UTC LE T H E U N I V E R S I T Y O F T E X A S S C H O O L O F L AW

32nd Annual

Conference on Immigration
and Nationality Law
Earn up to 17.50 Hours of Credit Including 2.00 Hours of Ethics Credit
Specialization Credit Expected for Immigration and Nationality Law

October 22*, 23-24, 2008

Marriott Plaza
S a n A n t o n i o , Te x a s

*Special Wednesday Evening Sessions—Fundamentals of Immigration Law

Included with Registration

W W W. U T C L E . O R G • 5 1 2 - 4 7 5 - 6 7 0 0
 2008 CONFERENCE ON IMMIGRATION AND NATIONALITY LAW

OCTOBER 22, 23-24, 2008

MARRIOTT PLAZA SAN ANTONIO, TEXAS

Introduction to United States Immigration Law ...............................................................TAB 1

Fundamentals of Family-Based Immigration ...................................................................TAB 2

Fundamentals of Business-Based Immigration ................................................................TAB 3

Naturalization and Citizenship Issues ...............................................................................TAB 4

Grounds of Removal .........................................................................................................TAB 5

Strategic Planning for Family Cases .................................................................................TAB 6

Immigration Rights ...........................................................................................................TAB 7

A Primer on Foreign Adoption .........................................................................................TAB 8

Practice Issues and Immigration Options for Vulnerable Populations .............................TAB 9

Primer: Getting a Green Card .........................................................................................TAB 10

Removal Proceedings: The New Practice Rules .............................................................TAB 11

Immigration to Criminal Law .........................................................................................TAB 12

Of Counsel—Breakfast with the Experts........................................................................TAB 13

Working with Non-Immigrant Visas ..............................................................................TAB 14

Strategic Planning Using Immigrant Visas .....................................................................TAB 15

A Primer on PERM .........................................................................................................TAB 16

Law Office Management for Immigration Practitioners ................................................TAB 17

Worksite Enforcement ....................................................................................................TAB 18

Snatching Victory from the Jaws of Defeat ....................................................................TAB 19

Asylum ............................................................................................................................TAB 20

Using the Internet to Stay Current with Immigration Laws, Procedures,

and Agency Interpretations .................................................................................TAB 21

Top 10 Immigration Updates to Help Guide Your Practice ...........................................TAB 22

© Copyright, The University of Texas School of Law
Continuing Legal Education
 TAB 01
Introduction to United States Immigration Law
INTRODUCTION TO UNITED STATES
IMMIGRATION LAW

PAUL PARSONS P.C.

Attorney at Law
704 Rio Grande
Austin, Texas 78701

(512) 477-7888
(512) 479-6903 fax

parsons@immigrate-usa.com
http://www.immigrate-usa.com

Immigration and Nationality Law

University of Texas School of Law
October 22-24, 2008
Marriott Plaza
San Antonio, Texas
 TABLE OF CONTENTS

I. INTRODUCTION................................................................................................................................................... 1

II. IMMIGRANT STATUS: EMPLOYMENT-BASED ............................................................................................. 1

A. First Preference................................................................................................................................................ 1
1. Extraordinary Ability ............................................................................................................................... 1
2. Outstanding Professors or Researchers ................................................................................................... 2
3. Multinational Executives and Managers ................................................................................................. 2
B. Second Preference ........................................................................................................................................... 2
1. Advanced Degree .................................................................................................................................... 2
2. Exceptional Ability .................................................................................................................................. 2
C. Third Preference .............................................................................................................................................. 3
D. Fourth Preference ............................................................................................................................................ 3
E. Fifth Preference ............................................................................................................................................... 3

III. LABOR CERTIFICATION .................................................................................................................................... 3

IV. NONIMMIGRANT STATUS................................................................................................................................. 4

A. F-1 Student ...................................................................................................................................................... 5
B. J-1 Exchange Visitor ....................................................................................................................................... 5
C. B-1 Business Visitor ........................................................................................................................................ 5
D. Visa Waiver Program ...................................................................................................................................... 5
E. TN Status ......................................................................................................................................................... 5
F. H-1B Specialty Worker ................................................................................................................................... 5
G. L-1 Intracompany Transferee .......................................................................................................................... 6
H. O-1 Extraordinary Ability ............................................................................................................................... 6
I. E-2 Treaty Investor & E-1 Treaty Trader ........................................................................................................ 7
J. Other Types of Employment Based Nonimmigrant Visas .............................................................................. 7

V. DEVELOPMENTS AFFECTING EMPLOYMENT BASED CASES .................................................................. 7

A. Department of Homeland Security .................................................................................................................. 7
B. Special Registration ......................................................................................................................................... 7
C. Employment Authorization for Dependent Spouses ....................................................................................... 7
D. Premium Processing ........................................................................................................................................ 7
E. Extensions of Nonimmigrant Status ................................................................................................................ 8
F. Monitoring of International Students .............................................................................................................. 8
G. Protecting Immigration Benefits for Children ................................................................................................. 8
H. Address Change Notification Requirements ................................................................................................... 8
I. Additional Security Clearances ....................................................................................................................... 8
J. Employer or Job Changes While Immigration Applications Pending............................................................. 8

VI. FAMILY BASED IMMIGRANT STATUS ........................................................................................................... 8

A. First Preference................................................................................................................................................ 9
B. Second Preference ........................................................................................................................................... 9
C. Third Preference .............................................................................................................................................. 9
D. Fourth Preference ............................................................................................................................................ 9

VII. CONCLUSION ....................................................................................................................................................... 9

