ILW.COM April 2009 Citations

by Karen Weinstock, Elizabeth Rompf Bruen, Edward Carroll, Suzanne Seltzer, Sherry Neal, Scott Bratton, and Rami Fakhoury

Editor's note: We share the citations from all April 2009 ILW.COM seminars.

Citations for ILW.COM's Seminar H-1B For Beginners

• INA 214(i)(1) contains the definition of specialty occupation.

• Payment of Wage Obligation

INA 212(n)(2)(C)(vii)(III)
• Bona Fide Termination

8 CFR §214.2(h)(11)
22 CFR § 655.731(c)(7)(jj)(2)

• 8 CFR Plus, 2009-2010 Edition by P. J. Patel
The complete set of BCIS regulations (8 CFR), with an exhaustive topical INDEX.
• 20/22/28 CFR Plus, 2009-2010 Edition by P. J. Patel
This publication contains immigration related regulations of the Department of Labor (20 CFR), Department of State (22 CFR), and Department of Justice (28 CFR) with an exhaustive topical INDEX.

AC21 Guidance, generally:

• On January 29, 2001, the Office of Field Operations issued a memorandum entitled Interim Guidance for Processing H-1B Applications for Admission as Affected by the American Competitiveness in the Twenty-First Century Act of 2002, Public Law 106-313.
• On June 19, 2001, the Office of Programs issued a follow-up memorandum entitled Initial Guidance for Processing H-1B Petitions as Affected by the American Competitiveness in the Twenty-First Century Act (Public Law 106-313) and Related Legislation (Public Law 106-311) and (Public Law 106- 396).
• On February 28, 2003, the Immigration Service Division issued a memorandum entitled Procedures for concurrently filed family-based or employment-based Form I-485 when the underlying visa petition is denied.
• On April 24, 2003, the Office of Operations issued a memorandum entitled Guidance for Processing H-1B Petitions as Affected by the Twenty-First Century Department of Justice Appropriations Authorization Act (Public Law 107-273).
• On August 4, 2003, the Office of Operations issued a memorandum entitled Continuing Validity of Form I-140 Petition in Accordance with Section 106(c) of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21).
• On September 23, 2005, the Office of Field Operations issued a memorandum entitled 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
• On May 30, 2008, the Office of Domestic Operations issued a memorandum entitled Supplemental Guidance Relating to Processing Forms I-140 Employment-Based Immigrant Petitions and I-129 H-1B Petitions, and Form I-485 Adjustment Applications Affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313), as amended, and the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), Title IV of Div. C. of Public Law 105-277.

Beyond the 6th year:

• On October 18, 2005, the Acting Deputy Director, designated a decision of the Administrative Appeals Office (AAO) in Matter of Al Wazzan (January 12, 2005) as a USCIS Adopted Decision.
• On December 27, 20051, the Office of Field Operations issued a memorandum entitled Interim guidance for processing I-140 employment-based immigrant petitions and I-485 and H-1B petitions affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313).

Questions:

1. H status holder with valid H visa (while in the US, the individual has maintained his/her H status), has no Advance Parole, traveled abroad and prior to returning to US discovered I-485 is approved, any regulation/USCIS memo stating how the individual can be readmitted back to US as not to jeopardize his/her permanent resident status and naturalization in the future. H-1B/H-4 or L-1/L-2 status holder is exempt from using AP for US admission.
2. H status holder with valid H visa (while in the US, the individual has maintained his/her H status), has no Advance Parole, traveled abroad and readmitted on H status. Upon returning to US, the individual discovers that his/her I-485 is approved and the card is waiting at home. Is there any regulation/USCIS memo stating whether the individual needs to do anything as not to jeopardize his/her permanent resident status and naturalization in the future. H-1B/H-4 or L-1/L-2 status holder is exempt from using AP for US admission.
3. H status holder has valid Advance Parole to cover period of travel abroad, traveled abroad and prior to returning to US discovered I-485 is approved. Will use AP for US admission. Is there any procedure the individual needs to follow at US port of entry so as not to jeopardize his/her permanent resident status and naturalization in the future.
4. H status holder has valid Advance Parole to cover period of travel abroad, traveled abroad and is admitted as a parolee. Upon returning to US, the individual discovers that his/her I-485 is approved and the card is waiting at home, any regulation/USCIS memo stating whether the individual needs to do anything as not to jeopardize his/her permanent resident status and naturalization in the future.
5. Upon discovering I-485 is approved while not in US, some one mails the individual his/her Permanent Residence Card and the individual then use it to enter the US as a permanent resident. The individual is admitted as a permanent resident. Is there any regulation/USCIS memo prohibiting this and will this jeopardize his/her permanent resident status and naturalization in the future.

