form I 140: Immigrant Petition for Alien Worker § D 9. Form DS-230 Part I: Application for Immigrant Visa and Alien Registration § D 10. Form DS-230 Part II: Application for Immigrant Visa and Alien Registration § D 11. Form I 134: Affidavit of Support § D 12. Form I 485: Application to Register Permanent Residence or Adjust Status § D 13. Form AR-11: Alien’s Change of Address § D 14. Form N 400: Application for Naturalization § D-15. Form ETA 9089: Application for Permanent Employment Certification Appendix E [The following is only a generalized listing of the topics for which a host of useful internet web

site urls are provided, under these headings, in a document labeled “Appendix E-1” on the CD-ROM. Appendices E-2 through E-19 appear on similarly labeled documents on the CD-ROM.] MISCELLANEOUS FORMS, CHECKLISTS, AND DOCUMENTS § E-1. Other Useful Internet Links § E-1(a). Treaty Databases § E-1(b). Asylum and Pro Bono Resources § E-1(c). Health Care Case Resources § E-1(d). General Federal Resources and Legislation § E-1(e). Immigration Policy § E-1(f). Associations § E-1(g). Free Information from Publishers § E-2. Form M 603: Color Photograph Specifications § E-3. State Department Photo Specifications (Nonimmigrant Visas) § E-4. I-94-Arrival/Departure Record—Instructions § E-5. Form I-94W-Nonimmigrant Visa Waiver Arrival or Departure Form § E-6. USCIS Service Center Filing Instructions § E-7. AAU Checklist for Professional Status § E-8. Service Providers for Immigration Practices § E-8(a). Credentials Evaluations § E-8(b). Immigration Bonds § E-8(c). Wage Analysts § E-8(d). Labor Certification Advertising Agencies § E-8(e). Translations § E-8(f). Forensic Psychology § E-8(g). Case/Forms Management § E-9. Employer’s Workplace Posting for Labor Condition Application in H 1B Case. § E-10. Employer’s “Actual Wage Statement” for LCA in H 1B Case § E-11. Sample Posting and Advertisement for Labor Certification § E-12. Comparison of Factor-Oriented Tests for Immigration Status § E-13. Visa Priority Dates for April 2008 § E-14. NVC Instructions for Immigration Visa Applicants § E-15. Employment Confirmation Letter § E-16. Bank Support Letter § E-17. Sample Caption in Removal Proceedings § E-18. State Department Charts Concerning Citizenship Through Birth Abroad § E-19. Naturalization Interview Document Checklist

Business Immigration Law: Strategies For Employing Foreign Nationals

Editors: Rodney A. Malpert and Amanda Petersen

Contributing authors: Roger Wolf, Tarik Sultan, Rebecca Whitehouse, George Lester, Kevin Fitzgerald, Charles Kuck, Rinku Ray, Robert O'Keefe,

Laura Lasdow-Dussourd, Richard Gump, Nancy Morowitz, Leslie Thiele, Ellen Yost, Vicki Martin, and Edward M. Griffith Jr.

Finally, employing foreign nationals has been demystified! Business Immigration Law: Strategies for Employing Foreign Nationals guides you step by step through this intricate legal maze. An impressive array of specialists provides helpful and pragmatic advice on the nonimmigrant work authorization, including: specialty occupations (H-1Bs); intra-company transfers from abroad (L-1); and treaty traders and investors (E-1 and E-2). Coverage includes: tax issues; discrimination law problems raised by screening foreign nationals during hiring; and how to avoid sanctions for I-9 violations. This book's appendices provide forms, guidelines, regulations and other helpful materials. EDITORS

Rodney A. Malpert is a partner at Fragomen, Del Rey, Bernsen & Loewy, LLP in Phoneix, AZ and for many years taught Immigration Law at Southern Methodist University Law School. Mr. Malpert has been on the Board of Directors of the American Council on International Personnel. He has also been an active lobbyist for business immigration reform and is frequently sought by media for commentary, being interviewed for television news and publications such as CNN Money Magazine, Business Week, ILW Immigration Daily, IT News, Computer World, Workforce Management, Information Week and various newspapers. Mr. Malpert is a frequent speaker at conferences throughout the world. He has also made presentations at a number of consulates on behalf of clients in China, Vietnam, and India. He is a 1986 graduate of Cornell University Law School and has an M.A. in Government from Cornell.

Amanda Petersen supervises all inbound and outbound immigration for Fermilab, a national science laboratory in Batavia, Illinois, managed by the Fermi Research Alliance for the Department of Energy's Office. She is a frequent writer and speaker on a variety of immigration topics, and is a member of the American Immigration Lawyers Association. She was born in Edinburgh, Scotland, and grew up in Edmonton, Alberta, Canada. She has a Bachelor of Arts degree from the University of Alberta, Canada and a Law Degree from the University of British Columbia, Canada. Previously, she was Counsel with the law firm of Mandel, Lipton & Stevenson Ltd. in Chicago.