INTRODUCTION TO UNITED such a relative, he/she might qualify under one of the
employment-based categories. Currently the
STATES IMMIGRATION LAW Immigration & Nationality Act sets an annual limit of
226,000 immigrant “preference” numbers for
family-based categories, and 143,949 immigrant
I. INTRODUCTION “preference” numbers for employment-based
The threat of terrorism triggered Congressional categories. The per-country limit for preference
and administrative actions that have dramatically immigrants is now 25,896.
changed United States immigration laws. The most
significant change arose from the Homeland Security Employment-Based Categories
Act of 2002 that transferred immigration enforcement
and adjudication services functions from the now 1st Preference: Extraordinary Ability
defunct Immigration & Naturalization Service into the Outstanding Professors &
Department of Homeland Security. Security and Researchers
enforcement concerns have taken priority over timely Managers & Executives
adjudications of applications for immigration status
submitted by employers for foreign national
employees as well as by U.S. citizens for their 2nd Preference: Advanced Degree Professionals
relatives. Exceptional Ability
Immigration laws are constantly changing. This
is a heavily regulated field with laws intended both to 3rd Preference: Professionals (Bachelors degree)
protect the United States workforce and to unify Skilled Workers (two years
families. Congress must juggle competing interests in training)
determining immigration policy: employers want to be Other Workers (unskilled)
able to hire skilled foreign labor, while labor unions
and professional societies want to improve wages and 4th Preference: Special Immigrants (religious
working conditions for employees; immigrant families workers)
want to bring their relatives to the U.S., while the
quota system lags ever farther behind; a global 5th Preference: Immigrant Investors
economy demands decreasing barriers, while an influx
of unlawful immigration and the threat of terrorism A. First Preference
results in tightening controls. The First Preference is for "priority workers" and
The U.S. Citizenship & Immigration Services includes individuals of extraordinary ability,
(CIS) concentrates on the intent of the individual: Is outstanding professors or researchers, and certain
he/she an intending immigrant or nonimmigrant? The executives and managers of multinational
wrong answer might result in a return trip to the home corporations. Because Congress regards them as
country. Nonimmigrant status is temporary: one may priority workers, they are exempt from Department of
only remain in the U.S. for a limited period of time. Labor requirements for labor certification.
Immigrant status, commonly called "green card"
status, signifies that a person has been granted 1. Extraordinary ability
permanent resident status and may reside in the U.S. The first subgroup of the priority worker
indefinitely. category is reserved for applicants with extraordinary
These government websites provide useful ability in the sciences, arts, education, business, or
information about immigration laws: athletics. The CIS considers "extraordinary ability" to
be a level of expertise indicating that the individual is
www.uscis.gov (U.S. Citizenship & Immigration one of a few who have risen to the top of his/her field.
Services) The petitioner must demonstrate extraordinary ability
www.dol.gov (U.S. Department of Labor) through extensive documentation showing sustained
www.travel.state.gov (U.S. Department of State) national or international acclaim, and that the foreign
www.twc.tx.us (Texas Workforce Commission) national’s achievements have been recognized by
others in the field of expertise. The regulations
II. IMMIGRANT STATUS: provide a list of criteria for guidance, which are
EMPLOYMENT-BASED summarized below:
Generally either a close family relative or an
employer must sponsor someone for immigration. The  Major prizes or awards.
first method relies on a close tie to a U.S. citizen or  Memberships in organizations that require
permanent resident. If a foreign national does not have outstanding achievement.
1
  Cites to or articles about the individual’s
work.
 Participation as a judge of the work of others.
 Evidence of original scientific, scholastic,
artistic, athletic or business-related
contributions.
 Authorship of scholarly articles.
 Artistic exhibitions or showcases.
 Performance in a leading or cultural role for
organizations that have a distinguished
reputation.
 High salary in relation to others in the field.
 Commercial success in the performing arts.
 Other comparable evidence.
2. Outstanding Professors or Researchers
The second subgroup of the priority worker
category is reserved for certain professors or
researchers who are internationally recognized as
being outstanding in specific academic areas. The
applicant must have at least three years teaching or
research experience. Under certain conditions the CIS
will count teaching or research experience gained
while working toward an advanced degree. The
individual must either be (a) in a tenure-track position
teaching or conducting research at a university, or (b)
in a research position with a private employer who
employs at least three full-time researchers and who
has achieved documented accomplishments in the
academic field.
As with extraordinary ability, the petitioner must
demonstrate outstanding ability through extensive
documentation showing international recognition in
the field. The regulations provide a list of criteria for
guidance, which are similar to extraordinary ability:
 Major prizes or awards.
 Membership in organizations that require
outstanding achievement.
 Cites to or articles about the individual’s
work.
 Participation as a judge of the work of others.
 Evidence of original scientific research.
 Authorship of scholarly articles or books
3. Multinational Executives and Managers
The third subcategory of priority workers is
reserved for certain executives and managers of
multinational companies. To be eligible the manager
or executive must have been employed at least one of
the three preceding years by the overseas parent,
subsidiary, affiliate, or branch of the U.S. employer.
They must have filled a position in a managerial or
executive capacity for at least one year, and be
coming to the U.S. to fill a position in a similar
capacity.
2
The petitioner must document that the proper
relationship exists between the two entities. In some
cases a joint-venture may be acceptable to the CIS. In
situations where there is less than 50% ownership,
there might be equal control and veto power. The
CIS definition of "managerial capacity" includes both
managers of an organization and managers of a
function; however, first line supervisors are not
considered managers unless the employees they
supervise are also professionals.
B. Second Preference
The Second Preference category includes
members of the professions holding advanced degrees,
and those who have exceptional ability in the sciences,
arts or business. The CIS regulations define a
profession as an occupation that requires at least a
Bachelor’s degree to enter into the field. An employee
seeking to enter in this category must obtain a labor
certification from the Department of Labor unless the
CIS determines that a waiver of the labor certification
requirement would be in the "national interest." A
labor certification certifies that the employment of the
foreign worker in a particular position will not
adversely affect the U.S. labor market.
1. Advanced Degree
This subcategory requires the professional to
have at least a Master’s degree or equivalent. An
advanced degree means any degree higher than a
Baccalaureate degree. The CIS will also consider an
applicant who has a Baccalaureate degree plus five
years of progressive experience in the profession to be
equivalent to a Master’s degree. Note that to require
five years of experience in a job offer for purposes of
labor certification may conflict with minimum job
standards set by the Department of Labor. For this
reason it may not always be possible to include an
individual’s full experience to meet the advanced
degree category.
2. Exceptional Ability
This subcategory is reserved for those who have
"exceptional ability" in the sciences, arts or business,
and who will substantially benefit prospectively the
national economy, cultural or educational interests, or
welfare of the United States. The CIS is looking for a
level of expertise significantly above that ordinarily
encountered in the field. It is lower than the
"extraordinary ability" standard, and has different
guidelines:
 Degree relating to area of exceptional ability.
 Ten years of experience.
 Professional license.
 High salary in relation to others in the field.
 Membership in professional associations.
  Recognition for achievements and significant
contributions.
 Other comparable evidence.
C. Third Preference
The Third Preference category includes
professionals who hold a Baccalaureate degree (or
foreign degree equivalency); skilled workers capable
of performing a job requiring at least two years of
training or experience; and "other workers," who are
defined as those who work in positions requiring less
than two years of training or experience. Visas are
equally available to professionals and skilled workers
under this category. Congress has limited the quota
for "other workers" to only 10,000 per year.
All employees seeking to enter in the Third
Preference category must obtain a labor certification
from the Department of Labor.
D. Fourth Preference
The Fourth Preference category is for Special
Immigrants, which primarily includes ministers and
religious workers. To be eligible, the applicant must
have been a member of a religious denomination that
has had a bona fide non-profit religious organization
in the U.S. for at least the two years immediately
preceding the application. The applicant must be
entering the United States to work (1) as a minister of
religion, (2) for the organization in a religious
capacity, or (3) for the organization or a related
tax-exempt entity in another professional capacity.
The applicant must have been carrying on such work
as a minister, professional or other worker for at least
two years preceding the application. The applicant
must have at least a Baccalaureate degree to qualify as
a religious professional. A combination of experience
and education may not be substituted for a
Baccalaureate degree.
E. Fifth Preference
The Fifth Preference category is for foreign
investors. It allows conditional residency for a person
who invests $ 1 million (or under certain
circumstances $500,000) in a new commercial
enterprise that employs ten full-time U.S. workers.
The investor must directly manage the business or at
least be involved through policy formation. A "new
commercial enterprise" includes creating a new
business, purchasing a business and reorganizing it, or
expanding an existing business by forty percent. The
investment might be in cash or cash equivalents,
equipment, inventory, or other tangible property.
Indebtedness secured by the assets of the entrepreneur
might also be considered part of the investment.
3
III. LABOR CERTIFICATION
For most employees, labor certification will be a
prerequisite for obtaining employment-based
permanent residence. The Immigration & Nationality
Act requires that most foreign nationals who seek to
enter the U.S. to perform skilled or unskilled labor are
not admissible unless the U.S. Secretary of Labor
certifies that there are not sufficient U.S. workers
available for the position, and that employment of the
foreign national will not adversely affect the wages
and working conditions of similarly employed U.S.
workers.
The labor certification program for the
permanent employment of aliens in the U.S. is
administered by the Dept of Labor’s Employment &
Training Administration (www.doleta.gov).
How does it work?
The labor certification process involves a test
of the labor market to ensure that the employer is not
overlooking minimally qualified U.S. workers for the
position. The employer must perform certain
recruitment steps, evaluate each applicant’s
background, and determine whether any are qualified
for the position. Upon conclusion of the recruitment
activities, the employer must prepare a recruitment
report and file an Application for Permanent
Employment Certification (ETA Form 9089) with one
of the ETA’s National Processing Centers. In order to
ensure that U.S. workers will not be adversely
affected by the foreign worker’s employment, the
employer must offer a salary that meets at least the
prevailing wage as determined by the state’s
workforce agency (e.g., the Texas Workforce
Commission). The state agencies will typically rely
upon the Service Contract Act (SCA) and
Occupational Employment Statistics (OES) surveys
found at www.flcdatacenter.com. Employers may also
submit private surveys for consideration, but there are
stringent criteria governing how the survey was
conducted, its sampling size, and how the median or
mean wage was calculated.
Who must be considered?
The employer must consider any U.S. workers
who apply for the position, but does not need to
consider non-U.S. workers (e.g., F-1 students and H-
1B temporary workers). The employer must determine
the minimum job requirements for education and
experience, but may not tailor these job requirements
to the foreign worker’s background or include unduly
restrictive job requirements or duties in the job
description. The ETA’s Certifying Officer will utilize
the O*NET (www.onetcenter.org) to evaluate and
determine if the employer’s stated job requirements
and duties are normal to the occupation involved. The
O*NET is based upon the Standard Occupational
Classification (SOC) system used by Federal
statistical agencies to classify workers into
occupational categories for the purpose of collecting,
calculating, or disseminating data.
As a general rule, the employer may not
include as a requirement any experience which the
foreign worker has gained in the same or similar
position with the firm, nor require knowledge or skills
that could only be obtained in-house with the firm’s
products or services. Any special requirements, such
as a foreign language, must be thoroughly
documented as business necessity. This labor market
test is structured to determine if there are any
minimally qualified candidates available for the
position—it is not relevant to the Certifying Officer
that the incumbent foreign worker is the best qualified
of the candidates. U.S. candidates may be rejected for
only lawful job-related reasons, i.e., they do not meet
the stated minimum education/experience
requirements, or it is clear from their backgrounds that
they would not be able to perform the job duties. The
Certifying Officer will consider an applicant qualified
if he/she could learn the necessary job skills within a
reasonable period of on-the-job training.
What must be done under PERM?
PERM stands for Program Electronic Review
Management system. After conducting the required
recruitment and evaluating the candidates, the
employer will usually submit electronically the
ETA9089 application to the National Processing
Center. On the application the employer will attest to
the job requirements, the recruitment steps, the
prevailing wage, and that no qualified candidates
could be found. The application should be reviewed
within sixty days and a determination made to either
conduct an audit or to certify the employer’s
application. If an audit is required, then the employer
must submit the ads, postings, resumes, and
recruitment report to the Certifying Officer within
thirty days. The Certifying Officer will conduct
random audits to ensure the integrity of the program.
Under PERM, the employer will post a notice
on-site for ten consecutive business days, and conduct
six recruitment steps. These steps will involve the
following:
(1) Job ad in Sunday newspaper classifieds,
(2) Second job ad in Sunday paper or in an
appropriate professional journal, and
4
(3) Job order with the state workforce agency for
thirty days.
The employer must select three additional
recruitment steps from these alternatives:
a) Job Fairs
b) Employer’s Web Site
c) Job Search Web Site (other than
employer’s)
d) On-Campus Recruiting
e) Trade or Professional Organizations
f) Private Employment Firms
g) Employee Referral Program with
Incentives
h) Campus Placement Offices
i) Local and Ethnic Newspapers
j) Radio and Television Ads
The ad or posting must contain the company
name, direct applicants to report or send resumes to
the employer, provide enough detail to adequately
apprise the potential applicants of the job opportunity,
and indicate the area of employment if not apparent
from the employer’s address. Upon conclusion of the
recruitment steps, the employer will review the
resumes, conduct any interviews necessary to better
ascertain a candidate’s qualifications, and prepare a
recruitment report summarizing the results. The
recruitment report will describe the recruitment steps
undertaken and the results achieved, the number of
hires (if any) and the number of applicants rejected
(categorized by the lawful job related reasons for such
rejections). In the event of an audit, the Certifying
Officer may request the U.S. workers’ resumes or
applications (sorted by the reasons the workers were
rejected).
An approved labor certification is valid
indefinitely; however, it is valid only for the specific
job opportunity and for the area of intended
employment stated on the application. The ETA may
revoke a labor certification if they discover that there
has been fraud or willful misrepresentation in the
process.
IV. NONIMMIGRANT STATUS
Nonimmigrants may remain in the U.S. for only a
temporary period of time and are restricted to the
activity consistent with their visas. Nonimmigrants are
expected to depart the U.S. by the expiration date on
their I-94 entry/departure cards unless they have filed
for an extension. There can be serious legal
consequences for anyone who overstays his/her
authorized period of admission. The following is a
description of some of the commonly used
employment or business-related visas:
A. F-1 Student
An F-1 student is usually granted "Duration of
Status" which is the period required to complete the
program of study, plus any authorized period of
practical training. Students are expected to maintain a
full-time course load. Eligibility to work includes
part-time employment on-campus (full time during
break periods). Off-campus employment based on
economic hardship can be authorized by the CIS if a
student can verify that the hardship is based on
unforeseen circumstances. Both hardship
authorization and practical training are available only
after a student has been enrolled full-time for a
consecutive nine- month period.
There are two types of practical training:
curricular and optional. Curricular practical training
may be authorized by a Designated School Official
(DSO) during the student’s course of study, and may
include internships, cooperative education programs,
work/study programs, or practicums. The employment
training offered must be integral to the student’s
curriculum. Optional practical training is authorized
by the CIS upon completion of the student’s studies.
This employment should relate to the student’s major
area of study. One important caveat: if the F-1 student
has used twelve or more months of full-time curricular
practical training, then he/she will normally be
ineligible for optional practical training after
graduation.
F-1 students, M-1 vocational students, and J-1
exchange visitors are now closely monitored by
educational institutions and the CIS under the Student
and Exchange Visitors Information System (SEVIS)
mandated by the U.S.A. Patriot Act.
B. J-1 Exchange Visitor
The J-1 category includes certain students as well
as visiting scholars, corporate trainees, professors,
research assistants, and other field specialists. The J-1
program is administered by the U.S. Department of
State. As with F-1 students above, J-1 students may be
eligible for incidental on-campus employment if their
school is also their program sponsor. For students on
another sponsor’s program, that sponsor would need
to authorize any on-campus employment. The
Responsible Officer (RO) can authorize off-campus
employment based on hardship or academic training.
The academic training is available during or after the
student’ s academic program for a maximum of 18
months based on an employment offer in the field of
study. Bona fide post-doctoral positions allow up to
36 months of academic training. Many (but not all)
exchange visitors are obligated to a two-year foreign
residence in their home country prior to seeking an
H-1B specialty worker or immigrant status in the U.S.
Sometimes waivers of this requirement are not granted
5
even if the foreign national marries a U.S. citizen and
has U.S. citizen children.
C. B-1 Business Visitor
The B-1 visa is intended for business trips to the
U.S. to conduct business on behalf of a foreign
employer. The B-1 visitor may not be employed to
work for a U.S. employer. Permitted B-1 activities
include business meetings, conferences or seminars,
contract negotiations, consultations, litigation, sales
calls, plant tours, market research, contract or
warranty follow-up, and formal classroom training
(but not on-the-job training). Tourists are eligible to
seek B-2 visitor visas.
D. Visa Waiver Program
The visa waiver program may be used for the
same purposes as a B-1 business visitor or B-2 tourist
visa. This program waives the requirement to first
obtain a visa at a U.S. consulate. Instead, the visitor
may fly to the U.S. and apply at an inspection point
for entry into the U.S. The immigration inspector will
make an immediate decision whether to issue an I-94
entry card, and there is virtually no appeal of a
negative decision. This program is only for visitors
from certain countries where there has been
traditionally low fraud. The I-94 entry card will be
issued for ninety days, and no extensions or changes
of nonimmigrant status are allowed (except for
“immediate relatives” of U.S. citizens who might be
eligible to seek immigrant status).
E. TN Status
The TN category arose from the North American
Free Trade Agreement (NAFTA). Individuals from
Canada or Mexico must qualify under one of the
occupations listed in the treaty. Some of the
professions listed include engineers, architects,
accountants, economists, computer systems analysts,
foresters, graphic designers, mathematicians, research
assistants, and scientific technicians/technologists. A
Canadian may apply at an international airport or
border post for TN status; however, Mexicans must
first obtain a visa from a U.S. consulate. TN status is
approved for one year, and may be extended by the
CIS in one-year increments.
F. H-1B Specialty Worker
The H-1B category is for workers in specialty
occupations, which means an occupation that
normally requires attainment of at least a Bachelor’s
degree. Generally one must have a degree in the
specialty to qualify, or the degree equivalent.
Positions in education, engineering, accounting,
finance, and research are normally considered
professional. For nontraditional professions, the CIS
will look to the complexity or uniqueness of the job
duties, and whether a degree requirement is common
to the industry.
An employer must file a Labor Condition
Application (LCA) with the U.S. Department of Labor
(DOL) attesting that the hiring of H-1B workers will
not adversely affect the wages and working conditions
of other U.S. workers in the same position at that
location. The employer must determine the
“prevailing” wage for the region, and attest that the
wage offered to the foreign national is the higher of
the “actual” and of the “prevailing” wage. Notice
must be posted on-site, and an LCA file maintained
for public inspection.
There is a numerical limit on the number of H-
1Bs issued each year. The employer must plan well in
advance of hiring an H-1B nonimmigrant worker
because the annual allotment of H-1B numbers is used
up soon after applications are accepted for the
upcoming fiscal year. The H-1B petition can be
approved for three years, and extended for an
additional three years for a maximum stay in the U.S.
of six years. Section 11030 of the 21st Century
Department of Justice Appropriation & Authorization
Act allows an H-1B employee to obtain extensions
beyond the traditional six-year limit if an alien labor
certification has been pending for over one year. If a
PERM labor certification has been obtained and an
employer’s I-140 immigrant petition approved, an H-
1B worker who has used up the traditional six-year
limit could seek a three year extension if no immigrant
visa numbers are available. A person with an H-1B
might be "portable" to a new employer once a LCA is
filed with the DOL and a petition filed with the CIS.
An additional $1000 fee can be paid to the CIS for
"premium processing" so that the CIS will adjudicate
an H-1B (or L-1) petition within 15 days (or at least
issue a request for more evidence needed to promptly
adjudicate such a petition).
G. L-1 Intracompany Transferee
The L-1 category allows multinational
corporations to temporarily transfer certain employees
to their U.S. facilities. The threshold requirement is
that the employee has worked for the company for at
least one year (in the last three) prior to transferring to
the United States.
An L-1 petitioner must document that a
qualifying relationship exists between the U.S.
company and its foreign parent, subsidiary, affiliate or
branch. The general rule is that one company must
have effective control of the other. The CIS will
consider joint ventures or situations where there is less
than majority ownership but effective control of the
other, such as by veto power.
There are two types of L-1s: the L-1A for
managers and executives, and the L-1B for those who
have "specialized knowledge" of the company’s
6
product or an advanced level of knowledge of
processes and procedures of the company. The CIS
definition of managerial capacity includes
management of an organization or management of a
function of the company. This category does not
include front line supervisors unless the employees
they supervise are other professionals.
Usually an L-1 petition may be initially approved
for three years, and extended in two-year increments.
An L-1A manager/executive may normally stay a
maximum of seven years in the U.S.; an L-1B
"specialized knowledge" professional may stay a
maximum of five years.
The usual procedure is to file an individual L-1
petition with the CIS. For larger companies with many
transferees each year, there is an option to file for a
blanket L-1 petition approval. Upon approval of a
blanket petition, individual petitions no longer need be
filed with the CIS, thus cutting processing times. CIS
processing times for individual L-1 petitions can be
several months. An additional $1000 fee can be paid
to the CIS for "premium processing" so that the CIS
will adjudicate an L-1 (or H-1B) petition within 15
days (or at least issue a request for more evidence
needed to promptly adjudicate such a petition).
H. O-1 Extraordinary Ability
The O-1 category is for aliens with extraordinary
ability in the sciences, arts, education, business, or
athletics. Generally extraordinary ability means a level
of expertise indicating that the individual is one of a
small percentage who has risen to the very top of
his/her field. The CIS guidelines for proving
"extraordinary ability" under this category are
virtually the same as those for the First Preference
"extraordinary ability" petitions:
 Major prizes or awards.
 Membership in organizations which require
outstanding achievement.
 Cites to or articles about the individual’s
work.
 Participation as a judge of the work of others.
 Evidence of original scientific, scholarly, or
business-related contributions.
 Authorship of scholarly articles.
 Employment in a critical or essential capacity
for an organization or establishment that has a
distinguished reputation.
 High salary in relation to others in the field.
Criteria for artists:
 Perform services as a lead/starring participant
in a production or event with a distinguished
reputation.
 National or international recognition for
achievements.
  Performed in a lead, starring or critical role
for organizations and establishments with a
distinguished reputation.
 Commercial or critically acclaimed success.
 Significant recognition from critics, experts,
or government agencies.
 High salary in relation to others in the field.
I. E-2 Treaty Investor & E-1 Treaty Trader
Nationals of over forty countries with an
appropriate treaty might qualify for a nonimmigrant
treaty trader or treaty investor visa. A treaty trader
normally is involved with an exchange of goods or
services between his/her country and the United
States. A treaty investor must invest a "substantial"
amount of capital into a business enterprise that he/she
will personally develop and direct. The treaty investor
must place the funds at risk, have other resources, and
not merely invest a marginal amount of capital into
the business for the purpose of earning a living for the
investor and his/her family. The amount of the
investment is not defined but rather depends on the
nature of the enterprise.
J. Other Types of Employment Based
Nonimmigrant Visas
There are many other types of employment
related nonimmigrant visas for qualified foreign
nationals who will be employed in particular
positions. These categories include but are not
limited to: A visas for diplomats and their
dependents, D visas for crewmen, H-2A visas for
seasonal agricultural workers, H-2B visas for
temporary skilled or unskilled laborers, I visas for
international media representatives, M visas for
vocational students, P visas for athletes and group
entertainers, Q visas for participants in international
cultural exchange programs, and R visas for certain
religious workers.
V. DEVELOPMENTS AFFECTING
EMPLOYMENT BASED CASES
A. Department of Homeland Security
The most significant change arose from the
Homeland Security Act of 2002 (Pub. L. No. 107-296,
116 Stat. 2135) which moved both immigration
enforcement and adjudication services from the now
defunct Immigration & Naturalization Service into the
new Department of Homeland Security. Security and
enforcement concerns continue to take priority over
timely adjudications of applications for immigration
benefits submitted by employers for foreign national
employees and by U.S. citizens and residents for their
relatives.
The Department of Homeland Security includes
three distinct immigration agencies. Customs and
7
Border Protection (CBP) focuses on the movement of
goods and people across our borders. Immigration
and Customs Enforcement (ICE) focuses on the
interior enforcement of immigration and customs
laws. Citizenship and Immigration Services (CIS) is
responsible for adjudications of visa petitions and
applications for naturalization, asylum, or refugee
status.
This law requires in Section 458 that the
Department of Homeland Security (DHS) eliminate
immigration backlogs. Prompt adjudication of
applications and petitions for immigration benefits is
now a high priority for the CIS. The immigration
courts remain under the Executive Office for
Immigration Review of the U.S. Department of
Justice. The functions of the INS moved to the DHS
on March 1, 2003.
B. Special Registration
The Department of Homeland Security (DHS)
implemented a call-in "Special Registration" program
which required males over age sixteen who are
citizens or nationals of designated countries and who
are not U.S. citizens, permanent residents, diplomats,
refugees or asylees to register with the CIS. This
registration was part of the National Security
Entry-Exit Registration System (NSEERS), which
was the DHS’ first step towards developing a
comprehensive entry-exit program. The first group
required to appear for registration interviews were
citizens and nationals from Iran, Iraq, Libya, Sudan
and Syria. Another twenty countries were later added
to the list. This registration required a designated
foreign national to discuss with a CIS officer his stay
and activities in the U.S, provide fingerprints, and
have his photo taken. Failure to have timely
registered may result in a decision that the foreign
national is out of status and deportable.
C. Employment Authorization for Dependent
Spouses
Relatively recent legislation now allows E-2
spouses of treaty traders and treaty investors, as well
as L-2 spouses of L-1 intracompany transferees to
work and obtain employment authorization
documentation from the CIS.
D. Premium Processing
An additional $1000 fee can be paid to the CIS
for "premium processing" so that the CIS will
adjudicate an H-1B, O-1, L-1, or certain other types of
nonimmigrant petitions within 15 days (or at least
issue a request for more evidence needed to promptly
adjudicate such a petition).
Premium processing of an employer’s I-140
Immigrant Petition for Alien Worker is permissible if
a visa number is not currently available on the State
Department’s monthly Visa Bulletin and the
beneficiary is otherwise not eligible for an H-1
extension. The premium processing request may not
be filed more than sixty days before the H-1 status
will expire.
E. Extensions of Nonimmigrant Status
Section 11030 of the 21st Century Department of
Justice Appropriation & Authorization Act allows an
H-1B nonimmigrant employee to obtain extensions
beyond the normal maximum time limits if an alien
labor certification has been pending for over one year
or if an I-140 petition was approved and visa numbers
are unavailable.
F. Monitoring of International Students
F-1 academic students, M-1 vocational students,
and J-1 exchange visitors are now closely monitored
by educational institutions and the CIS under the new
Student and Exchange Visitors Information System
(SEVIS) mandated by the U.S.A. Patriot Act.
G. Protecting Immigration Benefits for Children
The Child Status Protection Act amended the
Immigration & Nationality Act on August 6, 2002.
Children of foreign nationals seeking U.S. permanent
resident status previously lost the opportunity to
immigrate with their parents if they reached age
twenty-one while waiting for the INS to adjudicate
pending immigration applications. Fairly
complicated new rules essentially require the CIS and
U.S. consular officers to establish such a child’s age
as the date of filing and not the date of adjudication of
the application for permanent resident status.
H. Address Change Notification Requirements
The CIS now requires all foreign nationals,
including permanent residents, to report any change in
address within ten days of moving. Failure to provide
notification is a misdemeanor offense that could result
in a fine and/or sentence. If the failure to provide
notice is found to be willful, the alien could be
removable from the U.S. The form to use for an
address change is the AR-11 which is available in the
Immigration Forms tab on the CIS website at:
http://www.uscis.gov
I. Additional Security Clearances
Due to the terrorist attacks of 9/11, and to
enhanced computer technology, many additional
security checks must be completed before the CIS or
U.S. consular officials will approve nonimmigrant
visas, immigrant status, or naturalization for U.S.
citizenship. Employers have seen and will probably
continue to see longer delays before foreign national
workers and their dependents will be able to enter the
8
U.S. or obtain extensions of status. Congress passed
the Enhanced Border Security and Visa Entry Reform
Act of 2002, which included a new security system
known as CHIMERA. Many other new laws such as
the National Security Entry Exit Registration System
(NSEERS) seek to coordinate security clearances
between the CIA, FBI, CIS, CBP, ICE, Department of
State, and other agencies. The move of all
immigration functions into the Department of
Homeland Security seeks to coordinate these new
security clearances; however, applications and
petitions for employment authorization and other
benefits continue to be delayed.
J. Employer or Job Changes While Immigration
Applications Pending
Downturns in the economy trigger new problems
for employers as well as foreign national employees.
The U.S. Department of Labor issued requirements
relating to applications for permanent alien labor
certifications in situations when the employer has laid
off workers during the prior six months as well as
when there have been layoffs in a particular industry.
If the employer has terminated workers, the employer
must provide documentation about the number of
workers laid off in the particular occupation and
provide lawful, job related reasons that any laid off
workers were rejected for the position for which
certification is sought. Laid off foreign national
employees often must scramble to change to another
nonimmigrant immigration status, if eligible, or seek
to take advantage of the H-1B portability provisions.
A useful change allows an intending immigrant whose
adjustment of status application has been on file for
over 180 days to transfer to a "same or similar"
position with another employer without abandoning
the pending immigration applications if the
employer’s I-140 petition has been approved. There
are still no regulations to interpret the definitions of a
"same or similar" position; however, many of these
cases have been approved by the CIS.
VI. FAMILY BASED IMMIGRANT STATUS
The immediate relatives of U.S. citizens do not
come under the quota system, so immigrant visas are
always available. "Immediate relatives" are defined as
spouses of U.S. citizens, parents of U.S. citizens over
the age of 21, and unmarried children (under the age
of 21) of U.S. citizens. Note that the spouse of a U.S.
citizen will only be granted "conditional" permanent
resident status for an initial two years if the couple has
been married less than two years at the time of
adjudication. The CIS will want to verify at the end
of this period that the couple still resides together
and/or that no fraud was involved. A waiver could be
sought if the couple divorced during this period.
Waivers could also be sought if the U.S. citizen died,
or based upon extreme hardship or if the foreign
national was battered or subjected to extreme cruelty.
If not an immediate relative, an applicant must
show a relationship under one of the family-based
categories listed below:
Family-Based Categories
1st Preference: Unmarried sons and daughters
(age 21 or older) of U.S. citizens.
2nd Preference: Spouses and children (under 21) of
permanent residents, or unmarried
sons and daughters (over age 21)
of permanent residents.
3rd Preference: Married sons and daughters of
U.S. citizens (over age 21).
4th Preference: Brothers and sisters of U.S.
citizens (over age 21).
A. First Preference
The First Preference category is reserved for the
adult children of U.S. citizens, i.e., those children who
are now over the age of 21 and therefore traditionally
fell out of the "immediate relative" definition. The
adult child must be unmarried. As with all the
family-based categories, there is typically a backlog
since there are more applicants than visas available
under the annual allocations. Currently applicants
from most countries have waited about six and a half
years for a visa number to become available in this
category. Applicants from certain countries have
faced an even longer backlog: fifteen and a half years
for nationals of the Philippines. Visa numbers in this
category for Mexican nationals are only available if
they registered prior to September 8, 1992. Unless
Congress increases the annual limit of 226,000
immigrant visas for family-based categories, it seems
likely these backlogs will continue to increase. The
Child Status Protection Act (CSPA) allows some
children to still be considered under the Second
Preference category even if they turned age
twenty-one before their cases were completed.
B. Second Preference
The Second Preference category is split into two
subcategories: 2A is reserved for the spouses and
unmarried children (under the age of 21) of permanent
residents, and 2B is reserved for unmarried children
age 21 or over. There is always a backlog. The
waiting period for most 2A applicants has recently
been nearly five years, and nearly nine years for 2B
applicants. The backlogs are even longer for 2B
applicants from Mexico and the Philippines.
9
Note that this category is reserved for petitioners
who have lawful permanent resident ("green card")
status. After a certain period of time (usually three to
five years) a permanent resident has the option to seek
naturalization, i.e., become a U.S. citizen. In some
cases it may be in the interest of the permanent
resident to seek citizenship in order to petition for
certain relatives and avoid the long delays in the
Second Preference category.
C. Third Preference
The Third Preference category is reserved for the
married sons and daughters of U.S. citizens,
regardless of age. The backlog for most Third
Preference applicants is now eight years; however, for
applicants from Mexico it has been sixteen years, and
applicants from the Philippines have been waiting
over seventeen years.
D. Fourth Preference
The Fourth Preference category is reserved for
brothers and sisters of U.S. citizens. Note that a U.S.
citizen must be at least age 21 to petition for siblings.
This category also has significant backlogs. Currently
applicants from most countries have waited eleven
years; however, for the Philippines the wait has been
over twenty-two years. In other words, a U.S. citizen
originally from the Philippines who filed petitions for
brothers and sisters in March of 1986 would only now
be able to immigrate his/her siblings born in the
Philippines. Once permanent residents obtain U.S.
citizenship, they sometimes petition for other family
members. Since so many people have obtained their
citizenship during the intervening years, it is expected
that the backlogs in this category will continue to
grow and reach thirty years or longer.
VII. CONCLUSION
The Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 made our complex
immigration system even more restrictive for future
immigrants. It is too early to determine if the
reorganization of the now defunct Immigration &
Naturalization Service within the Department of
Homeland Security will improve either immigration
enforcement or adjudication efforts. This complete
reorganization as well as the concentration on security
issues might result in even longer delays for families
seeking to reunite and for employers seeking to obtain
temporary as well as permanent employment for
needed foreign national personnel. Despite these
concerns, there have been a few changes that benefit
employers and their foreign national employees as
well as U.S. residents and citizens sponsoring their
relatives.
 Visa Bulletin
Number 122
Volume VIII
Washington, D.C.