• 1 and 2: Look at 8 CFR § 245.2 (a) (4) (ii) (C) and May 25, 2000 Michael Cronin/ Thomas Cook memo
• 3 and 4: There is a procedure at the port of entry to be admitted as a permanent resident even when AOS is approved while the person is abroad - by informing to CBP and entering with a parole/visa/another document and I-485 approval notice or receipt (they can check the system that it has been approved). If the person did not enter best thing is to depart and reenter as a permanent resident or go to deferred inspections.
• 5: When a person is admitted as LPR there is no issue.

• Re: Standards for specialty occupation position 214.2(h)(4)(iii)(A).

Citations for ILW.COM's Seminar Removal For Experts

• Matter of Cristoval Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008).
• Memorandum of Law of Amici Curiae In re: Cristoval Silva-Trevino In Removal Proceedings.
• Disorderly Conduct Statutes
• AILA Letter to Attorney General Holder Re: Matter of Silva-Trevino, 24 I & N Dec. 687 (A.G. 2008).
• Manoj Nijhawan v. Attorney General Of The United States (No. 06-3948).

Citations for ILW.COM's Seminar Investor Options For Beginners

• Matter of X, SRC 98 101 50785 (AAO August 9,2006)
• Matter of Aphrodite Investments, Ltd.17 I+N, 530 (1980)

Citations for ILW.COM's Seminar PERM For Experts

• Matter of 5th Avenue Landscaping, Inc., 2008-PER-00027
• Matter of Syncsort Inc., 2007-PER-00067
• Alpine Store Inc., 2007-PER-40

• Matter of Shah, 17 I. & N. Dec. 244 (R.C. 1977)
• 8 CFR Section 204.5(k)
• Educational Alchemy and the Irrelevance of Matter of Shah: The Foreign Equivalence of a Three-Year Foreign Bachelor's Degree Despite the 1997 UNESCO Convention on the Recognition of Qualifications Concerning Higher Education in the European Region, 13 Bender's Immigr. Bull. 1153 (Oct. 15, 2008)

Citations for ILW.COM's Seminar Options For Health Care Professionals

Please see U.S. Government Manual, 2006-2007 Edition

• Vintage vs. Meissner (INS) 201 F. 2d. 384(Jan 17, 2000).
• Demographic Data, please see here.

Three organizations have been approved to certify health professionals, not just CGFNS but also FCCPT and NBCOT. All three organizations are accountable to the Department of Homeland Security as detailed in section 343. There are criteria for approval of the organizations, a requirement for an annual report and also site visits. The organizations must apply for approval every 5 years. NCLEX is now given internationally that nurses do not need the CGFNS qualifying exam. Although the NCLEX is given in 11 sites internationally, it is the state board of nursing in the state of intended practice which determines if the nurse must have a certification program certificate from CGFNS. There are approximately 25 states which require the CP before they are eligible for an ATT. Other states may require the Credentials Evaluation Service Report as a pre requisite to licensure.