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Table of Contents

CHAPTER 1 Basic Concepts § 1.01 Legislative Authority § 1.02 Agencies [1] Department of Homeland Security (DHS): USCIS, ICE, and CBP [2] Department of State (DOS) [3] Department of Labor (DOL) [4] Other Agencies § 1.03 Statutes, Regulations, and Other Guides § 1.04 Immigrant and Nonimmigrant Status [1] Essential Concepts [2] Extending, Changing, or Adjusting Status [3] Immigrants versus Nonimmigrants § 1.05 Nomenclature of Visa Categories Such as E, L, and H-1B § 1.06 Visa Waiver Permanent Program § 1.07 Obtaining Nonimmigrant Status [1] Petitioning the USCIS [2] Obtaining a Visa [3] Avoiding Problems upon Admission to the United States [4] Change of Status from Within the United States [5] Procedure for Filing a Nonimmigrant Petition § 1.08 Dependents of Nonimmigrants [1] Obtaining Nonimmigrant Visas [2] Obtaining Nonimmigrant Status [3] Employment [4] Education § 1.09 Maintenance and Limitations of Nonimmigrant Status § 1.10 Extension of Nonimmigrant Status [1] Contents, Structure, and Purpose of Extension Petitions [2] Filing Extension Petitions [3] Employment During Pendency of Extension Petitions [4] Denials § 1.11 Inadmissibility [1] Grounds [2] Determinations of Inadmissibility [3] Overcoming Inadmissibility to Obtain Entry CHAPTER 2 Recruiting Foreign Nationals § 2.01 The Need for a Strategy § 2.02 Potential Disadvantages of Recruiting [1] Delay in Obtaining Employment Authorization [2] Cost of Obtaining Employment Authorization [3] Limited Length of Employment Authorization [4] Subsequent Costs: Changes in Terms and Employment Termination § 2.03 Deemed Export Rule [1] Sources of Export Regulation [2] “Export” and “Deemed Export” Defined [3] Which Employees Are Subject to the “Deemed Export” Rule [4] Items and Activities Subject to Export Regulation [5] When a License Is Required for a Deemed Export [6] Screening for Export Control Issues in Recruitment and Hiring § 2.04 Discrimination Issues [1] Overview [2] Which Employers Are Subject to Antidiscrimination Laws [3] National Origin Discrimination [4] Citizenship Status Discrimination [5] Document Abuse

[6] Wage and Hour Laws/Workers' Compensation Benefits [7] The Retaliation Case [8] RICO § 2.05 Hiring Practices and Employment Policies [1] Interviewing Applicants [2] Limiting Visa Status Sponsorship [3] The Labor Certification Process: Who Is a “United States Worker”? [4] United States Citizens-Only: Hiring Policies [5] United States Citizens-Only: Policies Affecting Terms or Conditions of Employment [6] Treaty-Authorized Discrimination Against United States Citizens [7] Choosing Between Equally Qualified United States Citizens and Foreign Nationals [8] Choosing Between Undocumented Aliens/Nonimmigrants and Protected Individuals [9] Fluency in English and “English-Only” Policies [10] Job Assignments [11] Requiring a Social Security Number [12] National Security Clearance § 2.06 Enforcement [1] Agency Jurisdiction [2] Filing a Charge Under IRCA [3] Filing a Charge Under Title VII § 2.07 Recruiting Students [1] Student Visa Status and Employment [2] New Visa Status: Timing Considerations § 2.08 Employment Contracts [1] The Unintended Contract [2] Sponsorship and Fees Contracts CHAPTER 3 Short-Term Needs § 3.01 Introduction § 3.02 B-1 Visas [1] Overview of B-1 Status [2] Permissible Activities [3] Obtaining B-1 Status § 3.03 H-2B Status [1] The Temporary Need [2] H-2B Quota [3] How to Obtain H-2B Status § 3.04 H-3 Status [1] The Training Program [2] How to Obtain H-3 Status [3] Extension of H-3 Status; Changing to Another Status § 3.05 J-1 Exchange Visitor Status [1] Summary of Program Categories [2] Obtaining J Status [3] J-1 Status Entry [4] Reinstatement of J Status Holders [5] Obligation of Sponsor upon Completion of the J Program [6] Transfer of Sponsors [7] Employment of J Status Holders [8] Two-Year Return Residence Requirement [9] Sanctions for Regulatory Breaches [10] Termination of J Program Sponsorship § 3.06 O-1 Status for Extraordinary Foreign Nationals [1] Extraordinary Ability Defined [2] Extraordinary Foreign Nationals Must Enter the United States to Work in Their Fields [3] Peer Group Consultation [4] O-2 Status Holders Accompanying Foreign Nationals [5] How to Obtain O Status

CHAPTER 4 Specialty Occupation Professionals § 4.01 Introduction to H-1B Program § 4.02 General Requirements of Program [1] Status of Petitioner [2] Specialty Occupation Defined [3] Foreign Worker's Qualifications [4] Labor Condition Application as Prerequisite [5] Filing the H-1B Petition [6] Receipt of H-1B Status § 4.03 Establishment of the H-1B Category and the H-1B “Cap” [1] Statutory Provisions [2] Regulations [3] The H-1B “Cap” § 4.04 The Petitioner and Its Job Offer [1] The “United States Employer” [2] The Bona Fide Nonspeculative Job Offer § 4.05 Specialty Occupation Defined [1] The Legal Standard [2] Defining the Job [3] Straightforward Specialty Occupations: The “Easy” Cases [4] Establishing the “Specialty Occupation” in Complex Cases [5] Additional Criteria [6] Occupational Categories § 4.06 Beneficiary's Required Qualifications [1] The Legal Standard [2] United States or Foreign Baccalaureate Degree [3] Baccalaureate Degree Subject Matter [4] Education Plus Experience and Training [5] Licensure [6] Physicians [7] Certification for Foreign Health Care Workers § 4.07 The Labor Condition Application (LCA) [1] Background and Purpose [2] Payment of “Required Wage Rate”: LCA Attestation #1 [3] “No Adverse Effect on Working Conditions”: LCA Attestation #2 [4] “No Strike or Lockout”: LCA Attestation #3 [5] Notice to Employees of Filing: LCA Attestation #4 [6] “Non-Displacement” and Recruitment of U.S. Workers: LCA Attestations for “H-1B Dependent” and “Willful Violator” Employers [7] Completing the LCA [8] Filing the LCA [9] The Public Access File and Retention of Records [10] Payment of Required Wage and Prohibition on Nonproductive Status [11] When a New LCA Is Required for a Change in Location and “Short-Term” Placement [12] Enforcement and Penalties § 4.08 H-1B Petition Filing [1] The Petition [2] Preparing the Petition [3] Filing the Petition [4] Requests for Evidence [5] The Notice of Approval [6] The H-1B Visa Application and Entry into the United States [7] Beginning Work [8] Post-Approval Travel and Visa Processing [9] Denial and Revocation of a Petition [10] Special Procedures for Nationals of Chile, Singapore, and Australia § 4.09 Special Problems and Advanced Strategies [1] Transfer Between Multiple Work Locations [2] “Bench Time”