VISA BULLETIN FOR SEPTEMBER 2008

A. STATUTORY NUMBERS
1. This bulletin summarizes the availability of immigrant numbers during September. Consular
officers are required to report to the Department of State documentarily qualified applicants for
numerically limited visas; the Bureau of Citizenship and Immigration Services in the Department
of Homeland Security reports applicants for adjustment of status. Allocations were made, to the
extent possible under the numerical limitations, for the demand received by August 8th in the
chronological order of the reported priority dates. If the demand could not be satisfied within the
statutory or regulatory limits, the category or foreign state in which demand was excessive was
deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of
the first applicant who could not be reached within the numerical limits. Only applicants who have
a priority date earlier than the cut-off date may be allotted a number. Immediately that it becomes
necessary during the monthly allocation process to retrogress a cut-off date, supplemental
requests for numbers will be honored only if the priority date falls within the new cut-off date.
2. The fiscal year 2008 limit for family-sponsored preference immigrants determined in
accordance with Section 201 of the Immigration and Nationality Act (INA) is 226,000. The fiscal
year 2008 limit for employment-based preference immigrants calculated under INA 201 is
162,704. Section 202 prescribes that the per-country limit for preference immigrants is set at 7%
of the total annual family-sponsored and employment-based preference limits, i.e., 27,209. The
dependent area limit is set at 2%, or 7,774.
3. Section 203 of the INA prescribes preference classes for allotment of immigrant visas as
follows:
FAMILY-SPONSORED PREFERENCES
First: Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for
fourth preference.
Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent
Residents: 114,200, plus the number (if any) by which the worldwide family preference level
exceeds 226,000, and any unused first preference numbers:
A. Spouses and Children: 77% of the overall second preference limitation, of which 75% are
exempt from the per-country limit;

10
B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second
preference limitation.
Third: Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first
and second preferences.
Fourth: Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first
three preferences.

EMPLOYMENT-BASED PREFERENCES
First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any
numbers not required for fourth and fifth preferences.
Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional
Ability: 28.6% of the worldwide employment-based preference
level, plus any numbers not required by first preference.
Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus
any numbers not required by first and second preferences, not more than 10,000 of which to
"Other Workers".
Fourth: Certain Special Immigrants: 7.1% of the worldwide level.
Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved
for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in
regional centers by Sec. 610 of P.L. 102-395.
4. INA Section 203(e) provides that family-sponsored and employment-based preference visas
be issued to eligible immigrants in the order in which a petition in behalf of each has been filed.
Section 203(d) provides that spouses and children of preference immigrants are entitled to the
same status, and the same order of consideration, if accompanying or following to join the
principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state
or dependent area when visa demand exceeds the per-country limit. These provisions apply at
present to the following oversubscribed chargeability areas: CHINA-mainland born, INDIA,
MEXICO, and PHILIPPINES.
5. On the chart below, the listing of a date for any class indicates that the class is oversubscribed
(see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and
"U" means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for
applicants whose priority date is earlier than the cut-off date listed below.)

11
 FAMILY CATEGORIES
China
Categories Worldwide India Mexico Philippines
(PRC)
1st 01 Apr 2002 01 Apr 2002 01 Apr 2002 08 Sept 1992 01 Apr 1993
2A 01 Dec 2003 01 Dec 2003 01 Dec 2003 Unavailable 01 Dec 2003
2B 15 Dec 1999 15 Dec 1999 15 Dec 1999 22 Apr 1992 08 Apr 1997
3rd 15 Jun 2000 15 Jun 2000 15 Jun 2000 15 Sept 1992 22 Apr 1991
4th 01 Oct 1997 08 Apr 1997 08 Apr 1997 15 Jan 1995 08 Mar 1986

*NOTE: For September, 2A numbers EXEMPT from per-country limit will be unavailable because
the annual limit for such visas will have been reached. This will only impact the processing of
Mexico F2A applicants.

EMPLOYMENT CATEGORIES
China
Categories Worldwide India Mexico Philippines
(PRC)
1st Current Current Current Current Current
2nd Current 01 Aug 2006 01 Aug 2006 Current Current
3rd Unavailable Unavailable Unavailable Unavailable Unavailable
Unskilled Unavailable Unavailable Unavailable Unavailable Unavailable
4th Current Current Current Current Current
Religious Current Current Current Current Current
5th Current Current Current Current Current

The Department of State has available a recorded message with visa availability information
which can be heard at: (area code 202) 663-1541. This recording will be updated in the middle
of each month with information on cut-off dates for the following month.

Employment Third Preference Other Workers Category: Section 203(e) of the NACARA, as
amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third
Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition
approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to
be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be
made for as long as necessary to offset adjustments under the NACARA program. Since the EW
cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual
limit to 5,000 began in Fiscal Year 2002.
12
B. VISA AVAILABILITY FOR OCTOBER

The Mexico F2A and Employment Third preference cut-off dates are “unavailable” for both
August and September, since those FY-2008 annual limits have been reached. The Visa Office
had originally anticipated that this would be a temporary situation. Then with the start of the new
fiscal year in October the cut-off dates would have returned to those which had applied during
June. However, continued heavy demand in those categories may require the establishment of
cut-off dates which are earlier than those which had applied in June. A formal decision
determination of the October cut-off dates will not be possible until early September.

C. DETERMINATION OF THE NUMERICAL LIMITS ON IMMIGRANTS REQUIRED UNDER

THE TERMS OF THE IMMIGRATION AND NATIONALITY ACT (INA)

The State Department is required to make a determination of the worldwide numerical limitations,
as outlined in Sections 201(c) and (d) of the INA, on an annual basis. These calculations are
based in part on data provided by the Citizenship and Immigration Services (CIS) regarding
number of immediate relative adjustments in the preceding year and the number of aliens paroled
into the United States under Section 212(d)(5) in the second preceding year. Without this
information, it is impossible to officially determine of the annual limits. To avoid delays in
processing while awaiting the CIS data, the Visa Office bases allocations on the minimum annual
limits as outlined in Section 201 of the INA, along with estimates. On July 22nd, CIS provided the
required data to the Visa Office.

The Department of State has determined the family and employment preference limits for FY-
2008 in accordance with the terms of Section 201 of the INA. The numerical limits for FY-2008
are as follows:

Worldwide Family-sponsored preference limit: 226,000

Worldwide Employment-based preference limit: 162,704

Under the INA Section 202(A), the per-country limit is fixed at 7% of the family and employment
annual limits. For FY-2008 the per-country limit is 27,209. The dependent area annual limit is
2%, or 7,774.

D. OBTAINING THE MONTHLY VISA BULLETIN

13
The Department of State's Bureau of Consular Affairs offers the monthly "Visa Bulletin" on the
INTERNET'S WORLDWIDE WEB. The INTERNET Web address to access the Bulletin is:

http://travel.state.gov

From the home page, select the VISA section which contains the Visa Bulletin.

To be placed on the Department of State’s E-mail subscription list for the “Visa Bulletin”, please
send an E-mail to the following E-mail address:

listserv@calist.state.gov

14
 TAB 02
Fundamentals of Family-Based Immigration
Knowing the Basics in
Immigration Law—What the
Statutes and Case law don’t
teach you. (Revised Edition-2008)

Michelle L. Saenz-Rodriguez
Saenz-Rodriguez & Associates, P.C.
2720 N. Stemmons, Suite 1200
Dallas, Texas 75207
www.sralawonline.com
Michelle@sralawonline.com
214-637-5700
 Introduction
I first wrote this paper in 2006 for the same conference. The response was quite
surprising. Many participants said that they liked the simplicity and asked if they could
make copies for their staff. As a result, when I was asked to teach the primer session on
family immigration, it made sense to just update the work that I had already created. I
have also added some checklists for each process that I have found useful in my own
practice.

This paper is intended as a guide and resource for practitioners of all levels. I
have tried to pull together the most basic questions that arise out of each application and
process. It is my hope that someone will find this handy enough to keep by their desk
and refer to it when a question arises and you don’t have time to go look it up on the
internet. It has been my experience that every now and then one must go back to the very
basics to make sure one remembers how to fill out a form, where it goes and what the
packet should look like. It is by no means all-inclusive, but it is solid outline and
reference tool for the most commonly used forms for the family based immigration
practitioner.

Keep in mind that not all people agree on how things should be done or how a
case or application should be presented. These thoughts are shared with you as a starting
point and the rest depends on your individual style. Good luck.

Michelle
 TABLE OF CONTENTS

I. THE WORLD CLASSIFICATION SYSTEM-WHAT’S 1ST PREFERENCE, 2ND

PREFERENCE, ETC.

II. THE I-130- PETITION FOR ALIEN RELATIVE

III. THE I-485- APPLICATION FOR ADJUSTMENT OF STATUS

IV. THE I-864- AFFIDAVIT OF SUPPORT

V. THE I-765- APPLICATION FOR EMPLOYMENT AUTHORIZATION

VI. THE G-325A- BIOGRAPHIC DATA FORM

VII. THE I-751- PETITION TO REMOVE CONDITIONS OF RESIDENCE

VIII. THE N-400- APPLICATION FOR NATURALIZATION

 I. The World Classification System
A. What does it all mean?

We must start with the basic premise to family based immigration- “Family
Reunification”. The family based preference system is based on the priority that
each classification is given in determining when certain family members of United
States Citizens (USC’s) and Legal Permanent Residents (LPR’s) are eligible to apply
for immigrant visas to live and work in the United States.

The preference categories which go from 1st preference to 4th preference 1establish the
priority dates and numerical limitations by which family members are entitled to
apply for their immigrant visas. Time frames can vary greatly depending on the
applicant’s country of origin. As indicated by the numbers assigned, it will normally
take a person in the 4th preference category much longer to immigrate than someone
in the 1st preference category. Recent backlogs have made the reality of 4th
preference category somewhere in the 20 year range with the potential to take much
longer even 30 or 40 years.

Not all relatives of UCS’s or LPR’s are subject to the preference systems. In
focusing on the principal objective of “Family Reunification”, Congress established
certain categories of Immediate Relatives (IR’s) who were not supposed to be
subjected to extended waiting time and delays that was inherit with the preference
system. IR’s are not subject to numerical limitations and as soon as the legal
relationship is established, they are eligible to make application for an immigrant
visa.

1
The Worldwide Classification System went from six categories which included both family based and
employment based visa to four categories for family based immigration and a whole separate category for
employment based immigrant visas. These changes took place as part of The 1990 Immigration Act and
took effect on October 1, 1991.

1
 B. Whose who?

Immediate Relatives: spouses and unmarried minor children of USC’s; parents of

USC’s who are 21 years or older; and certain widows and widowers of USC’s.

1st Preference: unmarried son and daughters (over 21yrs) of USC’s

2nd Preference: this category is further divided into two categories 2A-spouses and
unmarried minor children of LPR’s and 2B- unmarried adult children of LPR’s

3rd Preference: married sons and daughters of USC’s

4th Preference: brothers and sisters (adult) of USC’s

C. Priority Dates

With the exception of IR’s, all visa applicants are assigned a priority date2. This date is
key in determining when a relative can apply for her immigrant visa. Each month the
Department of State issues a “Visa Bulletin” which indicates which visas are being
processed based on the current priority date and the country of the prospective applicant’s
origin.

Depending on the category, the priority dates can move very slowly or not at all. In
recent months, we have seen a huge retrogression in the priority dates where some
classifications retrogressed more than 10 years. This makes the preference system very
uncertain in trying to determine how long it will take for actually be eligible to immigrate
to the United States. For example, in June, Isabella’s date (Dec. 2, 1992) was very close
to being current. In June, the visa bulletin showed that in her category they were
currently processing November 22, 1992. It appeared that she would definitely be able to
apply in July. However, in July, the visa bulletin for the same category showed a
retrogression back to May 1, 1990. This could mean another 4-5 year wait for Isabella.

Priority dates can be extremely important when trying to determine if someone can adjust
their status in the United States or must travel abroad to do consular processing.3 These
factors can determine whether a potential applicant is subject to any of the inadmissibility
grounds that are triggered by departure. More and more people are having to return
2
The priority date is usually established based on the date that the application was received by the USCIS.
It is not based on the date the application was approved. Priority date should be reviewed to make sure it
was properly designated as the receipt date. In certain cases, priority dates can be retained or recaptured
based on an earlier filed petition.
3
Section 245(i) of the INA only applies to those applications which were filed prior to April 30, 2001.
There are grandfathering provisions that are very beneficial and worth reviewing in determining eligibility
under 245(i).

2
 abroad to complete consular processing. Most practitioners agree that consular
processing is a risky proposition and should be avoided for any applicants who have
spent time in the United States without authorized status.

A practitioner may find it necessary to determine if a priority date can be “recaptured” or

“retained”. If an adult child is part of his mother’s application in a 2nd preference petition
and then his father naturalizes, his father must then file a separate petition for the adult
child, instead of getting the filing date assigned as the “priority date”- the applicant can
request to “retain” the earlier filing date used on the mother’s initial application. This
could potentially make a huge difference in the time it takes to process an application.
This basic evaluation must be done in every family petition to see if an earlier priority
date may be available.

D. The Visa Bulletin

The chart below is an example of the visa bulletin under the family based classification
system. This is the current bulletin that was issued by the Department of State for
October-2008. The visa bulletin is usually released in the middle of the prior month and
released through the DOS website. http://www.travel.state.gov/visa/visa_1750.html

On the chart below, the listing of a date for any class indicates that the class is
oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all
qualified applicants; and "U" means unavailable, i.e., no numbers are available. (NOTE:
Numbers are available only for applicants whose priority date is earlier than the cut-off
date listed below.)

All Chargeability
CHINA-mainland
Areas Except INDIA MEXICO PHILIP-PINES
born
Those Listed
Family
1st 15APR02 15APR02 15APR02 8SEP92 1APR93
2A* 1JAN04 1JAN04 1JAN04 1JAN04 1JAN04
2B 15DEC99 15DEC99 15DEC99 22APR92 8MAY97
3rd 22JUN00 22JUN00 22JUN00 15SEP92 1MAY91
4th 22OCT97 1MAY97 22MAY97 15JAN95 8MAR86

October 2008

3
 I. The I-130 Petition for Alien Relative

The I-130 Petition for Alien Relative is the first petition that must be filed for a family
member to immigrate to the United States. The purpose of the application is to establish
a qualifying relationship to a USC or LPR in order to qualify for a visa.

A. Who qualifies?

If you are a USC, you may petition for the following:

• Spouse
• Unmarried child under 21
• Married son or daughter of any age
• Parent if you are at least 21
• Your brother or sister if you are at least 21 years old

If you are an LPR, you may petition for the following:

• Spouse
• Unmarried child under 21
• Unmarried son or daughter over age 21

B. Who doesn’t?

There are certain categories of people who do not qualify for the petition even if they
have the required relationship.

• An adoptive parent or adopted child, if the adoption took place after the
child’s 16th birthday, or if the child has not been in legal custody for two
years
• A natural parent if the USC obtained his permanent residence through
adoption
• A step-parent or a step-child, if the marriage that established the
relationship took place after the child’s 18th birthday
• A spouse, if both were not present at the marriage ceremony, and the
marriage was not consummated
• A spouse, if you gained LPR status through prior marriage to USC/LPR
unless- 5 years has elapsed since LPR status or you can show by clear and
convincing evidence that prior marriage was not marriage fraud or your
prior marriage was terminated by death of prior spouse

4
 • A spouse who is in removal proceedings when the marriage took place-
must live outside the US for a two year period after the date of marriage4
• A spouse, if it has been legally determined that such alien has attempted or
conspired to enter into a marriage for the purpose of evading the
immigration laws (marriage fraud)
• A grandparent, grandchild, nephew, niece, uncle, aunt, cousin or in-law

C. How much does it cost?

The current filing fee for an I-130 is $3555. Payment may be made in the form of a
personal check, money order or cashier’s check. It should be made payable to
Department of Homeland Security.

Most practitioners require their client’s to bring the funds in the form a money order. It
provides a good tracking mechanism for the funds and avoids the risk of a personal check
having insufficient funds. Cash is NEVER accepted by the USCIS. Filing fees for
improperly filed petitions or denied petitions are not refunded. Payments must be for
exact amount required or the entire petition will be rejected.

D. Where does it go?

The I-130 petition is filed with the USCIS Service Center having jurisdiction over your
place of residence. For most of us who live in either Texas, New Mexico, or Oklahoma-
the proper mailing address is:

USCIS
P.O. Box 804616
Chicago, IL 60680-4107

If your client resides in any other state, the best place to go is the USCIS website to find
which Service Center has jurisdiction over the I-130 petition.

Always send your petition through verified form of delivery. Certified mail, return
receipt requested is always a safe bet. Priority Mail also has a confirmation delivery
option. For overnight delivery, Express Mail is usually the best option. Most other
overnight delivery options such as DHL or Federal Express do not deliver to Post Office

4
The condition can overcome with a showing of good faith marriage while in proceedings.
5
Most fees went up on July 31,2007. An application will not be considered filed until the proper fee is
accepted.

5
Boxes. There are countless examples of cases that are won or lost based on the proof of
delivery of an application. With the large volume of application received at the USCIS, it
is common that application are misplaced, misfiled, or lost. The burden is always on the
applicant to show that the application was properly filed and received by the USCIS.

E. What documents do I need to submit with my petition?

First of all, NEVER submit original documents to the USCIS. Always submit a certified
copy of the original and have the original available should it ever be requested. USCIS
NEVER returns documents to the applicant. Any documents not in the English language
must be translated and must contain a certification by the translator that establishes that
the translation is complete and correct and that she is competent to make the translation.
It should not be translated by the petitioner or the beneficiary of the petition. The
translation should include both the foreign language document and the translation.

• Proof of status: You must establish that you are eligible to file the
petition;

USC: If you were born in the US- provide a copy of your birth
certificate issued by a civil authority ( the hospital record
with your tiny footprints will not work!)

A copy of your naturalization certificate or certificate of

citizenship

A copy of Form FS-240, Report of Birth Abroad of a USC

issued by American consulate or embassy

A copy of unexpired U.S. passport6

LPR: A copy of the front and back of your I-551 LPR card. If
you don’t have the card, you may present a copy the stamp
in the passport showing LPR status and the biographic
page.

• Proof of qualifying relationship: You must prove that you have a

qualifying relative;

6
If none of these things are available, there are other ways to prove citizenship- see, Section 9, pg. 3 –
Instructions to I-130.

6
 Spouse: A copy of your marriage certificate. Must be issued by
civil authority.

If previously married, that all prior marriages have been

legally terminated

Child and you are the mother: A copy of the child’s birth
certificate showing mother’s name and child’s name.

Child and you are the father: A copy of the child’s birth
certificate showing both parent’s name and marriage certificate.

Child born out of wedlock and you are the father: If the child was
not legitimated before reaching 18 years old, you must file proof
that a bone fide parent child relationship existed between father
and child before reach 21 years.7

Brother or Sister: A copy of your birth certificate and a copy of

the brother/sister’s birth certificate with at least one common
parent. If you have a common father and different mothers, submit
copies of the marriage certificates of the father to each mother and
that the prior marriages were legally terminated.

A Mother: A copy of your birth certificate showing your name and

your mother’s name.

A Father: A copy of your birth certificate showing the name of

both parents. Also submit a copy of the marriage certificate
showing that your parents were born prior to your birth and that
any prior marriages of either your father or your mother were
legally terminated.

A Stepparent/stepchild: A copy of the marriage certificate of the

stepparent to the child’s natural parent showing that the marriage
occurred before the child’s 18th birthday and copies showing that
any prior marriages were legally terminated.

Adoptive parent or adopted child: A copy of the adoption decree

showing that the adoption took place before the child became 16
years old. You must also show that the child was in the legal
custody of and resided with the parents who adopted him or her for
at least two years before or after the adoption.
7
Most common forms of evidence include proof of financial support, living together and interest in child’s
welfare.

7
 • 2 photos- one of the petitioner and one of the beneficiary: According
to the instructions, photos are only required for spousal petitions-
However, many practitioners include one passport style photo of each
the petitioner and the beneficiary. Write the name in pencil on the
back of the photo along with the A# if available.