Citations for ILW.COM's Seminar Health Care Visas For Beginners

QUESTIONS

1. What do you suggest as an acceptable evidence to show the "nature of the position is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a Bachelor's degree or higher (or its equivalent)?
2. Should I get an expert opinion from a RN/Professor? Who else can you suggest can provide this opinion? Of course, this is only an alternative to the guideline for the employers to meet the "Specialty Occupation" requirement. Do I even need to provide this?

ANSWERS

1. If the position requires a Bachelor's degree and if the nurse has the degree and the specialization to fill the position then she may qualify. The USCIS will request proof that the position requires a BSN degree and that all other nurses in that section have the BSN. They may require proof as far back as 5 years to prove that the requirement was not just recently put in place to accomodate the nurse. USCIS may ask proof of what the job requirements were for the past 5 years and if each nurse had those requirements. If you can prove this up front, it would be better than waiting for an RFE.
2. Yes, get as much proof/expert opinions from Nursing Professors, top hospital administrators, etc. You must really supplement as much as possible the requirement of the degree and the specialization training/experience.

Citations for ILW.COM's Seminar Removal For Beginners

• Please see Immigration Court Practice Manual.

Citations:

INA 101(a)(43)
INA 101(a)(48)
INA 237(a)(2)(A)(iii)
INA 238

Lopez v. Gonzales, 126 S.Ct. 2557 (2006)
Matter of Aruna, 24 I&N Dec. 452 (BIA 2008)
Matter of Carachuri-Rosendo, 24 I&N Dec. 382 (BIA 2007)
Matter of Babaiskov, 24 I&N Dec. 306 (BIA 2007)
Nijhawan v. Mukasey, 523 F.3d 387 (3d Cir. 2008), cert. granted, 129 S. Ct. 988 (Jan. 16, 2009) (No. 08-495)

Matter of Beltran, 20 I&N Dec. 521 (BIA 1992)
Zouilla-Vidal, 24 I&N Dec. 268 (BIA 2009)
Matter of Paulus 11 I&N Dec. 274
Guntik v. Gonzales, 469 F.3d 683 (7th Cir.)
Matter of K-, 7 I&N Dec. 594 (1957)
Matter of St. John, 21 I&N Dec. 593 (BIA 1996)
Matter of Perez-Contreras, 20 I&N Dec. 615 (BIA 1992)
Matter of Teixeira, 21 I&N Dec. 316 (BIA 1996)
Matter of Madrigal, 21 I&N Dec. 323 (BIA 1996)
Matter of Martinez-Zapata, 24 I&N Dec. 424 (BIA 2007)
Matter of Sanudo, 23 I&N Dec. 968 (BIA 2006)
Fernandez-Ruiz, 466 F.3d 1121 (9th Cir.)

Citations:

INA 212(c)
INA 212(h)
INA 212(i)
INA 237(a)(1)(H)
INA 240A(b)
INA 240A(a)
INA 240A(b)(2)

Matter of Recinas, 23 I&N Dec. 467 (BIA 2002)- cancellation
Matter of Monreal, 23 I&N Dec. 56 (BIA 2001)- cancellation
Matter of Andazola, 23 I&N Dec. 319 (BIA 2002) - cancellation
Matter of Marin, 16 I&N Dec. 581 (BIA 1978) – cancellation/212(c)
Matter of C-V-T-, 22 I&N Dec. 7 (BIA 1998)- cancellation/212(c)
Matter of Campos-Torres, 22 I&N Dec,. 1289 (BIA 2000) – stop-time cancellation
Matter of Abosi, 24 I&N Dec. 204 (BIA 2007) – 212(h)
Please see David Isaacson's article re: Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008)- 212(h) published in ILW.COM on September 30, 2008.,

NACARA 8 CFR 1240.60-70

VOLUNTARY DEPARTURE

Two types of VD

1. Prior to Completion of the hearing [INA 240B(a)]
2. At the conclusion of the hearing [INA 240B(b)]

Voluntary Departure is discretionary – IJ has broader discretion on Prior to completion VD versus at completion MATTER OF ARGULLES 22 I&N DEC. 811

Factors that IJ will consider:

1. criminal history
2. length of residence
3. ties to US
4. family members
5. humanitarian factors

See MATTER OF OCAMPO 22 I&N DEC 1301
Prior grants of VD: May still be eligible for VD if prior grant of VD was under former INA 244(e)

NEW VOLUNTARY DEPARTURE REGULATION

See 73 Fed. Reg. 76,927.