[3] “Recapturing” Time and Other Strategies to Extend the Six-Year Maximum [4] Lapse of Status [5] Anticipating the Annual H-1B Cap [6] Mergers, Acquisitions, Relocations, and Other Corporate Changes [7] Termination or Resignation of an H-1B Employee [8] Maintenance of Status and Portability CHAPTER 5 Intra-Company Transfers § 5.01 Overview of L Status [1] Generally [2] Establishing New United States Operations § 5.02 The Qualifying Organization [1] Overview [2] Elements of the Qualifying Organization § 5.03 The Employment [1] Employment in the United States [2] Employment Outside the United States § 5.04 How to Obtain L Status [1] Individual Petitions [2] Blanket Petitions [3] Maintenance of L Status § 5.05 Extensions of Individual L Petitions [1] Procedure [2] Evidence § 5.06 Extensions of Blanket L Petitions [1] Validity Periods [2] Status Holders' Stays in the United States § 5.07 Duration of L Status § 5.08 Notification of Material Changes [1] Corporate Reorganizations [2] Terms and Conditions of Employment [3] Transfers to Other Qualifying Organizations § 5.09 Spouses and Dependent Children § 5.10 Effect of Strikes or Lockouts on L Status CHAPTER 6 Investment and Trade: E Visas § 6.01 Overview [1] Requirements [2] Interaction between the Department of State and the U.S. Citizenship and Immigration Services [3] Duration: A Long-Term Visa Option § 6.02 The Treaty Requirement [1] Types of Qualifying Treaties [2] Treaty Limitations [3] Special NAFTA Requirements § 6.03 Nationality Requirements [1] General [2] Nationality of Individuals [3] Nationality of Business Organizations [4] Nationality Requirements for Employees of Treaty Aliens or Treaty Organizations § 6.04 Qualifying Functions [1] The Treaty Trader or Investor [2] Employees of the Treaty Alien or the Treaty Enterprise [3] Defining the Position: Employment Discrimination Rules Affecting E Enterprises § 6.05 Treaty Trader Issues [1] Overview [2] The Definition of “Trade” [3] The Requirement of “Substantial Trade” [4] The Requirement of Trade Primarily with the Treaty Country

§ 6.06 Treaty Investor Issues [1] Overview [2] The Definition of “Invested” or “Process of Investing” [3] Investment in a Bona Fide Enterprise [4] Investment of a “Substantial” Amount of Capital [5] Marginality [6] The Ability to Develop and Direct the Enterprise § 6.07 Employees of Treaty Traders and Investors [1] General [2] Work in a Corporate Group [3] Substantive Changes in Employment [4] Nonsubstantive Changes in Employment [5] Employment of E Treaty Dependents § 6.08 Procedures to Obtain E Status [1] Consular Processing versus the USCIS [2] Consular Processing Procedures [3] USCIS Processing Procedures § 6.09 Duration and Extension of E Status [1] Duration of E Visas [2] Duration of Authorized Stay [3] The Inadvertent Overstay [4] Renewal of E Visas Issued at a United States Consulate [5] Extension of Authorized Stay through the USCIS § 6.10 E Status versus Other Nonimmigrant Status [1] Advantages [2] Disadvantages § 6.11 Immigrant Visas for E Visa Holders CHAPTER 7 NAFTA § 7.01 Introduction § 7.02 Business Visitors (B-1) [1] Permissible Activities [2] Procedures § 7.03 Professionals (TN) [1] Comparisons to H-1B [2] Qualifying for TN Classification [3] Requirements for Citizens of Canada and Mexico [4] Special Provisions for Citizens of Canada [5] Special Provisions for Citizens of Mexico [6] Effect of Labor Disputes § 7.04 Traders and Investors (E) § 7.05 Intra-Company Transferees (L-1) § 7.06 The INSPASS and PORTPASS Programs [1] Pilot Automated Inspection System (INSPASS) [2] Port Passenger Accelerated Service System (PORTPASS) § 7.07 Temporary Entry: Other Provisions [1] Protecting Domestic Labor Forces [2] Temporary Entry Working Group [3] Spouses of Business Persons: Right to Work § 7.08 Canadian Border Admissions [1] Increased Border Enforcement [2] Summary Exclusion and Removal Proceedings [3] Unlawful Presence: Bars to Future Admissibility § 7.09 Expedited Removal Proceedings [1] Persons Subject to Expedited Removal [2] Procedures [3] Judicial Review [4] Consequences of Expedited Removal § 7.10 New Grounds for Inadmissibility