• Form G-325A: This form is required for both the petitioner and the
beneficiary. It must be filed in quadruplicate. It contains biographic
date as to addresses, work history. ( More to come on this form in
different section of this paper)

F. Final thoughts:

Make sure that the I-130 petition is signed by the petitioner. Make sure that all of the
questions are answered fully and accurately. Do not leave blanks- write in “n/a” for any
item that does not apply. The answers to these questions will remain in the file for the
rest of history! It is important to try and be as accurate as possible on dates of entry,
address, employment history, etc.

Make sure all copies are legible and neat. Always keep a copy of whatever documents are
sent to the USCIS in case the file must be re-created at a later date.

8
 II. The I-485 Application for Adjustment
of Status

The I-485, Application to Register Permanent Residence or Adjust Status, is the next
application in the process of legally immigrating to the United States through the family
based immigration system. The I-485 application is the form used to adjust status from
many other forms of underlying petition approvals such as asylum status, refugee status,
admission as a fiancé, Cuban Adjustment Act, registry, and employment based petitions.
However, comments in this paper are limited to those adjusting through an approved
family based petition (I-130).

A. Who qualifies?

• You may file an I-485 if you have an immigrant visa immediately

available to you based on an approved immigrant petition. (I-130)
• You are the spouse or child (derivative) and are filing based another
adjustment applicant’s (principal) eligibility to adjust status.
• You entered legally into the United States or you are eligible to adjust
under 245(i)

If the spouse or child is in the United States, the derivatives may either file their
applications concurrently with the principal applicant, or at any time after the principal is
approved, if a visa number is available.

If the spouse or child is abroad, the person adjusting status in the United States should
file the Form I-824, Application for Action on an Approved Application or Petition,
concurrently with the principal’s adjustment of status application to allow the derivatives
to immigrate to the US without delay if the principal’s adjustment application is
approved.

B. Who doesn’t?

• You entered the US in transit without a visa (TWOV)

• You entered as a nonimmigrant crewman
• You were not admitted or paroled following inspection

9
 • Your authorized stay expired before filing this application
• You were employed without authorization
• You failed to maintain lawful non-immigrant status, through no
fault of your own or for technical reasons; unless you are applying
because you are: IR of USC, K-1 who married with 90 days, H or
I non-immigrants or special immigrant
• Admitted as K-1, but did not marry the USC who petitioned for
you or K-2 whose parent did not marry the USC who petitioned
• You are or were J-1 or J-2 and are subject to the 2 year foreign
residency requirement and have not complied or been granted a
waiver
• You have A,E, or G nonimmigrant status(diplomats) unless you
complete the form I-508 to waive diplomatic rights or I-566 for A
&G
• You were admitted to Guam as a visitor under Guam visa waiver
program
• You were admitted to US as a visitor under the Visa Waiver
Program (VWP), unless you are applying as IR of USC
• You are already a conditional permanent resident

Many of the ineligibility categories can be overcome through a specified waiver, such as
the J-1 foreign residency requirement, the diplomatic non-immigrants, and visa waiver
program. However, many are very dangerous and should be used in determining a
client’s potential eligibility for adjustment. One problem that can be easily overlooked is
the K-1 or K-2 entrant who does not marry the original petitioner on the K-visa. This is a
bar to adjustment in the future even if married to a USC and there is an approved I-130.

In the family based scenario, the most recent problem to filing for adjustment is the
elimination of the 245(i ) of the INA. Under 245(i), any beneficiary of a petition that
was filed prior to April 30, 2001 is eligible to adjust their status with the filing of a
supplement application I-485 Supplement and the payment of a $1000 penalty. After the
final sunset of this provision, there has been no other mechanism for those who entered
the United States without inspection (EWI) to adjust their status in the United States.
Therefore, those who are the beneficiaries of an approved I-130 have no other option, but
to proceed with Consular processing abroad. This is becoming increasingly more risky
for the client because of the unlawful presence bars under section 212 (a) of the INA.
Most of these bars are triggered by departure and will require a waiver prior to returning
to the US as immigrants. These waivers cannot be adjudicated immediately and usually
require the applicant to wait abroad for at least 6-8 months pending the adjudication of
the waiver. Moreover, the waiver requires the showing of “extreme hardship” on a
qualifying relative.8

8
This creates a huge problem because the statute does not include children as qualifying relatives and the
DHS cannot consider hardship to the children in making their determination.

10
In the past, most unlawful presence waivers were generously granted with an approval
rate in the 90% range. However, recent trends have shown that the DHS Offices abroad
are applying stricter standard for determining what constitutes “extreme hardship” and a
few denials based on the more narrow interpretation have begun to trickle out of various
Consular Posts.9 If denied, the applicant is barred from returning to the United States for
a period of up to 10 years in most cases. This risk alone should be considered and fully
discussed with the client before sending them to process his visa abroad.

Therefore, for those clients who do not qualify for adjustment, an assessment needs to be
made to see if there is any way that the grandfathering provisions of 245(i) can be used to
make them eligible.10

C. How much does it cost?

The current filing fee for the I-485 is $ 1010 or $680 for those under 14 years of age.
You are also required to file a fee of $80 for biometrics. Biometrics are required for all
applicants between the ages of 14-79. The fees for biometrics and the I-485 can be
combined and paid in one check or money order. (i.e. $1010) Biometric Services include
fingerprints, photograph and signature.

D. Where does it go?

The answer to this question depends greatly on where you live. Most adjustment
applications will be filed with the USCIS Lockbox facility having jurisdiction over your
place of residence. For those who live in Texas, New Mexico and Oklahoma the mailing
address is:

USCIS Lockbox Addresses-

For United States Postal Service (USPS) deliveries:

USCIS
P.O. Box 805887
Chicago, IL 60680-4120

9
Several I-601 denials have relied on very old case law to determine how to define “extreme hardship”, see
Matter of W, 9 I&N Dec.1, Matter of Shaughnessy,12 I & N Dec. 810, Matter of Ngai, 19 I &N Dec. 245
10
USCIS issued a detailed memo on grandfathering under 245(i) and the memo is available on AILA
infonet.

11
 For private couriers (non-USPS) deliveries:
USCIS
Attn: FBASI
131 South Dearborn, 3rd Floor
Chicago, IL 60603-551

E. What documents do I submit with my application?

The I-485 must be filed with evidence of eligibility. In a family based case the
application should include the following:

• I-130 approval that makes a visa immediately available to you

• A copy of your foreign birth certificate (with translation)
• If applying as the spouse or child of the principal, then you must
file proof of the qualifying relationship
• File Form G-325A, biographic information sheet
• Medical examination form I-693
• Evidence of status- I-94 entry document Arrival/Departure Record
• Copy of passport page with nonimmigrant visa
• Affidavit of support form I-864
• 2 passport style photos
• filing fee $930 + $80=$1010
• I-485 Supplement- if 245(i) eligible w/$1000 penalty

F. Optional filings:

Based on the filing of the I-485 adjustment of status application, applicants can also
apply for authorized employment and a travel permit.12 In order to obtain a work permit
the applicant should file form I-765 and the following:

• 2 photos
12
Caution: not all applicants are eligible for a travel document during the processing of their application.
Any departure, even one with the permission of the USCIS can trigger unlawful presence bars.

12
 • money order or check for $340/ no fee if sent concurrently with the
I-485 application

This form can be filed concurrently with the I-485. The normal processing time for this
application is 90 days.

A travel permit can also be filed concurrently with the I-485. This is available in limited
circumstances and the risks associated with departing the United States during the
adjustment process should be carefully evaluated before obtaining permission to travel. In
order to obtain a travel permit the applicant should file form I-131 and the following:

• 2 photos
• money order or check for $305/no fee if sent concurrently with the
I-485
• proof of pending adjustment application issued by USCIS
• passport or identity document
• proof of current status

A travel permit can also be filed after the application has been pending and the need for
travel arises on an emergency basis. Most local offices allow walk in emergency request
for advanced parole. Consult each jurisdiction for local policy on emergency advanced
parole.

G. Final thoughts:

Make sure all questions are answered accurately and completely. The application must
be signed by the applicant and all answers are considered testimony under oath and
subject to the penalties of perjury. LIABIALITY EXTENDS TO BOTH THE
APPLICANT AND THE PREPARER ON MOST OF THESE APPLICATIONS. The I-
485 contains several “hot button” questions that require inquiry on the part of the attorney
prior to the interview in order to assess potential problems that may arise and any
grounds of inadmissibility that may require a waiver at the time of interview.

Section 3 asks several questions which may determine inadmissibility. It is wise to

carefully review each of these questions with your client during the preparation of the
application. Many times clients don’t fully understand what a conviction means or they
may have been told that a deferred adjudication is not a conviction and will have no
impact on their record or that they do not have to disclose that information. Unlawful
employment and the use a false documents may trigger permanent bars and those risks
need to be evaluated up front and before proceeding. Any departure and illegal re-entry
between 1997 and the present can lead to serious issues with eligibility.

13
Prior removals, departures (voluntary or not) or refused admissions can have serious
consequences if not evaluated during the initial assessment of eligibility. Many
applicants have been detained and deported without warning at adjustment interviews.

As legal advisors, is it our responsibility to devise the best legal strategy to assure the
successful outcome for our clients. However, without diligent preparation, complete
knowledge of the facts and the law, Immigration Law can become a minefield with
serious implications both as a legal practitioner and of course, for the client.

III. The I-864 Affidavit of Support

The I-864 Affidavit of Support is the form that is required to be filed with the adjustment
application. The purpose of the form is to provide evidence that the intending immigrant
has the financial means to come into the United States and is not likely to become a
public charge. In family based cases, it must be submitted on behalf of the applicant by
the petitioner (sponsor) or if the petitioner does not meet the required standard, then a co-
sponsor can be used to provide the evidence of adequate financial means.

A. What is the Sponsor’s Obligation?

The person who signs as the sponsor is obligated until one of the following
events occurs:

• The immigrant becomes a USC

• The immigrant can be credited with 40 qualifying quarters of work
• The immigrant departs the US permanently
• The immigrant dies

** It is important to note that divorce does not terminate the obligation of

the sponsor.

***The sponsor must be USC or LPR, over the age of 18 and domiciled in
the United States

B. What is the income requirement?

The income required changes slightly every year and is determined by the
issuance of the yearly poverty guidelines. The sponsor must provide proof

14
 that the household income is equal to or exceeds 125% of the poverty
guidelines. The household includes the sponsor, all persons related by birth,
marriage or adoption to the sponsor living in the residence. It also includes
any dependents and any immigrants previously sponsored.

2008 Poverty Guidelines13

Household Size 100% 125%

2 $14,000 $17,500

3 $17,600 $22,000

4 $21,200 $26,500

5 $24,800 $31,500

6 $28,400 $35,500

7 $32,000 $40,000

8 $35,600 $44,500

C. How do I show evidence of income?

The most common way to show evidence of income is through income tax returns and a
letter of employment. The CIS now requires only 1 year of income tax returns and in
certain cases, you may now the new I-824EZ form. If you were not required to file
your income tax, then you must provide an explanation as to why you were not required
to file them. If you are relying on someone else’s income, you must submit one year of
income tax for that person as well. That person will also have to sign the household
member contract or I-864A.

The letter of employment must provide salary, beginning date, and type of work done.
It should be on company letterhead. Recent pay stubs should also be included. This
will be required for all sponsors and members of the household whose income is being
used to reach the guideline income level.

Assets can also be used to meet the income requirement. If you are going to use assets,
you must make sure you include evidence of the cash value and they should be free of
liens or liability. If the assets carry a lien, you must provide proof of the lien and the
amount.

13
Alaska and Hawaii have separate charts which can be located on the form I-864P on the USCIS website.

15
 Examples of assets include: cash on hand (bank accounts), stocks, bonds, certificate of
deposits, personal property and real estate. The value of the assets should total at least
five times the amount of the shortfall in income.14

D. What documents do I submit?

The following documents should be submitted along with a notarized I-864 form:

• Proof of current employment-Original letter, pay stubs, etc.

• Federal income tax returns for the most tax year along with W-2’s
• Proof of sponsor’s status as LPR or USC
• Proof of assets(if relying on them to meet the requirements)

All of the above for Co-sponsor (if needed)

E. Final thoughts:

The I-864 requirement can be a huge problem for the adjustment applicant. The law
does not allow a waiver for the public charge ground of inadmissibility and it is very hard
to overcome. It is important that the client realizes what is required and why it is so
important. One potential problem is filing “head of household” or “single” when actually
married. Attorneys should review the documentation carefully before submission to
avoid potential problems at the time of adjustment. Also, be on the lookout for “step-
children” dependents and other convenient tax deductions that the notary told the client
would mean a bigger refund. These returns must be amended in order to qualify under
the required guidelines.

A frequent question that arises is whether the beneficiary’s income can be used in the
calculation of the household income. There are different variations on the interpretation
of this rule, but most USCIS officers agree that as long as the employment was legal
(authorized) and reported as income, it can be used towards household income.

Finally, the issue of a co-sponsor can be ethically tricky. The co-sponsor should fully
understand his obligations under this legal contract and should seek independent advice
as to whether he wants to under take such an obligation. I personally feel that I cannot
advise a co-sponsor as to whether he should sign the affidavit or not. I always provide a
copy of the form with instructions and ask him to seek independent advice.

14
This is not set by law, however general practice in local offices is that of 5X the amount needed to make
up the difference.

16
IV. The I-765 Application for Employment
Authorization
The I-765 is the form used to request an employment document. The applicant for
adjustment of status is entitled to apply for a work permit while his adjustment
application is pending before the USCIS. It usually takes 90 days in which to
adjudicate the application for employment authorization. However, with the current
backlog in processing all applications, the reality of the I-765 processing times is
much longer now ranging between 4-5 months.

The regulations allow for an interim EAD to be issued after 90 days. In order to get
an interim EAD, you should make an appointment through the USCIS website and
take proof of the properly filed I-765 (receipt) and eligibility for the benefit sought
(i.e. adjustment application receipt). District Offices no longer have the ability to
produce interim EAD’s, however, there are specific guidelines for the local offices to
follow to make sure that an interim EAD is issued by the proper Service Center. (See
Aytes Interoffice Memorandum, Dated August 18, 2006)

**This has been a problematic issue for most local offices. The vast majority of
Information Officers have limited knowledge on what steps should be taken to insure
the expedient issuance of an employment document. On going discussions between
the private bar and USCIS are currently taking place to find a workable solution.

Taking the USCIS Memo- dated August 18th, 2008- Issued by Michael Aytes has
been useful on several occasions.

A. How much does it cost?

The filing fee for the I-765 is $340. It should be paid by check or money order
made payable to “Department of Homeland Security”.

B. Where do I file it?

It depends on where you file your adjustment application. If you file your
application at the lockbox, then your I-765 should also be filed at the lockbox in
Chicago, Illinois. If you filed your adjustment with the Texas Service Center,
then it should be filed with the Texas Service Center. You may also file for your
employment authorization by using electronic filing. Electronic filing is done
through the USCIS website by following instructions and with the use of a credit
or debit card.

17
 C. When do I file it?

You can file your I-765 concurrently with your application for adjustment of
status or after you receive a receipt for the application. The application must also
include two photos and proof of eligibility.

V. The G-325A-Biographic Data Form

The G-325A is a biographic date form that is used in conjunction with many different
immigration applications. In marriage cases, it is used for both the petitioner and the
beneficiary. It is also required of an applicant for adjustment of status.

The form is rather straight forward and asks very basic questions about parent’s place
of birth, spouse name, previous marriages, etc. It also requires information on where
the applicant has lived and worked for the last five years.

A. What is important about this form?

The main reason I even included this form is because once it is filed with the
USCIS, it becomes part of the permanent file. On more than one occasion, the G-
325A has been used to impeach witnesses in immigration proceedings who have
put less than accurate information as to their place of residence or employment.

When used in the context of a family petition (I-130) or adjustment application (I-
485), it appears to be an innocuous form that must be filled out but without much
thought given to the accuracy of information, dates, etc. It is critical that one try
to provide the most accurate information on the form so that there are no future
negative consequences.

VI. The I-751 Petition to Remove

Conditions of Residence
The I-751 Petition to Remove Conditions of Residence, is the form used for those
immigrants who are granted conditional resident status (CRS). This means that those
who adjusted their status prior to the completion of their two year anniversary of
marriage are given a conditional resident status that expires two years after the date of
adjustment. The petition to remove those conditions must be filed within 90 days of

18
the expiration of the conditional status or they are subject to termination of the legal
status in the United States.

A. Who files this application?

If you are still married, the application should be filed jointly by the applicant and
by the spouse who filed the original petition. However, there is a waiver of the
joint filing requirement.

To qualify for the waiver, you must show one of the following:

• You entered the marriage in good faith, but your spouse has died;
• You entered the marriage in good faith, but the marriage was later
terminated due to divorce or annulment;
• You entered the marriage in good faith, you remain married, but
have been battered or subjected to extreme cruelty by your USC or
LPR spouse; or
• The termination of your status and removal would result in
extreme hardship

*children of conditional residents can be included in the same petition or may file
separately.

B. What documents do I file?

You should file a copy of the LPR card along with two photographs. You must
also file evidence of the relationship:

• Birth certificates of children born of the marriage

• Lease/mortgage documents showing joint occupancy
• Financial records showing joint assets and joint responsibility
• Affidavits from at least two people who have known both of you since
conditional residence was granted and has personal knowledge of the
relationship.
• Any other relevant document to establish a legitimate marriage

If you are filing to waive the joint filing due to death, you must submit a death
certificate in addition to the above documents.

19
If you are filing to waive the joint filing requirement because your marriage has
been terminated, you must submit all of the above and a copy of the divorce
decree or annulment.

If you are filing to waive the joint filing requirement as a battered spouse, you
must submit all of the above and proof of the abuse including any police reports,
medical reports, or legal documents such as protective orders and any other
relevant information regarding the abuse.

C. Where do I file?

If you live in Texas, New Mexico or Oklahoma, you should send your application
to the following address:

USCIS Vermont Service Center

75 Lower Welden Street
P.O. Box 200
St. Albans, VT 05479-0001

D. How much does it cost?

The filing fee for the I-751 is $545 payable by check or money order to the
Department of Homeland Security.

***Only the I-751 Revised 08/25/08 version will be accepted. All other
versions will be rejected which will most likely cause delay in your case.

E. Final thoughts:

The I-751 application is something that we should prepare our client for at the
time of the adjustment application. If they know what to expect and understand
what will be required of them, it will be easy to gather the required documentation
for submission at the end of the two year period.

Unfortunately, many marriages do not survive the two year period and many
waivers are filed each year. As with any immigration application, much thought
must be given to the preparation of waiver application and the evidence used to
support the application. Be aware, that you cannot file for the waiver until the
divorce or annulment is final and many times, the USCIS will not accept the
waiver if a joint I-751 has already been filed. This can cause significant delays in
processing and puts the applicant in danger of being placed into proceedings.

20
 Any I-751 that has been denied at the USCIS can be renewed before the
Immigration Judge. The Government has the burden of showing that the marriage
was fraudulent. It is a very difficult case for the government to prove and with
good defensive preparation, most waiver cases can be won in Court.

VII. The N-400 Application for

Naturalization
The N-400, Application for Naturalization, is the final step in the immigration
process. There are different requirements for those wishing to apply for
naturalization. For those who adjusted their status through marriage to a USC and
remain married to that USC, they may apply after 3 years of LPR status. For most
others, the wait is 5 years of LPR status.16

There are also requirement of physical presence in the United States during those
time periods and good moral character during the relevant time periods. Good moral
character is defined by the INA, however, many other factors come into consideration
during the Naturalization process.

Finally, there is an English and American History requirement to complete the

citizenship process.

A. Who is eligible?

• Must be over 18 years of age

• LPR for 5 years
• LPR for 3 years and married to and living with USC for last three
years and spouse has been USC for 3 years
• LPR and have 3 years of service with US Armed Forces and you
are either on active duty or filing within six months of honorable
discharge
• You served during a period of recognized hostilities and enlisted or
re-enlisted (you do NOT have to be a LPR)

B. How much does it cost?

16
There are exceptions for military personnel who are active duty and may apply for expedited treatment of
their applications.