Please see Voluntary Departure Advisals.

TPS

IJ may review TPS application de novo: 24 I&N Dec. 100 (BIA 2007) Interim Decision #3554 - In re William Osmin BARRIENTOS, Respondent
Please see http://www.usdoj.gov/eoir/vll/intdec/vol24/3554.pdf

TPS granted by Immigration Judge: Tpsijgrant.vsc@dhs.gov

Please note that the email address provided above is solely for re-registration applicants who were granted TPS by an Immigration Judge or the BIA to notify USCIS of their grant of TPS. It is not for individual case status inquiries. Applicants seeking information about the status of their individual cases can check Case Status Online available at the USCIS Web site, or applicants may call the USCIS National Customer Service Center at 1-800-375-5283 (TTY 1-800-767-1833).

Citations for ILW.COM's Seminar Consular Processing For Beginners

• Outline: Fundamentals of Consular Processing.

Please see: National Security and Records Verification Directorate Fraud Detection and National Security Division

Citation 1
Memorandum of Donald Neufeld re: Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 2129a)(9)(C)(i)(I) of the Act.

Citation 2
Guidance on Processing Visa Applicants with Drunk Driving Hits

1. Summary: This cable clarifies how consular officers should handle cases where an applicants' criminal record shows an arrest or conviction for drunk driving or other alcohol related offence. End summary.
2. Posts generally become aware of drunk driving arrests and convictions after receiving the results of fingerprints taken when an applicant has a CLASS hit. While a drunk driving conviction is not a statutory visa ineligibility, a conviction may indicate that further investigation is needed to determine whether the applicant may in fact be ineligible under Section 212(a)(1)(A)(iii). This applies to applicants who have a physical or mental disorder and demonstrate behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others.
3. In the case of IV applicants, consular officers must refer the applicant back to the panel physician for additional evaluation. Physicians are evaluating for the presence of a mental disorder previously unnoticed before the physician became aware of the alcohol-related arrest. NIV applicants that have hits with evidence of an alcohol-related arrest or conviction must be referred to panel physicians for evaluation. This must be done even if the panel physician is physically located in another city.
4. After consulting with the Center for Disease Control and Prevention, we have determined that consular officers must refer applicants to panel physicians in two circumstances: (1) an applicant has a single drunk driving arrest or conviction within the last three calendar years or two or more drunk driving arrests or (2) convictions in any time period. Consular officers must also refer applicants to panel physicians if there is any other evidence to suggest an alcohol problem. Consular officers must adhere strictly to these guidelines in determining when a panel physician referral is appropriate.
5. For a finding of eligibility under Section 212(a)(1)(A)(iii), there must be two criteria established by the panel physician: (1) diagnosis of mental disorder (alcohol abuse) and (2) current harmful behavior associated with the mental disorder or a history of harmful behavior associated with the mental disorder that is judged likely to recur in the future. Consular officers should be aware that neither alcohol abuse or (DWI) drunk driving are sufficient grounds for an ineligibility finding under Section 212(a)(1)(A)(iii), a panel physician evaluation is required.
6. Section 9 FAM 40.11 N8.3 will be updated as follows:

Citation 3
legalnet@state.gov
for FMJ 202 663 1225 Public Inquiries or
fmjvisas@state.gov

Canada Appointments:
www.nvars.com
or
900 443 3131

Mexico Appointments
www.usvis-mexico.com
or
900 476 1212

DS 160 website
https://ceac.state.gov/genniv/

About The Author

Karen Weinstock, et al. are the speakers for H-1B For Beginners. To purchase an audio CD of all 3 sessions, see here.

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