[1] Health Care Workers [2] F-1 Students Who Violate Status [3] Unlawful Presence [4] Aliens Engaged in Significant Trafficking in Persons [5] Aliens Engaged in Money Laundering § 7.11 Entry-Exit Controls and the Lookout § 7.12 Strategies for Easing Border Admissions [1] Know Your Client [2] Know the Intricacies of Immigration Requirements [3] Know the Free-Trade Officers [4] Know Your Plan of Action CHAPTER 8 Employer Sanctions § 8.01 History and Overview of Employer Sanctions [1] Introduction [2] Developments from 1986 to 1996 [3] The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [4] SEVIS [5] 2008 Presidential Order § 8.02 Definitions [1] Person or Other Entity [2] Hire [3] Employment [4] Employees Assigned to the Contract [5] Employer [6] Employment in the United States [7] Recruiters and Referrers for Fees [8] Federal Contractors § 8.03 The Prohibition against Knowing Employment of Unauthorized Aliens [1] Introduction [2] Unauthorized Alien [3] Actual and Constructive Knowledge [4] Social Security Numbers [5] The Defense of Good Faith Verification [6] Criminal Offenses § 8.04 I-9 Compliance [1] Who Completes I-9 Forms [2] Personnel Requiring Completion of I-9 Forms [3] Personnel Not Requiring Completion of I-9 Forms [4] Timing of Completion of the I-9 Form [5] Completing the I-9 Form [6] National Electronic Verification Programs [7] Employer Defenses [8] Records Retention [9] Document Fraud [10] Proposed Reforms [11] I-9 Compliance for Federal Contractors § 8.05 Document Abuse [1] Introduction [2] Avoiding Acceptance of Additional Documents Offered by Employees [3] Avoiding Unjustified Requests for More or Different Documents [4] The Requirement of Intentional Discrimination § 8.06 Penalties [1] Knowing Employment, or Contracting for Labor of, Unauthorized Aliens [2] I-9 Violations [3] Indemnity Bonds [4] Document Fraud [5] Document Abuse [6] National Verification Pilot Program [7] Preemption of Other Penalties

§ 8.07 Enforcement [1] I-9 and Knowing Employment Violations [2] Document Abuse Violations § 8.08 Issues Arising from Reorganizations [1] Introduction [2] I-9 Verification [3] Work Authorizations [4] Grandfathered Employees [5] Due Diligence CHAPTER 9 Tax Issues § 9.01 Taxation of United States Citizens [1] Overview [2] Living and Working Abroad [3] Expatriation § 9.02 Taxation of Foreign Nationals [1] In General [2] Other Taxes § 9.03 Determination of Resident Foreign National Status [1] In General [2] Tax Treaties § 9.04 Permanent Residence Test [1] In General [2] Revocation of Status [3] Abandonment of Status § 9.05 Substantial Presence Test [1] In General [2] Examples [3] Thirty-one Day Rule [4] Counting Days [5] “United States” Defined § 9.06 Exceptions to Substantial Presence Test [1] In General [2] Presence for Fewer Than 183 Days per Year [3] Foreign Government-Related Individuals [4] Teachers and Trainees (J and Q Status) [5] Students [6] Professional Athletes [7] Medical Condition of Foreign Nationals [8] Commuters from Canada and Mexico [9] Foreign Nationals in Transit [10] Foreign Vessel Crew Members § 9.07 Resident Foreign National Election § 9.08 Resident Foreign National Starting and Termination Dates [1] In General [2] Residency Starting Date [3] Residency Termination Date [4] No Lapse Rule § 9.09 Taxation of Nonresident Foreign Nationals [1] In General [2] Source of Income Rule § 9.10 Net Basis Taxation [1] In General [2] United States Trade or Business [3] Effectively Connected Income [4] Allowance of Deductions § 9.11 Investments in Real Property in the United States [1] In General [2] Tax on Disposition

[3] United States Real Property Interest [4] Withholding § 9.12 Gross Basis Taxation [1] Withholding Tax [2] Gains [3] Income from Real Property [4] Interest [5] Reduced Rates under a Treaty § 9.13 Income Tax Treaties [1] In General [2] Model Treaty Provisions § 9.14 Withholding from Compensation [1] In General [2] Wages: Form W-4 [3] Pensions [4] Independent Contractors § 9.15 Withholding from Other Income [1] In General [2] Partnership Income [3] Scholarships and Fellowships § 9.16 Withholding Exempted or Reduced by a Tax Treaty [1] In General [2] Employees [3] Independent Contractors [4] Students, Teachers, and Researchers § 9.17 Social Security and Federal Unemployment Taxes [1] In General [2] Application to Nonimmigrants [3] International Social Security Agreements [4] Underpayment and Overpayment of FICA and FUTA Taxes CHAPTER 10 The Interaction Between Immigrant and Nonimmigrant Statuses § 10.01 History of Immigrant Preference Categories § 10.02 Applying for Employment-Based Permanent Resident Status § 10.03 First Preference Category [1] Extraordinary Foreign Nationals [2] Outstanding Researchers and Professors [3] Multinational Managers or Executives § 10.04 Second Preference Category [1] Exceptional Ability [2] Schedule A Non-Labor Certification Occupations [3] Advanced-Degreed Professionals [4] National Interest Waivers § 10.05 Third Preference Category § 10.06 Labor Certification § 10.07 Immigrant Petition § 10.08 Adjustment of Status or Consular Processing of Immigrant Visas § 10.09 U.S. Business Structure Effect on Nonimmigrant and Immigrant Categories, Choices, and Interaction [1] Maximum Stay and EB-1 Petition Process [2] Consistency Between Filings APPENDICES Table of Abbreviations Index

Business Immigration Law: Forms and Filings Authors: Rodney A. Malpert and Amanda Petersen

Business Immigration Law: Forms and Filings is a comprehensive guide to help immigration practitioners determine the suitable nonimmigrant work visa category for each client. Examples and explanations are provided in an easy to understand language that describe both common and unusual situations, affecting student and business visitors, treaty traders and investors, NAFTA professionals, specialty occupation workers, and more. Discussion of every stage of the application process includes: obstacles and solutions to consider before filing; completed sample forms; support letters; supporting document checklists and filing instructions; guidance on applications for initial status, extension, amendment and change of status; needs of dependent family members; and detailed guidance on the new, stricter post-9/11 visa requirements. Together with its companion volume, Business Immigration Law: Strategies for Employing Foreign Nationals, Business Immigration Law: Forms and Filings discuss the laws and regulations involving each nonimmigrant work visa category. This book guides the reader - step by step - through the application process. Immigration practitioners, employers, and foreign nationals will find this an indispensable resource. AUTHORS