21
 The filing fee for N-400 is $675 including biometric services.

C. Where do I send the application:

The application should be sent to the USCIS Service Center having jurisdiction over
the applicant’s place of residence. If you live in Texas, New Mexico or Oklahoma
your application should be sent to:

USINS Texas Service Center17

Attention N-400 Unit
P.O. Box 851204
Mesquite, TX 75185-1204

D. What are the legal requirements?

• You must have been physically present in the US 30 months out of the
five years and absences of more than 6 months, but less than 1 year, will
interrupt continuity, unless applicant can show he did not abandon his
residence
• Good Moral Character for the statutory period (3 or 5 years)18
• Must be able to read, write, speak and understand words in ordinary usage
in the English language
• Demonstrate knowledge of US Government and History19
• Be willing to take the Oath of Allegiance

*Effective October 1, 2008, USCIS implemented a new examination for all

applicants who file the N-400. The new test takes a broader approach to the
historical knowledge required to be come a citizen. A sample test can be
found on the USCIS website. It also expands the required vocabulary for the
reading and the writing part of the examination.

E. What documents are required?

• Proof of LPR status- copy of LPR card front and back

17
This address is likely to change to a direct mail lockbox. The USCIS issued a federal register
announcement on September 12, 2008 and withdrew it on October 10, 2008. The new direct mail address
should be operational before the end of 2008.
18
The USCIS can look beyond the five years to determine good moral character, there are certain
permanent bars to naturalization such as aggravated felonies and murder.
19
There are some exceptions to the language and history requirement for those over age 50 with at least 20
years of LPR status, over 55 and 15 years LPR status and those who are physically impaired and unable to
complete the exam.

22
 • Any and all documents related to any criminal conduct at any time
• 2 photos
• Filing fees
• If applying on basis of marriage to USC- then you must submit proof of
marriage for the 3 years.

F. Final thoughts:

The naturalization process is one that can be the end of a very long road in immigration.
However, in this heightened enforcement environment with the Department of Homeland
Security, it is critical that we as practitioners closely scrutinize all cases before
recommending an application for naturalization. While there may be the strong desire for
someone to become a citizen of this nation, many times it is wiser to refrain from the
process to avoid the risk of removal proceedings. Old deferred adjudication cases
continue to raise their ugly heads and expose clients to loss of their status as LPR’s.-
some without the ability to file waivers or have any hope of avoiding removal and
permanent loss of their benefits.

It is our responsibility as legal advisors to review, analyze and advise our clients about
the potential risks associated with any application- naturalization is no exception.

23
 Appendix

Forms- Sample Checklists

24
 I-130 Checklist

Client Name: ________________________________

Phone Number: ________________________________
Attorney: ________________________________
Assistant: ________________________________

Date

G-28 _________ __________________

Application _________ __________________

Cover Letter/Priority/Certified Mail#________

Application filed _________ __________________

Copy to file _________ __________________

2 Photos- Petitioner/Beneficiary _________ __________________

Money order $355-payable to USCIS _________ ___________________

G-325A for both Petitioner/Beneficiary _________ ___________________

Supporting documents received _________ ___________________

1. Birth Certificate _________ ___________________
2. Children’s Birth Certificate _________ ___________________
3. Divorce Decree _________ ___________________
4. Death Certificate _________ ___________________
5. Naturalization Certificate _________ __________________
6. Work/home addresses _________ __________________
last 5 years

Interview Date: _________ ___________________

Notice sent to Client _________ ___________________

Check client Balance _________ ___________________

25
Client prep before interview _________ __________________

Additional Notes:
__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

26
 Adjustment I-485 Administrative Checklist

Client Name: ________________________________

Phone Number: ________________________________
Attorney: ________________________________
Assistant: ________________________________

Date

G-28 _________ __________________

Application _________ __________________

Cover Letter-priority/certified mail#______

Application filed _________ __________________

Copy to file _________ __________________

Criminal history record _________ ___________________

Money order $1010 _________ ___________________

245(i) penalty- $1000 _________ ____________________

I-485A-supplement (if needed) _________ ____________________

Work Authorization I-765 _________ ___________________

2 photos _________ ___________________

G-325 for Applicant _________ ___________________

I-131-Advanced Parole (optional) ________ ___________________
2 photos ________ ___________________

Supporting documents received _________ ___________________

1. Birth Certificate ________
2. Children’s Birth Certificate ________
2a Marriage License ________
3. Divorce Decree ________
4. Death Certificate ________
5. Naturalization Certificate ________
6. 2 Photos of each person ________

7. I-864: ________

27
 Income Tax ( 3 years) ________
Letter of employment _________
Paycheck stubs _________
Proof of status/sponsor _________
Income met: yes/no _________

Co-sponsor _________
Income tax _________
Proof of co-sponsor status _________
Letter of employment _________
Household Contract _________

Assets: (5x shortfall) _________

9. Medical Exam _________

10. Work/home addresses ________

last 5 years
11. I-130 Approval Notice ________
12. 245(i) proofs ________
a. grandfathered pet. ________
b. physical presence 12/2000 ________
*not needed if PD prior to 1/14/98*

Work Authorization Received _________ ___________________

Fingerprint Appointment __________ ___________________

RFE-Received/Due date logged __________ ___________________

Client notified __________ ___________________
Sent-Priority mail/certified #________

Interview Date: _________ ___________________

Notice sent to Client _________ ___________________

_________ ___________________

Client prep before interview _________ __________________

Client Balance ($) check _________ ___________________

Attorney prep for case _________ ___________________

28
Relief:

Granted______
I-72 Issued __________ __________________
Due date: __________ __________________
Client Notified/calendared __________ __________________
I-72 sent Priority/Certified#______ __________ __________________

Denied_______

NTA Issued _________

Transferred to Court file _________

Additional Notes:
__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

Potential Issues:

________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

29
 I-751 Petition to Remove Conditions Checklist

Client Name: ________________________________

Phone Number: ________________________________
Attorney: ________________________________
Assistant: ________________________________

Date

G-28

Application

Required Documents:
1. Copy of Permanent
Resident Card (front
& back)

2. Evidence of Relationship
a. Birth Certificates of any
children

b. Lease or mortgage
contracts showing joint
occupancy

c. Financial records showing

joint ownership of assets
(bank accounts, insurance
policies, etc.)

d. Financial records showing

joint responsibility for
liabilities (tax returns, utility
bills, credit cards, auto
insurance, etc.)

e. Family
photographs

3. Criminal History Record

4. Money Orders

30
 a. $465 for Application

b. $80 for Biometrics

Cover Letter / Application /

Supporting Documentation Filed

Copy to File

Fingerprints

Interview Date

Notice sent to Client

Client prep before interview

Balance $ Check ____________ __________________

Attorney prep for case

Interview:
Granted

Denied

Additional Notes:
__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

31
 N-400 Application for Naturalization Checklist

Client Name: ________________________________

Phone Number: ________________________________
Attorney: ________________________________
Assistant: ________________________________

Date

G-28

Application

Required Documents:
1. Copy of Permanent
Resident Card (front
& back)

2. Birth Certificate

5. Criminal History Record

6. Money Orders

a. $595 for Application

b. $80 for Biometrics

5. Two passport style photographs

Cover Letter / Application /

Supporting Documentation Filed

Copy to File

Fingerprints

Interview Date

Notice sent to Client

32
Client prep before interview

Balance $ check ____________ __________________

Attorney prep for case

Interview:
Granted

Denied

Oath Ceremony: ________________________________________________

Copy of Certificate: ________________________________________________

Additional Notes:
__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

33
 Michelle L. Saenz-Rodriguez
g

THERE ARE FOUR FAMILY BASED CLASSIFICATIONS

2nd preference:
1st preference: Spouses/minor
Unmarried children-LPR’s
sons/daughters 2B:unmarried
USC’s children<21

3rd 4th preference:

preference: Brothers and
Married Sisters of USC’s
children-
USC’s

1
€ Spouses of USC’s

€ Unmarried children under 21 of USC’s

€ Parents of USC’s

* Are not part of the world preference system-there is

always a visa available!

Priority dates are

assigned to each
application based
on the date that
the application
was received by
the USCIS

2
Published once a month by the
Department of State- usually
available around the 10th of each
month for the upcoming month.

3
 Filing Fee $355

I-130 adjudication issues:

Petitioner’s
Status

Beneficiary’s Age

Beneficiary’s
fi i ’
Marital Status

Relationship
between Pet/Ben

4
1. Must be Citizen of the US
2. Legal Permanent Resident-LPR
Resident LPR

Can submit :

US birth certificate
US Passport
Naturalization Certificate
LPR Card
SEE 8 CFR 204.1

€ The age of the beneficiary affects the classification of

approval

ƒ Under 21/unmarried -- “child”

ƒ 21 or older or married— “son or daughter”

5
Critical factor in adjudicating these cases-If USC can
affect classification (preference) of approval

If LPR-makes the difference between approval and

denial

Marital Status Result

Unmarried<21 Immediate Relative

Unmarried>21 1st Preference

Married any age 3rd Preference

6
Marital Status Result

Unmarried<21 2a Family Preference

Unmarried>21 2b Family Preference

Married any age Not eligible

Must prove USC-Spouse

the LPR-Spouse
relationship Parent
Child
between Child
petitioner and Unmarried
Son or
beneficiary is Son or
Daughter
a qualifying Daughter
relationship Brother/Sister

7
Children- Parents-

CSPA Natural

Step children Adopted

Illegitimate
Ill iti t
Step parent
children

Adopted Citizenship
children Act 2000

Filing Fee $1010

8
‰ Immigrant Visa Immediately Available
‰ You
Yo are the spo
spouse/child
se/child (deri
(derivative)
ati e) on the
principal’s application
‰ You entered legally into the United States and are an
IR
‰ You entered legally and have maintained legal status
‰ You qualify under 245(i)
‰ You are be admissible under section 212(a) of the
INA

€ Approval Notice € Money Order payable

€ Birth
Bi h certificate
ifi to “DHS”
DHS for $1010
€ Proof of qualifying € If 245(i) eligible
relationship money order payable
to “DHS” for $1000-
€ Medical examination
penalty fee
€ Evidence of legal
€ If Petition filed after
y/ I-94
entry/ 94
/ / 8
1/14/98-proof f off
€ Photos-passport style
physical presence on
€ Biometrics December 21,2002
Remember all foreign docs must Be very careful with unlawful
be translated presence issues

9
€ I-765 Employment € I-131 Application for
Authorization Travel Document
Document

Not everyone will qualify for

No fee if filed with I-485 Travel Document

Required with every application for adjustment under the family

based categories

Sponsor must meet the poverty

guidelines established by USCIS-
change slightly every year -
Published as the I-864P on the
USCIS website www.uscis.gov

10
Proof of Income Tax Proof of
employment returns 1-3 yrs Sponsor’s status

• Pay stubs • W-2’s must be • LPR Card

• Letter of attached • US Birth Cert.
employment
p y • Natz. Cert.

11
€ Issuance
Iss ance
of Notice to Appear (NTA)
(NTA)- removal
remo al
proceedings-

Filing Fee $545

12
If you are granted resident status prior to your 2 year
anniversary of marriage, you are given CRS- Conditional
Resident Status

Your LPR Card will have an expiration date-

Must file to remove the conditions 90 days prior to the

expiration date of lose your status as LPR.

Must file joint petition w/spouse-I-751*-only revised 08/25/08

version will be accepted

The sponsor is discharged from liability when one of

the following occurs-

1. The immigrant becomes a USC

2. The immigrant has been credited with 40
qualifying quarters of work
3
3. The immigrant departs the US permanently
4. The immigrant dies

Divorce does NOT discharge the sponsor!!!!

13
You can file a waiver if you show one of the following:

Good Faith
Marriage-
spouse
dead

Extreme
Hardship

Good Faith
Good Faith
Marriage-
Marriage-
battered
divorce
spouse

Basically same as good faith marriage

Affidavits
from at
Birth least two
certificates people
of children who know
born to the you as a
Joint marriage couple-
Assets photo
scrapbook!

14
Filing Fee $675

15
‰ Must be over the age of 18
‰ LPR for 5 years
ears
‰ LPR for 3 years if married to and living with a USC
for 3 years-you must have adjusted through that USC
‰ You served in the US Armed Forces during a period
of recognized hostilities

16
€New Naturalization Exam
being implemented
€Broad questions-
questions- extensive
vocabulary-
vocabularyy-p
practice test on
USCIS website

Arrest report

GMC
Final
disposition

Proof of LPR
Status 3 yr applicants-
p /
Passport/LPR
proof of
Card
marriage

2 photos/$675

17
 Criminal
Offenses-
Deportable AF
Acts-fraud,
etc

Old
Offenses-
No waiver
exists

Detention/Removal

9 Always send with confirmation delivery-either

priority mail or certified mail return receipt
requested

9 Keep a complete copy of everything that was mailed

including money orders

9 Never send
N d originals
i i l unless
l required
q i d by
b
regulation(almost never)

9 Make sure all applications are signed and dated

18
19
 TAB 03
Fundamentals of Business-Based Immigration
 The University of Texas School of Law

Presented:
2008 Immigration Law Conference

October 23-24, 2008

San Antonio, Texas

Fundamentals of Business Immigration

Harry Gee, Jr.

and
Dhiraj Nireshwallia

Continuing Legal Education • 512-475-6700 • www.utcle.org

 UNIVERSITY OF TEXAS IMMIGRATION LAW CONFERENCE
San Antonio, Texas
October 2008

Prepared by Harry Gee, Jr. and

by Dhiraj Nireshwallia

FUNDAMENTALS OF BUSINESS IMMIGRATION

I. Overview – While it is imperative that an attorney who intends to practice business

immigration law become knowledgeable of the various immigrant and nonimmigrant
classifications to advise their clients competently, it is just as important to educate the
clients of their roles and responsibilities and possible implications for failure to comply
with the laws and regulations.

A. Employer – Importance of Truthfulness

1. Duties and responsibilities

a. Having a bona fide job1

b. Properly and timely posting2

c. Payment of prevailing wages3

d. Notification of USCIS upon termination4

2. Penalties and sanctions

a. Fines – WesternGeco5 paid $19.6 million fraud fine for

“knowingly submitting fraudulent visa applications” for foreign
workers assigned to vessels operating in the Gulf of Mexico. The
company ultimately acknowledged it filed fraudulent applications
for US visas and made fraudulent statements to US consular
officials regarding the nature and destination of its foreign
workers.6

b. Prohibition from filing petitions7

1
20 C.F.R. §656.17(l).
2
20 C.F.R. §656.10(d).
3
20 C.F.R. §656.10(c)(1).
4
8 C.F.R. §214.2(h)(11)(i)(A).
5
US Department of State press release dated June 16, 2006 available at
http://www.state.gov/m/ds/rls/67985.htm, last visited October 14, 2008.
6
Id.
7
20 C.F.R. §655.810.

1
 B. Alien Employees – Importance of educating workers about the procedures and
possible legal issues when they need to be articulated and when the attorney is
unavailable for counsel and assistance.

1. Application at US consulate

2. Application for admission and inspection at airport

3. Maintenance of status

a. Change of status8

1) Visa waiver restriction on extension of stay and change

of status9

2) Discretionary reinstatement of status10

a) Out of status implications

1. Cancellation of visa by law11

2. Requirement of new nonimmigrant visa to

return to the US

c) Immigration through adjustment

1) Eligibility for adjustment if inspected and

admitted or paroled into the United States
and eligible for permanent residence with
visa numbers being available at the
discretion of the Attorney General.12

2) Adjustment if physically in the United

States on December 21, 2000 and

8
8 C.F.R. §248 & INA §248.
9
Waiver for persons from certain countries applying as B-1/B-2 for a period not in excess of 90 days with
nonrefundable ticket (at present Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France,
Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, Netherlands, New Zealand,
Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the U.K. It does not
apply to British overseas citizens, British dependent territories’ citizens, or citizens of British Commonwealth
countries). 8 C.F.R. §§212.1(i), 217.2.
10
8 C.F.R. §214(f)(7)(iii).
11
Immigration and Nationality Act §§222(g)(1) -- In the case of an alien who has been admitted on the
basis of a nonimmigrant visa and remained in the United States beyond the period of stay authorized by the
Attorney General, such visa shall be void beginning after the conclusion of such period of stay.
12
INA §245.

2
 approvable petition filed on or before April
30, 2001 upon payment of a penalty of
$1,000.00.13

3) Adjustment application after lawful

admission who may have failed to maintain
continuously lawful status, engaged in
unauthorized employment or otherwise
violated terms for an aggregate period not
exceeding 180 days.14

4. Unlawful presence – Definition is different from being out of status

and specifically different for nonimmigrants in the United States for
duration of status, frequently students, or without Departure Records, such
as Canadians. A denial of an application may be required before the
unlawful presence begins.15

a. If an alien is in unlawful presence for more than 180 days

consecutively, upon departure from the country the alien will be
barred for three years.16

b. If an alien remains in unlawful presence for more than one year,

upon departure from the country the alien will be barred from
getting a visa for ten years.17

c. Waivers are available.18

d. Unlawful presence before age 18 cannot be accrued.19

5. Difference between visa and Departure Record

a. Country reciprocity

b. Passport expiration

c. Age out

C. Dual Representation – It is wise to explain to the employer and the employee

your role as the attorney and whom you will be representing so that the other
party may make arrangements to retain appropriate legal counsel.
13
INA §245(i).
14
INA §245(k).
15
INA §212(a)(9)(B)(ii).
16
INA §212(a)(9)(B)(i)(I).
17
INA §212(a)(9)(B)(ii(II).
18
INA §212(a)(9)(B)(V).
19
INA §212(a)(9)(B)(iii)(I).

3
 D. Goals and Objectives – A comprehensive understanding of your client’s goals
and objectives is imperative to be successful. Failure to ascertain the client’s
goals and aspirations could result in the severance of the relationship even though
you ultimately obtained approval of the applications filed.

1. Employment continuity – This is frequently the most important

consideration on the part of the employer. If you cannot maintain the
continuity of employment of their key employees, you will likely find the
employer taking the legal work to other legal counsel.

2. Minimizing employer involvement – Establishing procedures to avoid

provision of duplication of information from employer is prudent.
However, the employer must understand that their provision of the job
duties and responsibilities is a necessary prerequisite on each case.

3. Minimizing issues at consulate or at the border – While it is unlikely

that you will be able to completely avoid these issues, through the
education they should be minimized. Also, the information given to the
government officials by your educated client should provide a much better
fact situation in the ultimate resolution.

4. Employment of spouse – Frequently, a major consideration as to

whether an alien will remain in the United States or will be taking an
assignment abroad is the ability of the spouse to be engaged in
employment.

5. Schooling and education of children – This is most important in

determining the dates of moves and transfers, as they frequently will
coincide with the children’s educational needs.

6. Speed of attainment of immigrant visa – This is particularly

important to the alien employees.

a. Elevation to EB-1 or EB-2

b. Cross chargeability – If the spouse is a citizen of a different

country from the principal, there is the possibility that the spouse’s
country’s visa numbers will be more readily available and upon
utilization of cross chargeability, the adjustment can be completed
expeditiously.20

II. Nonimmigrant Visa Classifications21 –

20
INA §202(b).
21
INA §101(a).

4
 A. Nonimmigrant business visa category

1. B-1 – an alien (other than one coming for the purpose of study or of
performing skilled or unskilled labor or as a representative of foreign
press, radio, film, or other foreign information media coming to engage in
such vocation) having a residence in a foreign country which he has no
intention of abandoning and who is visiting the United States temporarily
for business or temporarily for pleasure22

When your client wishes to come to the US expediently for business

reasons set forth in law and regulations, this is the most expeditious
method as it does not require a petition and approval of the USCIS. It is a
direct application to US consulate. Generally, the B-1 may not be
employed in the US.

a. Visa Waiver23

b. ESTA – Beginning in January 2009 VW alien must register 72

hours in advance before being allowed to board the plane.24

c. Exceptions to the rule

1) Domestic worker25
2) OCS worker26
3) Professional in lieu of H-1B27

B. Employment Authorized Nonimmigrant Visa Categories

22
INA §101(a)(15)(B), 22 C.F.R. §41.31(a) The term pleasure, as used in INA 101(a)(15)(B), refers to
legitimate activities of a recreational character, including tourism, amusement, visits with friends or
relatives, rest, medical treatment, and activities of a fraternal, social, or service nature.
23
Id at 9.
24
8 C.F.R. part 217 Interim final rule Federal Register / Vol. 73, No. 111 / Monday, June 9, 2008 / Rules
and Regulations (pp. 32440), available at
http://www.cbp.gov/linkhandler/cgov/travel/id_visa/esta/visa_waiver_changes.ctt/visa_waiver_changes.pdf
25
22 C.F.R. §41.31(b) The term "business," as used in INA 101(a)(15)(B), refers to conventions,
conferences, consultations and other legitimate activities of a commercial or professional nature. It does not
include local employment or labor for hire. For the purposes of this section building or construction work,
whether on-site or in plant, shall be deemed to constitute purely local employment or labor for hire;
provided that the supervision or training of others engaged in building or construction work (but not the
actual performance of any such building or construction work) shall not be deemed to constitute purely
local employment or labor for hire if the alien is otherwise qualified as a B- 1 nonimmigrant. An alien
seeking to enter as a nonimmigrant for employment or labor pursuant to a contract or other prearrangement
is required to qualify under the provisions of §41.53. An alien of distinguished merit and ability seeking to
enter the United States temporarily with the idea of performing temporary services of an exceptional nature
requiring such merit and ability, but having no contract or other prearranged employment, may be classified
as a nonimmigrant temporary visitor for business.
26
33 C.F.R. §141, 43 U.S.C 1356.
27
9 FAM 41.31 note N 11.

5
 1. H-1B – An alien who is entitled to enter the United States under and in
pursuance of the provisions of an agreement listed in section 214(g)(8)(A),
who is engaged in a specialty occupation described in section 214(i)(3),
and with respect to whom the Secretary of Labor determines and certified
to the Secretary of Homeland Security and the Secretary of State that the
intending employer has filed with the Secretary of Labor an attestation
under section 212(t)(1).28

a. Limitations

1) Annual cap of 65,000 H-1B visas for bachelors or

equivalent.29

2) Annual cap of 20,000 for advanced degrees obtained in

US.30

3) Cap exemption for educational or research institutes.31

b. Filing procedures – For Fiscal Year 2009 USCIS considered for

the lottery selection all applications received by April 5
minimizing delivery and receipt issues.

c. Employer responsibilities

1) Filing Labor Condition Application (LCA) Form ETA

9035 online including.32

2) Payment of filing fee $320.00, fraud fee $500.00,

training fee $750.00 if less than 25 employees
and$1,500.00 if more.33

3) Must maintain public access file including copies of34

a) LCA

b) Prevailing wage documentation

28
INA §101(a)(15)(H)(i)(b1) -- 101(a)(15)(H)(i)(b1) who is entitled to enter the United States under and in
pursuance of the provisions of an agreement listed in section 214(g)(8)(A), who is engaged in a specialty
occupation described in section 214(i)(3), and with respect to whom the Secretary of Labor determines and
certifies to the Secretary of Homeland Security and the Secretary of State that the intending employer has
filed with the Secretary of Labor an attestation under section 212(t)(1).
29
INA §214(g)(1)(A).
30
INA §214(g)(5)(C).
31
INA §214(g)(5)(A)&(B).
32
INA §212(n)(1).
33
INA §212(c)(9)(B).
34
20 C.F.R. §656.10.

6
 c) Posting notice or electronic posting

4) Labor Condition application affirmation

a) Good faith effort of determining prevailing wage

and paying same or higher35

b) Hiring of foreign worker does not adversely

affect working conditions of other US workers36

c) No strike or lockout ongoing37

d) Posted LCA at 2 locations or copies provided all

H-1B employees38
e) If employer has 8 H-1 employees of 25 total
employees or 13 of 25-50 total employees or 15%
or more than 50 total employees39

d. Penalties40

1) Range of monetary fines up to $5,000.00

2) Debarment from employing foreign workers

3) Payment of variance from LCA prevailing wage

2. L-1 – an alien who is subject to section 214(c)(2), an alien who, within

three years preceding the time of his application for admission in to the
United States, has been employed continuously for one year by a firm or
corporation or other legal entity or an affiliate or subsidiary thereof and
who seeks to enter the United States temporarily in order to continue to
render his services to the same employer or a subsidiary or affiliate thereof
in a capacity that is managerial, executive, or involves specialized
knowledge, and the alien spouse and minor children of any such alien if
accompanying him or following to join him.41

35
Id at 3.
36
Id at 34.
37
Id.
38
Id.
39
Id.
40
Id at 7.
41
INA §101(a)(15)(L) -- subject to section 214(c)(2), an alien who, within 3 years preceding the time of his
application for admission into the United States, has been employed continuously for one year by a firm or
corporation or other legal entity or an affiliate or subsidiary thereof and who seeks to enter the United
States temporarily in order to continue to render his services to the same employer or a subsidiary or

7
 3. J-1 – an alien having a resident in a foreign country which he has no
intention of abandoning who is a bona fide student, scholar, trainee,
teacher, professor, research assistant, specialist, or leader in a field of
specialized knowledge or skill, or other person of similar description, who
is coming temporarily to the United States as a participant in a program
designated by the Director of the United States Information Agency, for
the purpose of teaching, instructing or lecturing, studying, observing,
conducting research, consulting, demonstrating special skills, or receiving
training and who, if he is coming to the United States to participate in a
program under which he will receive graduate medical education or
training, also meets the requirements of section 212(j) of this title, and the
alien spouse and minor children of any such alien if accompanying him or
following to join him.42

4. O-1 – an alien who has extraordinary ability in the sciences, arts,,

education, business, or athletics which has been demonstrated by sustained
national or international acclaim or, with regard to motion picture and
television productions a demonstrated record of extraordinary
achievement, and whose achievements have been recognized in the field
through extensive documentation, and seeks to enter the United States to
continue work in the area of extraordinary ability43; or

(ii)(I) seeks to enter the United States temporarily and solely for the
purpose of accompanying and assisting in the artistic or athletic
performance by an alien who is admitted under clause (i) for a specific
event or events,

(II) is an integral part of such actual performance,

(III)(a) has critical skills and experience with such alien which are not of a
general nature and which cannot be performed by other individuals, or

(b) in the case of a motion picture or television production, has skills and
experience with such alien which are not of a general nature and which are

affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge, and the alien
spouse and minor children of any such alien if accompanying him or following to join him;
42
INA §101(a)(15)(J) -- an alien having a residence in a foreign country which he has no intention of
abandoning who is a bona fide student, scholar, trainee, teacher, professor, research assistant, specialist, or
leader in a field of specialized knowledge or skill, or other person of similar description, who is coming
temporarily to the United States as a participant in a program designated by the Director of the United
States Information Agency, for the purpose of teaching, instructing or lecturing, studying, observing,
conducting research, consulting, demonstrating special skills, or receiving training and who, if he is coming
to the United States to participate in a program under which he will receive graduate medical education or
training, also meets the requirements of section 212(j), and the alien spouse and minor children of any such
alien if accompanying him or following to join him;
43
INA §101(a)(15)(O)(i).

8
 critical either based on a preexisting longstanding working relationship or,
with respect to the specific production, because significant production
(including pre- and post-production work) will take place both inside and
outside the United States and the continuing participating of the alien is
essential to the successful completion of the production, and

(IV) has a foreign residence which the alien has no intention or

abandoning; or

(iii) is the alien spouse or child of an alien described in clause (i) or (ii)
and is accompanying, or following to join, the alien.44

5. E-1/2/3 – an alien entitled to enter the United States under and in

pursuance of the provisions of a treaty of commerce and navigation
between the United States and the foreign state of which he is a national,
and the spouse and children of any such alien if accompanying or
following to join him:45

(i) solely to carry on substantial trade, including trade in services or trade

in technology, principally between the United States and the foreign state
of which he is a national;

(ii) solely to develop and direct the operations of an enterprise in which

he has invested, or of an enterprise in which he is actively in the process
or investing, a substantial amount of capital; or

(iii) solely to perform services in a specialty occupation in the United

States if the alien is a national of the Commonwealth of Australia and
with respect to whom the Secretary of Labor determines and certifies to
the Secretary of Homeland Security and the Secretary of State that the
intending employer has filed with the Secretary of Labor an attestation.46

6. TN47

a. New regulation authorizes TN’s to be granted for periods of up to

three years.48

44
Id., §§ (O)(i) to (O)(iii).
45
INA §101(a)(15)(E).
46
INA §212(t)(1).
47
Chapter 16 of NAFTA (signed Dec 8, 1993) relates to immigration issues. To comply with the
agreement, INA §214(e), 8 USC §1184(e), has been added to provide for the admission to the US of
Mexican and Canadian citizens who are coming to engage in professional activities as defined by the
NAFTA. TN status is for Canadian and Mexican persons engaged in activities at a professional level. A TN
visa is similar to an H1 visa but is subject to INA §214(b) and applicants must prove their intent not to
immigrate.
48
Federal Register / Vol. 73, No. 201 / Thursday, October 16, 2008 / Rules and Regulations at pp.61332

9
 b. While the general rule is that the alien beneficiary must be
degreed, the exceptions are for business consultants and scientific
technicians. Remember that the scientific technician must be
working under the guidance of a professional.

c. Mexican TN’s must apply at the US consulate.

d. Canadian TN’s can apply at the border.

III. Immigrant Visa Classifications49

A. Overview – While the establishment of eligibility for the employment based

classification through a labor certification or demonstration of exemption
therefrom is a primary concern, another most important factor would be
consideration of annual and country quotas and there implications on the length
of time involved.

1. The worldwide quota for EB-1/2/3 are essentially 140,000 per year but
to maximize the utilization of the numbers there is a complicated
formula by which unused numbers in one classification may be passed
on to other classifications.50

2. There is a worldwide diversity immigrant allocation of 55,000 per

year, which is known as the visa lottery.51

3. The per country limitation is 7% of the total number, which runs to

approximately 24,000 per year.52

4. Determination of consular processing versus adjustment of status.

B. EB-1 Priority Workers53

1. Aliens with Extraordinary Ability54

a. Fields of science, arts, education, business or athletics

b. Demonstrated by sustained national or international acclaim

49
INA §203(b).
50
INA §201(d)(1).
51
INA §201(e).
52
INA §202A, 8 U.S.C §1152(a).
53
INA § 203(b).
54
INA § 203(b)(1)(A).

10
 c. Achievements recognized by extensive documentation

d. Will work in area of extraordinary ability

e. Will substantially benefit professionally the U.S.

2. Outstanding Professors and Researchers55

a. Internationally recognized in area of academia

b. Three years experience in teaching or research

c. Joining tenure track position with university

d. Private employer or university for research

3. Multinational Executives and Managers56

a. Worked at least one year abroad as executive or manager

b. For parent, subsidiary or affiliate

c. Assuming executive or managerial position in U.S.

C. EB-2 – Members of profession holding advanced degrees or aliens of

exceptional ability57

1. Advanced degrees or equivalent with exceptional ability in sciences,

arts or business58

a. Will substantially benefit professionally national economy,

cultural or educational interests or welfare of U.S.

b. Services are sought by employer

2. If national interest, then employer not required. Alien can self-

petition59

D. EB-3 – Skilled Workers, Professionals and Other Workers60

55
INA § 203(b)(1)(B).
56
INA § 203 (b)(1)(C).
57
INA § 203(b)(2).
58
INA § 203 (b)(2)(A).
59
INA § 203(b)(2)(B).
60
INA § 203(b)(3)(A).

11
 1. Skilled workers with at least 2 years experience or training and
qualified workers not available in U.S.61

2. Professionals with baccalaureate degrees and are members of

profession.62

3. Other qualified immigrants for which qualified workers are not

available in U.S.63

E. EB-5 – Employment Creation64

1. Alien has or is actually engaged in the process of investing $1,000.000

or $500,000 in a rural or economically deprived area

2. Will benefit U.S. economy

3. Will provide employment for 10 U.S. workers not including alien’s

spouse, sons or daughters

61
INA § 203(b)(3)(A)(i).
62
INA § 203(b)(3)(A)(ii).
63
INA § 203 (b)(3)(A)(iii).
64
INA § 203(b)(5)(A).

12
 1. Annual and Country Quotas – State Department Visa Bulletin

IV. Strategic Considerations

A. Legal Issues

1. Is the record replete with information and evidence to win appeal?

2. Can an immigration officer rescind approved I-140 petition during I-485

processing?

3. Can you qualify for nonimmigrant visa classification while seeking to

ascertain eligibility to immigrate?

4. Is the consular determination of the applicability of a two-year foreign

residency requirement absolutely controlling?

5. How can cross chargeability be of benefit to immigrants?

a. Amount of money invested to be substantial. In the case of Walsh and

Pollard, 20 I&N Dec. 60 (BIA 1989) interim Decision (BIA) 3111 (BIA
1988), 156 legacy Immigration Service ruled that the amount to be
substantial is dependent upon the nature of the business and because this
was professional services of mobile design, an investment of less than
$25,000 was considered to be substantial.

b. Investment may not be solely for purpose of creating a job opportunity

for alien and spouse to pass the marginality test

c. E-3 application procedure is directly at US consulate

1) Maximum of 10,500 visas per year

2) Maximum validity of 2 years but renewable indefinitely

3) Spouse and children receive E-2 and spouse may obtain work
authorization

13
 6. Can a nonimmigrant who is porting travel out of the country if he has a
valid visa from his previous employer? Yes, check State Department
Advisory.

7. Can ICE arrest your client during or after I-485 interview for failure to
register for NSEERS?

PRACTICE POINTER – Government official will likely need a

Memorandum of Law in order to approve an E-2 for a minimal investment. I
recommend to my clients that they invest a minimal of $50,000. However, we
have found that the more US employees hired by the company, the more
likely the E-2 application is to be approved.

9. Does every misrepresentation or alleged fraud require the denial of a

nonimmigrant visa application? No, a misrepresentation has to be
material before it constitutes a bar.

B. Pragmatic Issues

1. How can you keep a nonimmigrant legally working while seeking

resolution to possible issues in various nonimmigrant classifications?

a. Erbas Decision
b. 8 CFR 274(a) – 240-day employment authorization
immediately upon filing
c. Receipt upon filing

2. Can you be assured that consular offices will live up to their word?

3. Will you be able to participate in the nonimmigrant visa processing and

if not, what role or function does an attorney serve at the consular post?

a. Beware of the accuracy of the consulate notation that the 2-year

foreign residency requirement is or is not applicable to the alien
beneficiary. We have found instances in which the consular
official stated that the alien was subject to a 2-year foreign
residency when in fact, he was not. Also, we found instances
where the consular official said the alien was not subject to the 2-
year foreign residency when in fact, he was. The practitioner has a
much more difficult time in the latter circumstance because the
attorney’s advice would seem to take away a possible benefit
granted by the consular determination. However, when dealing
with the immigration officials your independent analysis could be
very significant and important to your client.

14
b. PRACTICE POINTER – Ascertain if your J-1 client is or is not
subject to a 2-year foreign residency, as it can be restricted in their
attainment of H-1 or permanent resident status.

c. It is permissible to change to nonimmigrant categories other than

H without complying with a 2-year foreign residency but if
permanent residency is the ultimate objective a 2-year foreign
residency requirement becomes applicable.

d. Waivers of the 2-year foreign residency requirement can be

obtained for one of the following reasons:

1) Application and DOS approval of interested US

governmental agency

2) Persecution upon return to home country

3) No objection from home country

4) Demonstration of extreme hardship to USC

15
 Last
Last Visa
Visaissuing
issuing
First
First&&middle
middlenames name location Sex Birth
names name location Sex Birthdate
date(ddmmyyyy
(ddmmyyyy)
)
(ddmmyyyy) Control
Controlnumber
number

Passport
Passportnumber
number Visa
Visa
Type/Class
Type/Class

Nationality
Nationality

Number Expiration
Numberofofentries
entries Expiration
permitted Notes date
permitted Notessection
section Visa
Visaissue
issuedate
date(ddmmyyyy
(ddmmyyyy)
)
(ddmmyyyy) date
(ddmmyyyy)
ddmmyyyy
(ddmmyyyy) )

Visa
Visa
Number
Number

http://www.poeff.de/Deutsch/Zukunft/Visa-P.jpg
China Reciprocity Schedule Page 1 of 9

China Reciprocity Schedule

Select A Country

Jump to Country Documents

Visa Classification Fee Number of Applications Validity Period

A-1 None Multiple [A] 36 Months [A]
A-2 None Multiple [A] 36 Months [B]
A-3 [1] None Multiple 12 Months
B-1 None Multiple 12 Months
B-2 None Multiple 12 Months
B-1/B-2 None Multiple 12 Months
C-1 None Two 6 Months [B]
C-1/D N/A N/A N/A
C-2 None Multiple 6 Months [B]
C-3 None Multiple [C] 6 Months [B]
D None Multiple 24 Months
E-1 [2] No Treaty N/A N/A
E-2 [2] No Treaty N/A N/A
F-1 None Multiple 12 Months
F-2 None Multiple 12 Months
G-1 None Multiple 36 Months [B] [D]
G-2 None Multiple 36 Months [B]
G-3 None Multiple 36 Months [B] [C] [D]
G-4 None Multiple 36 Months [D]
G-5 [1] None Multiple 6 Months
H-1B None Two 3 Months [3]
H-1C None Two 3 Months [3]
H-2A None Two 3 Months [3]
H-2B None Two 3 Months [3]
H-2R None Two 3 Months [3]
H-3 None Two 3 Months [3]
H-4 None One 3 Months [3]
I None One 3 Months
J-1 [4] None Multiple 12 Months
J-2 [4] None Multiple 12 Months
K-1 None One 6 Months
K-2 None One 6 Months
K-3 None Multiple 24 Months
K-4 None Multiple 24 Months
L-1 $120.00 [E] Multiple [E] 24 Months [3] [E]
L-2 $120.00 [E] Multiple [E] 24 Months [3] [E]

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China Reciprocity Schedule Page 2 of 9

M-1 None Multiple 12 Months

M-2 None Multiple 12 Months
N-8 None Two 6 Months
N-9 None Two 6 Months
NATO 1-7 N/A N/A N/A
O-1 None One 3 Months [3]
O-2 None One 3 Months [3]
O-3 None One 3 Months [3]
P-1 None One 3 Months [3]
P-2 None One 3 Months [3]
P-3 None One 3 Months [3]
P-4 None One 3 Months [3]
Q-1 [6] None One 3 Months [3]
R-1 None One 3 Months
R-2 None One 3 Months
S-5 [7] None One 1 Month
S-6 [7] None One 1 Month
S-7 [7] None One 1 Month
T-1 [9] N/A N/A N/A
T-2 None One 6 Months
T-3 None One 6 Months
T-4 None One 6 Months
T-5 None One 6 Months
TD [5] N/A N/A N/A
V-1 None Multiple 120 Months
V-2 None Multiple 120 Months [8]
V-3 None Multiple 120 Months [8]

Documents
Most of the documents listed below can be obtained from one of China's Notarial Offices (Gong Zheng Chu).
All Chinese documentation to be used abroad is processed through the notary offices and issued in the form
of notarial certificates. Notarial offices are located in all major Chinese cities and in rural county seats. These
offices are part of the Ministry of Justice structure, but are separate from the people's court system.