Rodney A. Malpert is a partner at Fragomen, Del Rey, Bernsen & Loewy, LLP in Phoneix, AZ and for many years taught Immigration Law at Southern Methodist University Law School. Mr. Malpert has been on the Board of Directors of the American Council on International Personnel. He has also been an active lobbyist for business immigration reform and is frequently sought by media for commentary, being interviewed for television news and publications such as CNN Money Magazine, Business Week, ILW Immigration Daily, IT News, Computer World, Workforce Management, Information Week and various newspapers. Mr. Malpert is a frequent speaker at conferences throughout the world. He has also made presentations at a number of consulates on behalf of clients in China, Vietnam, and India. He is a 1986 graduate of Cornell University Law School and has an M.A. in Government from Cornell.

Amanda Petersen supervises all inbound and outbound immigration for Fermilab, a national science laboratory in Batavia, Illinois, managed by the Fermi Research Alliance for the Department of Energy's Office. She is a frequent writer and speaker on a variety of immigration topics, and is a member of the American Immigration Lawyers Association. She was born in Edinburgh, Scotland, and grew up in Edmonton, Alberta, Canada. She has a Bachelor of Arts degree from the University of Alberta, Canada and a Law Degree from the University of British

Columbia, Canada. Previously, she was Counsel with the law firm of Mandel, Lipton & Stevenson Ltd. in Chicago.

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Table of Contents

CHAPTER 1 Administrative, Legislative, and Regulatory Structure §1.01 Overview of Administrative Structure [1] Department of Homeland Security (DHS) [2] Department of State (DOS) [3] Department of Labor (DOL) [4] Department of Health and Human Services (HHS) §1.02 Overview of Authorities [1] Immigration and Nationality Act (INA) [2] Code of Federal Regulations (C.F.R.) [3] Foreign Affairs Manual (FAM) [4] Adjudicator's Field Manual (AFM) [5] Administrative Guidance [6] Precedent Appeal Decisions [7] Other Resources CHAPTER 2 Strategies and Obstacles to Consider Before Filing §2.01 Creating an Immigration Strategy: Long-Term versus Short-Term Goals [1] Strategic Issues §2.02 Derivative Status [1] Eligibility for Derivative Status [2] Concerns of Dependent Family Members §2.03 Identifying Potential Obstacles [1] Inadmissibility and the Grounds of Inadmissibility [2] Security Considerations CHAPTER 3 Obtaining the Visa Status §3.01 Introduction §3.02 USCIS Filings [1] Lawful Presence Generally [2] When the Beneficiary Is Not Lawfully Present in the U.S. [3] When the Beneficiary Is Lawfully Present in the U.S. [4] Modifications to Lawful Beneficiary Status [5] Variations on the Theme: Complex Filing Situations [6] Naming Conventions §3.03 USCIS Processing of Nonimmigrant Filings [1] Technical Requirements (Service Center Preferences) [2] Filing the Petition or Application with the USCIS [3] Processing Times [4] Premium Processing [5] E-Filing [6] Responding to Requests for Evidence [7] Approvals [8] Denials [9] Appeals §3.04 Preparation of Non-Work-Authorizing Nonimmigrant Status Applications [1] Generally [2] Checklist for Applications [3] Components of Derivative Filings [4] Form I-539 Application to Extend/Change Nonimmigrant Status and Analysis [5] Support Letter [6] Checklist and Analysis of Necessary Support Documents §3.05 Completion of Non-Status-Specific Forms [1] Form G-28 Notice of Admission of Appearance as Attorney [2] Form I-907 Application for Premium Processing

[3] Form G-639 FOIA Requests [4] Form I-765 Application for Employment Authorization §3.06 Submission of Visa Applications to the Department of State [1] Generally [2] In-Person Visa Applications at U.S. Consulates and Border Posts [3] Nonimmigrant Visa Stamp Applications §3.07 Applications for Accelerated Inspection Services [1] Global Entry [2] SENTRI [3] NEXUS [4] OARS [5] FAST §3.08 Admission to the United States [1] Overview [2] Admission Documents [3] The Application for Admission [4] Security Considerations [5] Applying for a Social Security Account [6] Starting the Employment §3.09 Maintenance of Status §3.10 Departing the United States CHAPTER 4 Students and Business Visitors §4.01 Students [1] Overview [2] SEVIS [3] Employment Authorization [4] Changing to Nonimmigrant Work-Authorizing Statuses §4.02 Business Visitors [1] Overview [2] Free Trade Agreements [3] Remuneration [4] Eligibility for B-1 Status [5] Obtaining B-1 Status [6] Change of Status [7] Extension of Status CHAPTER 5 Specialty Occupation Workers §5.01 Overview of Specialty Occupation Workers [1] Temporary Workers [2] Duration of Stay [3] Long-Term and Short-Term Goals [4] Spouses and Dependent Family Members [5] Strikes or Lockouts §5.02 Minimum Requirements for the Specialty Occupation [1] The Nature of Specialty Occupations [2] The Minimum Education Requirement [3] The Foreign National Satisfies the Requirements for the Specialty Occupation §5.03 Labor Conditions: Wages and Benefits [1] Overview [2] The Required Wage [3] Payment of Wages [4] Deductions from Wages and/or Reimbursement of Expenses [5] Availability of Benefits §5.04 Additional Labor Conditions: Working Conditions, Strikes and Lockouts, Notice [1] Working Conditions [2] Strikes and Lockouts [3] Notice