Notaries in China do not perform the same functions as their American counterparts. Chinese notaries affix
their signatures and office seal to certificates that attest to the probity of claims made by the applicants. By
regulation, notaries are empowered to issue certificates only after they conclude that the applicant's claims
are true. Notarial certificates of birth, death, marriage, divorce, no criminal record and pre-1981 adoptions are,
at best, secondary evidence of the events they purport to document. Although these certificates are
secondary evidence, they are used because primary evidence is not standardized, is easily forged, and
difficult to evaluate. Notarial certificates are easier to interpret than primary evidence and theoretically
represent an expert judgment on the part of the notarial official as to the facts documented.

The certificates can be based upon primary evidence, secondary evidence, testimony of the applicant or other
parties, or investigation by the notary. For most notarial certificates of birth or adoption, the primary underlying
documentation is the household register (HHR) which appears to be extremely susceptible to fraud and
manipulation, especially if the holder of the HHR lives outside of a major metropolitan area. Notarial
certificates rarely cite the basis for their issuance.*

Thus a certificate in itself may not be adequate evidence of the facts claimed, and is best used in conjunction

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Visa Bulletin for November 2008 Page 1 of 5

Visa Bulletin

Number 2
Volume IX
Washington, D.C.

VISA BULLETIN FOR NOVEMBER 2008

A. STATUTORY NUMBERS

1. This bulletin summarizes the availability of immigrant numbers during November. Consular officers are
required to report to the Department of State documentarily qualified applicants for numerically limited visas;
the Bureau of Citizenship and Immigration Services in the Department of Homeland Security reports
applicants for adjustment of status. Allocations were made, to the extent possible under the numerical
limitations, for the demand received by October 8th in the chronological order of the reported priority dates. If
the demand could not be satisfied within the statutory or regulatory limits, the category or foreign state in
which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category
is the priority date of the first applicant who could not be reached within the numerical limits. Only applicants
who have a priority date earlier than the cut-off date may be allotted a number. Immediately that it becomes
necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for
numbers will be honored only if the priority date falls within the new cut-off date.

2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored
preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at
least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the
total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area
limit is set at 2%, or 7,320

3. Section 203 of the INA prescribes preference classes for allotment of immigrant visas as follows:

FAMILY-SPONSORED PREFERENCES

First: Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth
preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent
Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds
226,000, and any unused first preference numbers:

A. Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from
the per-country limit;

B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference
limitation.

Third: Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second
preferences.

Fourth: Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three
preferences.

EMPLOYMENT-BASED PREFERENCES

First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not
required for fourth and fifth preferences.

Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6%
of the worldwide employment-based preference
level, plus any numbers not required by first preference.

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Visa Bulletin for November 2008 Page 2 of 5

Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers
not required by first and second preferences, not more than 10,000 of which to "Other Workers".

Fourth: Certain Special Immigrants: 7.1% of the worldwide level.

Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors
in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec.
610 of P.L. 102-395.

4. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to
eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides
that spouses and children of preference immigrants are entitled to the same status, and the same order of
consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202
(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country
limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-
mainland born, INDIA, MEXICO, and PHILIPPINES.

5. On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see
paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means
unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority
date is earlier than the cut-off date listed below.)

All Charge-
ability
CHINA-
Fam- Areas PHILIPP-
mainland INDIA MEXICO
ily Except INES
born
Those
Listed
1st 01MAY02 01MAY02 01MAY02 15SEP92 01MAY93

2A 08FEB04 08FEB04 08FEB04 15JUL01 08FEB04

2B 15JAN00 15JAN00 15JAN00 22APR92 15JUN97

3rd 01JUL00 01JUL00 01JUL00 15SEP92 08MAY91

4th 15NOV97 08JUN97 22JUL97 22JAN95 22MAR86

*NOTE: For November, 2A numbers EXEMPT from per-country limit are available to applicants from all
countries with priority dates earlier than 15JUL01. 2A numbers SUBJECT to per-country limit are available
to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 15JUL01 and earlier
than 08FEB04. (All 2A numbers provided for MEXICO are exempt from the per-country limit; there are no 2A
numbers for MEXICO subject to per-country limit.)

All
Charge-
ability CHINA-
PHILIP-
Areas mainland INDIA MEXICO
PINES
Except born
Those
Listed
Employ-
ment
-Based
1st C C C C C
2nd C 01JUN04 01JUN03 C C
3rd 01MAY05 01FEB02 01OCT01 01SEP02 01MAY05

Other 15JAN03 15JAN03 15JAN03 15JAN03 15JAN03

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Visa Bulletin for November 2008 Page 3 of 5

Workers
4th C C C C C
Certain
Religious U U U U U
Workers
5th C C C C C
Targeted
Employ-
ment
C C C C C
Areas/
Regional
Centers

The Department of State has available a recorded message with visa availability information which can be
heard at: (area code 202) 663-1541. This recording will be updated in the middle of each month with
information on cut-off dates for the following month.

Employment Third Preference Other Workers Category: Section 203(e) of the NACARA, as amended by
Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-
off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the
10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the
following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the
NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the
reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

B. DIVERSITY IMMIGRANT (DV) CATEGORY

Section 203(c) of the Immigration and Nationality Act provides a maximum of up to 55,000 immigrant visas
each fiscal year to permit immigration opportunities for persons from countries other than the principal
sources of current immigration to the United States. The Nicaraguan and Central American Relief Act
(NACARA) passed by Congress in November 1997 stipulates that beginning with DV-99, and for as long as
necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under
the NACARA program. This reduction has resulted in the DV-2009 annual limit being reduced to
50,000. DV visas are divided among six geographic regions. No one country can receive more than seven
percent of the available diversity visas in any one year.

For November, immigrant numbers in the DV category are available to qualified DV-2009 applicants
chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are
available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off
number:

All DV
Chargeability
Region Areas Except
Those Listed
Separately

Egypt 5,900
AFRICA 12,500 Ethiopia 6,300
Nigeria 6,000
ASIA 5,300
EUROPE 11,000
NORTH
AMERICA 3
(BAHAMAS)
OCEANIA 325

SOUTH 550
AMERICA, and

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Visa Bulletin for November 2008 Page 4 of 5

the CARIBBEAN

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which
the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2009
program ends as of September 30, 2009. DV visas may not be issued to DV-2009 applicants after that date.
Similarly, spouses and children accompanying or following to join DV-2009 principals are only entitled to
derivative DV status until September 30, 2009. DV visa availability through the very end of FY-2009 cannot
be taken for granted. Numbers could be exhausted prior to September 30.

C. ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS

WHICH WILL APPLY IN DECEMBER

For December, immigrant numbers in the DV category are available to qualified DV-2009 applicants
chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are
available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off
number:

All DV
Chargeability
Region Areas Except
Those Listed
Separately

Egypt 8,700
AFRICA 15,100 Ethiopia 7,900
Nigeria 6,700
ASIA 6,850
EUROPE 12,900
NORTH
AMERICA 4
(BAHAMAS)
OCEANIA 440
SOUTH
AMERICA, and 750
the CARIBBEAN

D. EMPLOYMENT VISA AVAILABILITY

The level of demand being received from Citizenship and Immigration Services (CIS) Offices indicates that
they have a significant amount of cases with priority dates that are earlier than the established cut-offs. This
is likely to result in slow forward movement of the cut-off dates for most Employment categories during the
next few months. Sudden changes in the CIS demand patterns could result in fluctuations in the monthly cut-
off dates, and retrogressions cannot be ruled during FY-2009.

E. OBTAINING THE MONTHLY VISA BULLETIN

The Department of State's Bureau of Consular Affairs offers the monthly "Visa Bulletin" on the INTERNET'S
WORLDWIDE WEB. The INTERNET Web address to access the Bulletin is:

http://travel.state.gov

From the home page, select the VISA section which contains the Visa Bulletin.

To be placed on the Department of State’s E-mail subscription list for the “Visa Bulletin”, please send an E-
mail to the following E-mail address:

listserv@calist.state.gov

and in the message body type:

Subscribe Visa-Bulletin First name/Last name

http://travel.state.gov/visa/frvi/bulletin/bulletin_4371.html?css=print 10/16/2008
Visa Bulletin for November 2008 Page 5 of 5

(example: Subscribe Visa-Bulletin Sally Doe)

To be removed from the Department of State’s E-mail subscription list for the “Visa Bulletin”, send an e-mail
message to the following E-mail address:

listserv@calist.state.gov

and in the message body type: Signoff Visa-Bulletin

The Department of State also has available a recorded message with visa cut-off dates which can be heard
at: (area code 202) 663-1541. The recording is normally updated by the middle of each month with
information on cut-off dates for the following month.

Readers may submit questions regarding Visa Bulletin related items by E-mail at the following address:

VISABULLETIN@STATE.GOV

(This address cannot be used to subscribe to the Visa Bulletin.)

Department of State Publication 9514

CA/VO: October 8, 2008

http://travel.state.gov/visa/frvi/bulletin/bulletin_4371.html?css=print 10/16/2008
 Fundamentals of
Business Immigration

Overview

• IImperative
ti th t an attorneys
that tt b
become
knowledgeable of the various immigrant and
nonimmigrant classifications
• It is equally as important to educate clients of
their roles and responsibilities
p and ppossible
implications

www.HarryGee.com

1
 Employer

A Importance
A. I t off truthfulness
t thf l
1. Duties & responsibilities
a. Having a bona fide job
b. Properly and timely posting
c. Payment of prevailing wages
d. Notification of USCIS upon termination

www.HarryGee.com

Employer

2 Penalties & Sanctions

2.
a. Fines – WesternGeco: paid $19.6M fraud fine for
“knowingly” submitting fraudulent visa applications
b. Prohibition from filing petitions

www.HarryGee.com

2
 Alien Employees

B IImportance
B. t off educating
d ti workers
k about
b t the
th
procedures and possible legal issues
1. Application at US consulate
2. Application for admission and inspection at
airport

www.HarryGee.com

Alien Employees

3 Maintenance of status
3. stat s
a. Change of Status
1) Visa waiver restriction on extension of stay and change of
status
2) Discretionary reinstatement of status
a) Out of status implications
1
1. Cancellation of visa by law
2. Requirement of new nonimmigrant visa to return to
the US

www.HarryGee.com

3
 Alien Employees
b) Immigration through adjustment
1. Eligibility for adjustment if inspected and admitted or
paroled into the United States and eligible for
permanent residence with visa numbers being available
at the discretion of the Attorney General
2. Adjustment if physically in the United States on
December 21, 2000 and approvable petition filed on or
before April 30, 2001 upon payment of a penalty of
$1,000.00
3. Adjustment application after lawful admission who
may have failed to maintain continuously lawful status,
engaged in unauthorized employment or otherwise
violated terms for an aggregate period not exceeding
180 days

www.HarryGee.com

Alien Employees

4 Unlawful
4. Unla f l Presence
• Definition is different from being out of status and
specifically different for nonimmigrants in the United
States for duration of status, frequently students, or
without Departure Records, such as Canadians
• A denial of an application may be required before the
unlawful presence begins

www.HarryGee.com

4
 Alien Employees

4 Unlawful
4. Unla f l Presence
a. If an alien is in unlawful presence for more than 180
days consecutively, upon departure from the country
the alien will be barred for three years
b. If an alien remains in unlawful presence for more than
one year, upon departure from the country the alien
will be barred from getting a visa for ten years
c. Waivers are available
d. Unlawful presence before age 18 cannot be accrued

www.HarryGee.com

Alien Employees

5 Difference between
5. bet een visa
isa and Departure
Depart re Record
a. Country reciprocity
b. Passport expiration
c. Age out

www.HarryGee.com

5
 Dual Representation

C It is
C. i wise
i tot explain
l i to
t the
th employer
l andd the
th
employee your role as the attorney and whom
you will be representing so that the other
party may make arrangements to retain
appropriate legal counsel

www.HarryGee.com

Goals & Objectives

D A comprehensive
D. h i understanding
d t di off your
client’s goals and objectives is imperative to
be successful. Failure to ascertain the client’s
goals and aspirations could result in the
severance of the relationship even though you
ultimately obtained approval of the
applications filed

www.HarryGee.com

6
 Goals & Objectives

1 Employment continuity - frequently the most

1.
important consideration on the part of the employer
2. Minimizing employer involvement - establishing
procedures to avoid provision of duplication of
information from employer
3. Minimizing issues at consulate or at the border
4 Employment
4. E l t off spouse - frequently,
f tl a major
j
consideration as to whether an alien will remain in
the United States or will be taking an assignment
abroad

www.HarryGee.com

Goals & Objectives

5 Schooling and education

5. ed cation of children - important
in determining the dates of moves and transfers
6. Speed of attainment of immigrant visa -
particularly important to the alien employees
a. Elevation to EB-1 or EB-2
b Cross chargeability
b.

www.HarryGee.com

7
 TAB 04
Naturalization and Citizenship Issues
NATURALIZATION AND CITIZENSHIP ISSUES

Gary E. Endelman
Immigration Law Group
501 Westlake Park Blvd.
Houston, Texas 77079

Richard S. Fischer
The Law Offices of Richard S. Fischer
114 South Pecan Street
Nacogdoches, Texas 75961

THE UNIVERSITY OF TEXAS

SCHOOL OF LAW

32ND ANNUAL CONFERENCE ON

IMMIGRATION AND NATIONALITY LAW

October 22-24, 2008

San Antonio, Texas
 TABLE OF CONTENTS

Page

INTRODUCTION 1

COMMON PROBLEMS, SOLUTIONS AND ETHICS 1

I. Preparing the Application 1

II. Good Moral Character 3

III. English and Civics 6

IV. Some More Practice Pointers 7

CITIZENSHIP FOR CHILDREN 8

I. The Child Citizenship Act 8

II. Derivative Citizenship 12

III. Dual Citizenship 14

LITIGATION ISSUES AND STRATEGIES 16

A. Challenging the Wrongful Denial 16

B. The Statutory Delay Case 17

C. The Plain Old (Pre-Interview) Delay Case 18

D. Disputed Citizenship 19
Citizenship
Appendices

1. Form N-400, pp. 3-9

2. Complaint - Borunda (English/Civics)

3. Final Judgment (Naturalizing Mr. Borunda)

4. Complaint - Medina (Statutory Delay Case)

5. Complaint - Escalante (Disputed Citizenship)

6. Motion for Summary Judgment (Escalante)

i
 NATURALIZATION AND CITIZENSHIP ISSUES

Common Problems, Solutions and Ethics in

Naturalization Cases; Citizenship for Children;
Derivative Citizenship; Dual Citizenship; Litigation
Issues and Strategies

Gary E. Endelman
Immigration Law Group
501 Westlake Park Blvd.
Houston, Texas 77079

Richard S. Fischer
The Law Offices of Richard S. Fischer
114 South Pecan Street
Nacogdoches, Texas 75961

INTRODUCTION

There is no way we can cover all these topics in a brief paper

and a one-hour talk. In this paper and our accompanying remarks we
will therefore attempt to point out things we immigration lawyers
do wrong in these areas, bodies of law that we might not always
remember, and approaches to dealing with difficult cases.
Everything we say in this paper and in our remarks presumes that
immigration lawyers follow the three golden rules:

1) KNOW THE LAW - There is no substitute, no short-cut and

no excuse;

2) KNOW THE FACTS - Even if you have to extract them from an

unwilling client; and

3) DO NOT LIE - And do your best to make sure that your

client does not lie either.

COMMON PROBLEMS, SOLUTIONS AND ETHICS

IN NATURALIZATION CASES

I.

PREPARING THE APPLICATION

The Application for Naturalization, Form N-400, serves two

distinct purposes. First, and most obviously, it is the USCIS form
by which a lawful permanent resident initiates the process of

1
becoming a U.S. citizen. But second, and maybe more importantly,
it serves as a check list or “go/no-go” gauge for the lawyer to
decide whether the client should proceed to seek naturalization,
and if so, what obstacles or dangers might lie in the client’s
path.

The N–400 is loaded with dangerous questions. Appendix 1 is

the portion of that form containing those questions. A “yes” or
“no” to some of them can bring out the handcuffs and lead to
removal proceedings, while an inaccurate answer to others can cause
the N–400 to be denied. Specifically, you need to hammer your
client on Part 10, Section A, questions 1, 2 and 3 (re claiming to
be a citizen, voting and registering to vote), because a “yes” can
lead to removal. Pay particular attention to Part 10, Section D,
questions 15-21 (the criminal stuff). There are two things you
need to do about those questions before submitting your client’s
N–400. First, you need to be absolutely sure to make complete and
total disclosure. Second, with regard to any “yes” to those
questions, you need to understand for yourself how it is that the
affirmative answer will or will not produce a denial of the N–400
and/or lead to removal proceedings. The same goes for Part 10,
Section D, questions 22-28, and 30-32 (other good moral character
questions).

This is what you should be doing here: If while preparing an

N–400 you realize that your client obtained her LPR status
improperly (marriage fraud, phony labor certification, falsely
claimed to be single to immigrate through second preference, etc.),
you most likely need to tell her that you cannot submit the N–400
for her, and explore other possibilities to try to help her fix her
status. Second, if in preparing the N–400 you realize that your
client is at risk of removal proceedings with no remedy, you tell
him that and send him home. Third, if when preparing the N–400 you
realize that your client has removal exposure (say an old UCW
conviction), but is eligible for naturalization and has defenses in
removal proceedings, you need to make full lawyer disclosure, tell
your client what might happen and what you think the chances are,
and let your client choose whether to continue.

An underlying problem here is that all of us have a human

tendency to cover up things we have done of which we are
embarrassed. This author (Fischer) hates telling people that he
was cited for using the Fall Creek Bridge instead of a privy when
he was a beer-drinking undergraduate in 1975. He also doesn’t like
mentioning the theft arrest a couple of years later for which he
got deferred disposition, and his lawyer told him that it was not
on his record and he never had to mention it anywhere. However, if
Fischer is doing an N–400 he needs to come absolutely clean about
these things. The reason is not that either the PIP or the theft
charge could lead to removability; however, once he goes to the
interview and swears to the truth of the statements in the N–400,
his omission of these incidents from that application become “false

2
testimony under oath” for the purposes of determining whether he
has good moral character. If the interviewing officer decides that
he made those false statements not because of embarrassment, but
for the purpose of obtaining an immigration benefit
(naturalization), he has no GMC for the next five years. Remember,
the “false testimony for the purpose of obtaining any benefits
under this Act” that negates good moral character pursuant to §
101(f)(6) of the Act does not have to be material; it only has to
be false and given with the subjective intent to obtain immigration
benefits. See Gonzalez-Maldonado v. Gonzales, 487 F.3d 975, 977
(5th Cir. 2007).

II.

GOOD MORAL CHARACTER

An applicant for naturalization must, for the five years
preceding submission of the N–400 and continuing to the date of
swearing-in, have been and still be “a person of good moral
character, attached to the principles of the Constitution of the
United States, and well disposed to the good order and happiness of
the United States.” INA § 316(a)(3). Although we often refer to
this as the “good moral character” (GMC) requirement, we should not
forget that “good order and happiness” component.

The approach to determining good moral character is as

follows: First, look at INA § 101(f) sub-paragraphs 1 through 9,
and determine whether the client is statutorily precluded from
establishing GMC. If the answer is in the negative, then look at
the regulatory gloss on GMC, found at 8 C.F.R. § 316.10, which
actually purports to exclude as a matter of law from GMC certain
persons who are not excluded by § 101(f) of the Act. There is
fertile ground for litigation there, but that is for another
discussion. If we make it past those land mines, then look we to
the generally-accepted standard for GMC, which means character
(i.e. behavior) “that measures up to that of the average citizen of
the community in which the applicant resides,” and measure the
applicant’s behavior for the previous five years against this
standard. Remember that GMC does not mean “moral excellence,” and
it “is not destroyed by an ‘a single lapse,’” Matter of B-, 1 I. &
N. Dec. 611 (BIA 1943).