§5.05 H-1B Dependent Employers and Willful Violators [1] The Employers [2] Additional Attestations for H-1B Dependent Employers and Willful Violators [3] Exempt Employees for Purposes of the Additional Labor Condition Attestations [4] Employers Receiving TARP and Related Funds §5.06 Evidencing Compliance with Labor Conditions [1] The File [2] Retention of the Files [3] Balancing LCA Obligations with Employees' Concerns [4] Specific Documentation [5] Enforcement of Labor Conditions [6] Filing the Labor Condition Application §5.07 The Employment [1] The Job Offer [2] Concurrent Employment [3] The Petitioner [4] Multiple Beneficiaries [5] Multiple Worksites §5.08 The Annual Quota [1] H-1B Quota [2] H-1B1 Quota [3] Graduates of U.S. Master's Programs [4] Foreign Nationals Who Are Exempt from the Quota [5] Discontinuance of Exempt Employment [6] Concurrent Employment [7] Strategy Considerations §5.09 Analysis of Sample Occupations [1] Fashion Models [2] Physicians [3] Nurses §5.10 Comparison of H-1B Status to Other Nonimmmigrant Statuses [1] H-1B Status versus H-1B1 Status [2] Specialty Occupations versus H-2B Status [3] Specialty Occupations versus E Status [4] Specialty Occupations versus L Status [5] Specialty Occupations versus O Status [6] H-1B Status versus TN Status §5.11 Procedure for Obtaining H-1B and E-3 Visas [1] Process [2] Filing Components for Consular H-1B1 or E-3 Visa Applications §5.12 Procedure for Obtaining the H-1B Classification [1] Process [2] Filing Components for the H-1B Petition [3] Filing Fees [4] Where to File [5] Limitations of Petition Approval §5.13 Qualifications Checklist for Specialty Occupations §5.14 Preparation of the H-1B Petition and Related Forms [1] Form I-129 Petition for Nonimmigrant Worker [2] H Supplement to Form I-129 [3] Form H-1B Data Collection and Filing Fee Exemption Supplement §5.15 Preparation of the Supporting Forms and Documents [1] ETA 9035/9035E Labor Condition Application [2] Support Letter §5.16 Termination of the Employment [1] “At-Will” Employment versus the Authorized Stay [2] Documentation [3] Effect on Status [4] Notice of Termination [5] Employee Options [6] Employer Obligations

[a] Notice to the USCIS [b] Return Transportation Costs [7] Cessation of Payment of the Required Wage [8] Penalties or Liquidated Damages for Early Termination [9] Eligibility for Unemployment Benefits [10] H-1B Dependency [11] Reductions in Force [12] Permanent Residence [13] Rehiring a Terminated H-1B Employee §5.17 Portability Petitions §5.18 Changes in the Employment [1] Overview [2] Organization-wide Changes [3] Filing Procedure for Amendment Petitions §5.19 Extension Petitions [1] Overview [2] Types of H-1B Extension Petitions [3] Filing Procedure for Extensions of Status §5.20 Change of Status Petitions [1] Generally [2] Beneficiary Must Be in Status at Time of Filing [3] Eligibility for the Requested H Classification [4] Petitioning to Change to H-1B or H-1B1 Status CHAPTER 6 L-1A / L-1B Multinational Transfers §6.01 Overview of L Status §6.02 Definitions and Analysis of Essential Terms [1] The Employer [2] Qualifying Organization [3] Qualifying Employment §6.03 Comparison of L Status to Other Common Nonimmigrant Statuses [1] L Status versus E Status [2] L Status versus H-1B Status [3] L Status versus O Status [4] L Status versus TN Status §6.04 Procedure for Obtaining L Status [1] Generally [2] USCIS Adjudication [3] Consular Adjudication [4] Spouses and Dependents §6.05 Preparation of Individual L Petition and Support Documents [1] Checklist for Individual L Filings [2] Components of Individual L Filings [3] Form I-129 Petition for Nonimmigrant Beneficiary and Analysis [4] L Supplement to Form I-129 and Analysis [5] Support Letter [6] Checklist and Analysis of Necessary Support Documents §6.06 New Office [1] Generally [2] Checklist for New Office Filings [3] Components of New Office Filings [4] Changes and/or Additions to Forms and Support Documents [5] Support Letter [6] Supporting Documentation [7] Extensions of L Status for Beneficiaries Employed by New Offices §6.07 Blanket L Program Petition [1] Generally [2] Initial Blanket L Program Petitions [3] Blanket L Status Applications by Beneficiaries [4] Extension of Blanket L Programs

[5] Amendment of Blanket L Programs [6] Extensions of L Status for Beneficiaries Who Entered the United States under Blanket L Programs §6.08 Free Trade Agreements [1] NAFTA [2] Free Trade Agreements with Chile and Singapore §6.09 Material Changes in L Status [1] Generally [2] Mergers, Acquisitions, and other Types of Reorganization [3] Changes to, or Cessation of, the U.S. Employer's Business in the United States [4] Changes to, or Cessation of, the Qualifying Business Activities Outside the United States [5] Changes to the Beneficiary's Employment §6.10 Amendment, Extension, and/or Recapture of Individual L Status [1] Overview of Amendment Petitions [2] Overview of Extension Petitions [3] Beneficiary Must Be in Status at Time of Filing [4] Checklist for Amendment, Extension, and/or Recapture Filings [5] Components of Amendment, Extension, and/or Recapture Filings [6] Filing for Amendment, Extension, and/or Recapture of L Status [7] Changes and/or Additions to Forms and Documents for Petitions of Amendment, Extension, and/or Recapture §6.11 Change of Status [1] Generally [2] Beneficiary Must Be in Status at Time of Filing [3] Eligibility for the Requested L Classification [4] Checklist for Change of Status Filings [5] Component of Elements for Change of Status Filings [6] Changes and/or Additions to Forms and Document for Change of Status Filings CHAPTER 7 E-1/E-2 Treaty Traders and Treaty Investors §7.01 Overview of E Status §7.02 Definitions and Analysis of Essential Terms §7.03 Visas, Admission, and Stay [1] Primary Applicants [2] Spouses and Dependent Children [3] Validity and Stay §7.04 Nationality [1] Individuals [2] Employment Situations §7.05 The United States Activities [1] Direct Trade or Investment Activities [2] Employment Activities §7.06 E-1 Treaty Trader [1] The Trade Involves Qualifying Items or Services [2] The Trade Exists [3] The Trade Is Primarily with the Treaty Country [4] The Trade Is Substantial §7.07 E-2 Treaty Investor [1] The Enterprise Is Bona Fide [2] The Investor Is the Source of the Funds [3] The Investment Must Be at Risk [4] The Investment Must Be Committed [5] The Investment Must Be Substantial [6] The Investor Will Direct or Develop the Enterprise §7.08 The Use of Treaty Investment Status for Consulting Businesses §7.09 Comparison of E-1 Status to Other Nonimmigrant Statuses [1] E Status versus H-1B Status [2] E Status versus L Status [3] E Status versus O Status

[4] E Status versus TN Status [5] E Status versus E-3 Status §7.10 Components, Checklist, and Filing Procedure [1] Components [2] Checklist §7.11 Completion of Forms and Support Documents [1] E-1 Treaty Trader (Filed with USCIS) [2] E-2 Treaty Investor Application (Filed with Consulate) [3] Checklist and Analysis of Necessary Support Documents §7.12 Extensions and/or Amendments [1] Overview [2] Procedure for Amending or Extending E Status §7.13 E Status under Free Trade Agreements CHAPTER 8 NAFTA TN Professionals §8.01 Overview of TN Status [1] Generally [2] Terminology [3] Spouses and Dependents [4] The Nature of the Employment [5] Authorized Stay [6] Strikes or Lockouts §8.02 Comparison of TN Status to Other Nonimmigrant Statuses [1] TN versus H-1B Status [2] TN versus L-1 Status [3] TN versus E Status [4] TN versus O Status §8.03 Procedure for Obtaining TN Status [1] Generally [2] Consular Adjudication of Mexican TN Visa Applications [3] Admission into the U.S. by Canadians and Mexicans in TN Status [4] Denials and Appeals §8.04 Obtaining Initial Grants of TN Status [1] Checklist [2] Components [3] Procedure §8.05 Preparing Forms DS-156 and DS-157 Nonimmigrant Visa Stamp Applications for Mexican TN Applicants [1] Preparation of Form DS-156 [2] Preparation of Form DS-157 §8.06 Completion of Support Documents [1] Support Letter from Employer and Analysis [2] Checklist and Analysis of Support Documents §8.07 Extending or Changing to TN Status [1] Generally [2] Overview of Extending or Changing to TN Status [3] Checklist for Extending or Changing to TN Status [4] Procedure for Extending or Changing to TN Status [5] Form I-129 Petition for Nonimmigrant Worker and Analysis [6] Completion of the Free Trade Supplement [7] Support Letter [8] Support Documents for Amending or Renewing TN Status §8.08 Amending TN Status CHAPTER 9 O-1 Foreign Nationals with Extraordinary Abilities §9.01 Overview [1] Generally [2] Spouses and Dependents

[3] Authorized Stay [4] Nature of Employment §9.02 Definitions and Analysis of Essential Terms [1] Alien [2] Arts [3] Beneficiary [4] Distinguished Reputation [5] Event [6] Extraordinary Ability [7] The Field [8] Peer Group [9] Petitioner §9.03 Evidencing Extraordinary Ability [1] Overview [2] “Extraordinary” in the Context of the Occupation [3] Sustained Records of Achievement [4] The Evidence §9.04 Comparison of O Status to Other Nonimmigrant Statuses [1] O Status versus H-1B Status [2] O Status versus L Status [3] O Status versus E Status [4] O Status versus TN Status [5] O Status versus P-1 Status §9.05 Procedure for Obtaining O Status [1] Filing the Petition [2] USCIS Adjudication [3] Consular Adjudication §9.06 Qualifications Checklist and Filing Components [1] Qualifications Checklist [2] Filing Components §9.07 Preparation of Forms and Support Documents [1] Form I-129 for Nonimmigrant Worker [2] O and P Classifications Supplement to Form I-129 [3] Support Letter [4] Peer Group Consultation [5] Checklist and Analysis of Supporting Documentation §9.08 Amendment and Extension Petitions [1] Extension Petitions [2] Amendment Petitions [3] Procedure for Amendment and Extension Petitions [4] Changes and/or Additions to Forms and Documents for Petitions of Amendment and Extension §9.09 Change of Status [1] Generally [2] Beneficiary Must Be in Status at Time of Filing [3] Components of Elements for Change of Status Filings [4] Changes and/or Additions to Forms and Documents for Change of Status Filings CHAPTER 10 Temporary Non-Agricultural Workers §10.01 Overview [1] Background [2] Duration of Stay [3] Long- and Short-Term Goals [4] Spouses and Dependent Family Members [5] Strikes or Lockouts [6] The Agencies That Process H-2B Visas §10.02 The Employment [1] Why Details Are Important [2] The Employer [3] The Job Offer [4] The Beneficiary(ies)

§10.03 Labor Certification [1] Labor Certification Defined [2] The State Workforce Agency: Recruitment [3] The National Processing Center §10.04 The Annual Quota [1] H-2B Quota [2] Returning Workers [3] Timing the Filings: Strategy Considerations §10.05 Comparison to Other Nonimmigrant Statuses [1] H-2B Status versus H-1B and H-1B1 Status [2] H-2B Status versus E Status [3] H-2B Status versus L Status [4] H-2B Status versus O Status [5] H-2B Status versus TN Status §10.06 Procedure for Obtaining the H-2B Classification [1] Qualifications Checklist [2] Overview of the Process [3] Labor Certification [4] USCIS Filing §10.07 Preparation of the H-2B Labor Certification [1] Form ETA 9142 Application for Temporary Employment Certification [2] Draft Advertisement [3] Support Letter [4] Supporting Documentation [5] Final Recruitment Report §10.08 Preparation of the H-2B Petition and Related Forms [1] Form I-129 Petition for Nonimmigrant Worker [2] Supplement A to the Form I-129 Petition [3] H Supplement to Form I-129 §10.09 Preparation of the Supporting Forms and Documents for the USCIS Filing [1] Support Letter [2] Petition Approval or Denial [3] Admission upon Approval [4] Visa Exit Program §10.10 Termination of the Employment [1] Documentation [2] Effect on H-2B Status [3] Reporting Requirement [4] Cessation of Payment of the Required Wage [5] Return Transportation §10.11 Changes in the Employment [1] Generally [2] Substitution of Beneficiaries §10.12 Extension Petitions [1] Overview [2] Beneficiary Works in the U.S. Fewer Than 183 Days per Year [3] Petitioning to Change to H-2B Status APPENDICES Glossary Index

The Whole ACT-INA 2009-2010 Edition Author: Pravinchandra J. Patel

The Whole Act INA contains all recently enacted statutory provisions; provisions amending sections of the INA are incorporated in the INA itself, with significant changes included in the Appendices. This updated Edition includes 435+ annotations and editorial notes, 744 footnotes, 50 appendices, a comprehensive topical index, an appendices index, and a U.S. Supreme Court decisions index.

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Pravinchandra J. Patel is a practicing immigration attorney in New York since 1979. He has a Master’s Degree in Law, awarded by the University of Texas Law School at Austin, in Austin, Texas, in May 1970. He is a member of the Bars of New York State, Federal District Courts of New York (Southern and Eastern Districts), and the United States Supreme Court. He is also a member of the American Immigration Lawyers Association. For over 22 years, he has been “of counsel” to an immigration law firm in Manhattan serving as an advisor on complex immigration cases. He is the founder of Pravinchandra J. Patel, P.C., a firm located in midtown Manhattan in New York City.

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BCIS Regulations with INDEX. 8 CFR Plus is an essential resource for immigration professionals. It contains (1) the complete set of USCIS regulations (8 CFR), (2) exhaustive Topical INDEX, and (3) expanded Table of Contents. AUTHOR

Pravinchandra J. Patel is a practicing immigration attorney in New York since 1979. He has a Master’s Degree in Law, awarded by the University of Texas Law School at Austin, in Austin, Texas, in May 1970. He is a member of the Bars of New York State, Federal District Courts of New York (Southern and Eastern Districts), and the United States Supreme Court. He is also a member of the American Immigration Lawyers Association. For the last more than 22 years, he is also “of counsel” to and a senior consulting attorney for an immigration law firm in Manhattan, New York, Besides advising and helping other legal staff (attorney, legal assistants and paralegal) in that law firm, he himself has handled hundreds of business-related immigrant and nonimmigrant visa cases, with a phenomenal success rate of 97%, including cases he successfully completed that were earlier declared untenable or not approvable by other leading immigration attorneys. He is the founder of Pravinchandra J. Patel, P.C., a firm located in midtown Manhattan in New York City.

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20/22/28 CFR Plus: This publication contains immigration related regulations of the Department of Labor (20 CFR), Department of State (22 CFR), Department of Justice (28 CFR) and the complete set of INS regulations (8 CFR), with an exhaustive topical INDEX.

AUTHOR

Pravinchandra J. Patel is a practicing immigration attorney in New York since 1979. He has a Master’s Degree in Law, awarded by the University of Texas Law School at Austin, in Austin, Texas, in May 1970. He is a member of the Bars of New York State, Federal District Courts of New York (Southern and Eastern Districts), and the United States Supreme Court. He is also a member of the American Immigration Lawyers Association. For the last more than 22 years, he is also “of counsel” to and a senior consulting attorney for an immigration law firm in Manhattan, New York, Besides advising and helping other legal staff (attorney, legal assistants and paralegal) in that law firm, he himself has handled hundreds of business-related immigrant and nonimmigrant visa cases, with a phenomenal success rate of 97%, including cases he successfully completed that were earlier declared untenable or not approvable by other leading immigration attorneys. He is the founder of Pravinchandra J. Patel, P.C., a firm located in midtown Manhattan in New York City.

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Patel's Citations 2009-2010 Edition Author: Pravinchandra J. Patel

This handy research tool can help you determine the current status of an administrative precedent under Immigration and Nationality laws.

Patel's Citations of Administrative Decisions under Immigration and Nationality Law: Let this research tool provide you instant access to the history and current status of I&N administrative precedents, as found or reported in administrative and judicial decisions, including Federal District Courts, Courts of Appeals and the Supreme Court.

AUTHOR

Pravinchandra J. Patel is a practicing immigration attorney in New York since 1979. He has a Master’s Degree in Law, awarded by the University of Texas Law School at Austin, in Austin, Texas, in May 1970. He is a member of the Bars of New York State, Federal District Courts of New York (Southern and Eastern Districts), and the United States Supreme Court. He is also a member of the American Immigration Lawyers Association. For over 22 years, he has been “of counsel” to an immigration law firm in Manhattan serving as an advisor on complex immigration cases. He is the founder of Pravinchandra J. Patel, P.C., a firm located in midtown Manhattan in New York City.

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