We will frequently disagree with Immigration over whether our

clients possess the required GMC. The following are cases that are
useful on our side of the argument:

Beilleke-Tolosa v. Ashcroft, 385 F.3d 708 (6th Cir. 2004)--

Adjustment case, but useful law about use of arrest reports and
similar documents. P. 709-710--IJ denies adjustment because he
believed allegations of sexual misconduct in police reports, even
though alien convicted of only simple assault and disorderly

3
conduct. P. 712--Sixth Circuit says IJ should not look at police
reports absent corroborating evidence, particularly when alien
denies the allegations. See also Matter of Thomas, 21 I. & N. Dec.
20 (BIA 1995) and Matter of Arreguin, 21 I. & N. Dec. 38 (BIA
1995).

Yaqub v. Gonzales, 2006 U.S. Dist. LEXIS 36727 (S.D. Ohio

2006)--great case. On § 310(c) de novo hearing, federal district
court grants naturalization to guy who had 2 DWI’s during statutory
period, because his positives outweighed his negatives. This
opinion is a textbook about how to build your positives to show
good moral character.

Angel v. Chertoff, 2007 U.S. Dist. LEXIS 78084 (S.D. Ill.

10/22/07)--Immigration denied N–400 because applicant was on felony
probation for trying to take $90,000.00 to Mexico in an ice chest.
Court disregards regulation saying people on probation cannot
naturalize, finds GMC, and orders applicant naturalized. Good
review of the general standards for GMC.

Plewa v. Immigration and Naturalization Service, 77 F. Supp.

2d 905 (N.D. Ill. 1999). Tremendous decision on good moral
character; deserves reading. Plaintiff had an arrest that she
failed to mention on the N–400. It arose out of a lingerie-
modeling incident. INS denied application because of “false
testimony” negating good moral character under § 101(f)(6).
Federal district court grants naturalization, after examining in
detail the law of misrepresentations and good moral character with
regard to naturalization proceedings, and concludes with the
following language: “In short, people like Plaintiff are the
backbone upon which this country was built: hard-working, decent
people who come to this country with the hope of a better life,
willing to contribute to society by rolling up their sleeves, build
a business, take care of those less fortunate, and learn a new
language and culture. Plaintiff will make a fine American citizen.
Would that everyone who is a natural born citizen by the mere
accident of birth be as upstanding as Plaintiff. . . . The Court
grants Plaintiff’s application for citizenship and welcomes her to
the great melting pot of these United States.”

Puciaty v. U.S. Department of Justice, 125 F. Supp. 2d 1035

(D. Hawaii 2000)--INS denied, then fought in court, plaintiff’s
naturalization application on the basis that plaintiff owed a civil
debt arising out of a default judgment. Court analyses debts and
good moral character and plaintiff wins.

Tan v. United States Department of Justice, Immigration and

Naturalization Service, 931 F. Supp. 725 (D. Hawaii 1996)--P. 727--
Philippine national immigrated as unmarried when he was secretly
married. P. 727--enlisted in U.S. Army in 1981. His military
service was distinguished, and he got numerous medals. He applied
for naturalization under INA § 329 (for people in active duty

4
military service during periods of hostilities). P. 727-28--INS
denied natz application because of lack of good moral character
because Tan gave false testimony for purpose of obtaining benefits
under INA. P. 728--court cites to INA § 310(c) and notes that
review is de novo. P. 728--question is whether Tan can meet one-
year regulatory good moral character requirement of 8 C.F.R.
329.2(d). P. 728--INS relied on conduct before statutory period to
deny him naturalization. P. 731--while events outside the time
period may be historically relevant to the good moral character
determination, these events cannot in and of themselves preclude a
finding of good moral character. "The court is bound by the
regulations and cannot use events substantially outside the time
period set forth in the regulation as the basis for denying
Sergeant Tan's application for naturalization." P. 731--a previous
finding that a person's testimony lacked credibility does not alone
justify the conclusion that false testimony has been given under
the meaning of INA § 101(f)(6). To reach that conclusion, INS must
go beyond suspect credibility and come up with "hard evidence" that
the petitioner was in fact lying for the purpose of obtaining
immigration benefits. P. 732--court refuses to continue to punish
petitioner for his actions in 1981 and 1983, finding that would be
"tantamount to eternal damnation." P. 732--here the court clearly
states that it is "examining the facts and law anew, as the court
must do in a de novo review . . . ."

Rodriguez-Gutierrez v. Immigration and Naturalization Service,

59 F.3d 504 (5th Cir. 1995)--Simon Azar-Farr won this one. P. 506-
-BIA found a guy to lack good moral character because he gave false
testimony at his deportation hearing. P. 507--the IJ and BIA had
decided that the man lacked good moral character because his
testimony at his deportation hearing lacked credibility. P. 507--
"A finding that testimony lacked credibility does not alone justify
the conclusion that false testimony has been given. False
testimony means knowingly giving false information with an intent
to deceive.” P. 507-08--"As a California district court stated, to
assume that 'a witness whose testimony is not accepted by the trier
of fact is a perjurer and not a person of good moral character . .
. is not only legally invalid, but is contrary to the basic sense
of fairness upon which our legal system is founded.' Acosta v.
Landon, 125 F. Supp. 434, 441 (S.D. Cal. 1954)."

Kungys v. United States, 45 U.S. 759, 779-780 (1988)--the INA

§ 101(f)(6) business that a person shall be deemed to lack good
moral character if he "has given false testimony for the purpose of
obtaining" an immigration benefit does not have any materiality
requirement. However, "testimony" is limited to oral statements
made under oath, and that section applies only to "those
misrepresentations made with the subjective intent of obtaining
immigration benefits." P. 781--and the government must prove that
intent.

Nemetz v. Immigration and Naturalization Service, 647 F.2d 432

5
(4th Cir. 1981)--homosexuality does not negate good moral character
where conduct is private, consensual and without harm to the
public. P. 435--even though Virginia criminalized petitioner's
conduct by its sodomy statute, court holds that whether person is
of good moral character for natz purposes is a question of federal
law and it is not appropriate to look to state law to make that
decision. P. 436--"only those acts harmful to the public will be
appropriate bars to a finding of good moral character . . . ."

Castiglia v. Immigration and Naturalization Service, 108 F.3d

1101 (9th Cir. 1997)--applicant had 1997 murder conviction. Court
rules that conviction for murder, an aggravated felony, is a
perpetual bar to GMC. [Note, however, that most aggravated felonies
committed before November 29, 1990 do not constitute perpetual bars
to establishing GMC. Read Matter of Reyes, 20 I. & N. Dec. 789
(1994)].

Matter of Guadarrama, 24 I. & N. Dec. 625 (BIA 09/23/2008)--

Applicant for cancellation of removal had falsely claimed to be a
U.S. citizen on Form I-9. PP. 626-27--In a nice reading of §
101(f) of the INA, BIA decides that such a false claim does not
foreclose a finding of good moral character. PP. 627--Nice and
brief review of GMC cases the BIA now looks to.

III.

ENGLISH AND CIVICS

I will keep this brief, because it is fairly straight-forward.

Your client may be exempt from the English requirement, given a
particularly simple test, or exempt from the English and civics
requirements altogether, based on age, how long he has been a
permanent resident, and/or disability. All of these exemptions are
set out in § 312 of the Act. Also remember that a person who
passed the English/civics test at the final stage of legalization
under § 245A of the Act is not required to do so again at her
naturalization interview, but is required only to speak English
sufficiently so that the interview can be conducted in that
language.

If you client is not exempt, here are the standards:

INA § 312(a)(1) reads (in pertinent part):

Provided, That [sic] the requirements of this paragraph

relating to ability to read and write shall be met if the
applicant can read or write simple words and phrases to
the end that a reasonable test of his literacy shall be
made and that no extraordinary or unreasonable conditions
shall be imposed upon the applicant . . . .

8 C.F.R. § 312.2(c)(2) [re scope of civics examination] reads:

6
 In choosing the subject matters, in phrasing questions
and in evaluating responses, due consideration should be
given to the applicant's education, background, age,
length of residence in the United States, opportunities
available and efforts made to acquire the requisite
knowledge . . . .

In re Petition of Blasko, 466 F.2d 1340, 1341 (3rd Cir. 1972)--

Hungarian national denied natz because not literate in English
entitled to appear before federal district court to demonstrate his
ability to write English. This case means exactly what it says -
if Immigration is not satisfied with your client’s English
abilities, and you exhaust your administrative remedy by doing the
administrative appeal on the N–336, you are entitled to de novo
review before a federal district judge. Attached as Appendix 2 is
a complaint seeking such relief. We won. See Appendix 3.
IV.
SOME MORE PRACTICE POINTERS

Selective Service Registration - Willful failure to register for

Selective Service does not negate GMC, but weighs heavily against
the applicant’s claim to be “well disposed to the good order and
happiness of the United States.” But Selective Service issues can
usually be dealt with. First, the obligation to register applies
only to males between their 18th and 26th birthdays. If your client
is a man and within that age range, register him. If he never
registered and he should have, but is over 31 years old, the last
moment of his failure to register was over five years ago, which
does not hurt him. If he is a man between 26 and 31 and failed to
register, find out why. It will almost never be a willful failure;
typically the guy either never knew about the Selective Service
registration requirement, or thought it did not apply to him
because he was not a U.S. citizen.

Unpaid Child Support - Willful failure to support one’s dependents,

just like willful failure to register for Selective Service, counts
against an applicant in the GMC calculation, but is not fatal in
and of itself. Usually, even if a person got behind in child
support, if they have worked out a payment plan and are paying on
schedule, the USCIS will be satisfied. Where there is no court-
ordered child support and your client has children with another
person who live with that other parent, and is supporting the
children with some sort of informal understanding with the other
parent, it is nice to bring in something signed by the other
parent, stating how your client is a good parent and pays all sorts
of money and buys things for the child(ren).

Unpaid Taxes - Immigration treats unpaid taxes very much like

unpaid child support. If your client got behind on her federal

7
income taxes, and now wants to naturalize, you need to have the
client work out a payment plan with the IRS, and bring to the
naturalization interview proof of that payment plan and prove that
your client is paying. That will usually solve the problem.
CITIZENSHIP FOR CHILDREN

I. The Child Citizenship Act

Effective as of February 27, 2001, the Child Citizenship Act

(“CCA”) amended Section 320 of the Immigration and Nationality Act
to grant derivative US citizenship to certain foreign-born
children, including adopted children of US citizens. Children who
benefit from Section 320 as modified by the CCA did not acquire US
citizenship at birth under INA Section 301 because their parents
did not spend enough time in the USA before the child was born to
satisfy transmission requirements. For children born abroad to one
US parent and one non-US citizen parent, it is no longer necessary,
as had been the case, for the non-US parent to become a naturalized
citizen. The following classes of children benefit from the CCA:

Orphans with a full and final foreign adoption or adoption

finalized after coming to USA.

Biological or legitimated children.

Certain children born out of wedlock to mother who

naturalizes.

Adopted children who satisfy the two-year physical and legal

custody requirement. A US parent must adopt the step-child
for that child to benefit from the CCA. Children who have
immigrated to the USA on an IR4 visa so that they might be
adopted do not become citizens until the adoption decree is
final. Also, at the time of the adoption they must be under
age 18.

The law is not retroactive so children 18 and above as of February

27, 2001 do not benefit. They must apply for naturalization per the
normal process that all adult permanent residents must satisfy. The
Fifth and Ninth Circuits have both held that the CCA does not apply
to children who were 18 or older on February 27, 2001. Nehme v.
INS, 252 F. 3d 415 (5th Cir. 2001); Hughes v. Ashcroft, 255 F. 3d
752 (9th Cir. 2001). The Board of Immigration Appeals has also
issued a precedent decision along these same lines. Matter of
Rodriguez-Tejedor, 23 I&N Dec. 153 (July 24, 2001).

Step-children DO NOT qualify as children under the CCA. Step-

children have never been considered as “children” for citizenship
purposes, though they are for visa purposes, and the CCA did not

8
alter or modify this traditional exclusion.
US embassies or consulates WILL NOT issue consular reports of birth
to children who acquire citizenship under the CCA; reports of birth
are issued only to children who acquire citizenship at birth and do
not have to immigrate to the USA as do CCA beneficiaries.

A child with permanent resident status who lives in another country

must come back to the USA with their green card in order to qualify
under CCA. The CCA only applies to children who can demonstrate
actual residence in the United States. It is not for children who
want to come here just to naturalize and then turn around and go
home again somewhere else. “Residence” in the USA is a term of art
for immigration purposes and is defined in INA Section 101(a)(33)
as “ the place of general abode . . . principal, actual dwelling
place in fact without regard to intent.” For this reason, in order
to satisfy the “residence” requirement of Section 320, the child
must prove to the Consular Officer who adjudicates the application
for the immigrant visa that the he/she really does have an actual,
current dwelling place in the USA. It is not enough for the citizen
parent to tell the Consul that they intend to reside there.

Children of US military or US Government civilian employees,

temporarily stationed abroad, will be considered to be “residing in
the USA” for purposes of Section 320 acquisition.
The CCA is pretty fast. Under the so-called “Buffalo Project”,
children who enter the USA on IR-3 (indicia of adoption abroad)
immigrant visas can expect to get their Certificates of Citizenship
within 45 days of entering the USA. This program is not currently
available to any other category of immigrants that may may have a
claim to citizenship under the CCA. This program does NOT apply to
natural children or IR-4s that may automatically derive upon
admission under Section 320.

The CCA authorizes automatic acquisition of citizenship and

protects adopted children against involuntary removal. The child
must be admitted to the USA as a lawful permanent resident. This
means that children who live abroad must enter as an immigrant to
take advantage of the law. The child does not have to apply for
such citizenship. There is no naturalization application that must
be approved. The day the child who benefits is admitted as an
immigrant, that child is a US citizen! As evidence of such
citizenship, the parent can file form N-600 (Application for
Certificate of Citizenship) and submit it to the local USCIS
office with jurisdiction over their place of residence. If you
want a Certificate of Citizenship for an adopted child, file Form
N-643. For children who have already immigrated to the USA, the
parents do not have to make second copies of any evidence, or
translate any documents, that should already be in the USCIS files.
The parent may also want to apply for a passport from the State
Department. Neither the passport nor the Certificate of Citizenship

9
create the citizenship but merely serve to document it. To apply
for a US passport, a child who derives citizenship under the CCA
must do the following: (1) present evidence of the qualifying
relationship to a US citizen parent such as a certified copy of the
foreign birth certificate if born abroad to an American, or, if
adopted, a certified copy of the final adoption decree; (2) child’s
foreign passport with the USCIS temporary green card I-551 stamp or
the child’s resident alien card (I-551); and (3) valid ID for the
parent.

If the child’s parents are divorced, evidence of legal custody must

be shown. If the child is an orphan, such evidence must be brought
forward. If the child was born out of wedlock, be prepared with
proof of legitimation. There are 3 established ways to prove up
legal custody: (1) biological child living with natural parents who
are presumed to have legal custody; (2) biological child residing
with one parent and other is deceased- living parent is presumed to
exercise legal custody; (3) biological child born out of wedlock
but legitimated and residing with natural parent endows that parent
with legal custody. Where there has been an award of joint custody
in a divorce, the USCIS will consider both parents to have legal
custody. If the issue of custody is not addressed in a divorce
decree or separation agreement, the determination of custody will
be based on the laws of the state or country of residence.

The CCA also amends Section 322 of the Immigration and Nationality
Act so that children, both biological and adopted, of US citizens
who are born and live abroad, so that they do not come to the USA
as permanent residents, and who are not US citizens at birth, can
still apply for a certificate of citizenship upon satisfaction of
the following criteria:

At least one parent, not both, must be a US citizen, whether

by birth or naturalization.

The US citizen parent has been physically present in the USA

for a total of at least 5 years, at least 2 after age 14. If
the citizen parent cannot meet this, the physical presence of
a citizen grandparent can be substituted. Include Supplement
A to N-643 in this event. It is not necessary for the citizen
grandparent to be alive so long as he/she met the physical
presence requirement of Section 322 (a)(2)(B) at the time of
death.

Unlike birthright citizenship under INA Section 301(g),

physical presence AFTER the birth of the child counts.

Child is under 18.

Child lives abroad in the legal and physical custody of the US

citizen parent and has been lawfully admitted to the USA as a
nonimmigrant. Normally, the child will come to the USA on a B-

10
 2 tourist visa for the naturalization interview but the
Consular Officer will want to see the appointment notice
issued after the N-600K filing.

If the child does not reside in the USA, that child will not
automatically qualify under the CCA. However, the parent may still
apply for citizenship through submission of the N-600K (Application
for Citizenship and Issuance of a Certificate under INA Section
322) to any USCIS District office in the USA; complete forum
shopping. Upon approval of the application and the taking of an
oath of allegiance, assuming the child is old enough to understand
the significance of an oath, citizenship attaches.

Children who acquire citizenship under Section 322 do not

automatically become US citizens. That is why they have to submit
the N-600K and get it approved This is a form of naturalization.

If the US citizen parent has died, then a US citizen grandparent or

legal guardian may apply on behalf of the child within 5 years of
the parent’s death. If the physical presence of the deceased
parent is used to fulfill the physical presence requirement of INA
322, the citizen grandparent must have been alive at the time of
the citizen parent’s death. Once this requirement is met, the US
citizen grandparent or duly-appointed US citizen legal guardian can
file the N-600 (or N-600K) on behalf of the eligible child whose US
citizen parent had died during the preceding 5 years. The joint
interview of the citizen grandparent/legal guardian and child can
take place after the 5 year time period at any time while the child
is under age 18. While the child has to reside outside the USA, the
US citizen grandparent/legal guardian can reside anywhere.

The question arises as to the eligibility of children born out of

wedlock who have not been legitimated for derivative citizenship
whether under Section 320 or Section 322.
Such children were previously eligible for derivative citizenship
through former Section 321 that was repealed when the CCA took
effect. The CCA has no specific provision for out of wedlock
children. For this reason, the legacy INS asked for the DOJ Office
of Legal Counsel to tell them if a child born out of wedlock who
had not been legitimated could derive citizenship under the CCA.
The answer can back in the affirmative. Assuming satisfaction of
all other applicable requirements, a child born out of wedlock who
has not been legitimated is indeed eligible for derivative
citizenship when his/her mother becomes a naturalized citizen of
the USA.

If a child automatically will derive US citizenship under the CCA,

whether through adjustment of status or entry on an immigrant visa,
there is no requirement to include an affidavit of support on Form
I-864 that would otherwise be applicable.

The child of a member of the Armed Forces has special legal

11
challenges and a recent amendment to Section 322 (d) that took
effect on January 28, 2008 (“ National Defense Authorization Act
for FY 2008)(Public Law 110-181) made things a bit easier. Section
322 (d) allows the US citizen parent to count the time abroad as
physical presence in the USA and allows the child to naturalize
overseas. These changes apply only if the parent is in active
military service; the new changes do not benefit a child of a
federal contractor or civilian employee. The N-600K is filed with
the Nebraska Service Center of USCIS or with the USCIS office
abroad with jurisdiction, and fingerprinting of the child before
deployment of the parent will be expedited by any Application
Support Center; after deployment, fingerprinting, interview and
final swearing-in can take place abroad. A step-child of a soldier
is not covered while an adopted child is covered if all legal
criteria are met. The child of a service member is not required to
have the green card or any kind of lawful admission to the USA.
There is no longer any requirement for the child to return to the
USA to take the oath of allegiance before a USCIS officer to
acquire citizenship. For all other cases, the naturalization
process for a child under section 322 of the INA cannot take place
solely overseas. Section 322(d) of the INA exempts any child of an
Armed Forces parent who is residing abroad per official orders from
the temporary physical presence, lawful admission and maintenance
of lawful status requirements under section 322(a)(5). However, in
order to qualify under Section 322(d), the child must not qualify
under Section 320 and a Section 320 child, including the child of
a member of the Armed Forces, must be a green card holder.
II: Derivative Citizenship

Many people are US citizens but do not know it. Factors that
influence acquisition of citizenship at birth through parents are:
(1) date child was born; (2) citizenship of parents- e.g. one US
parent, two US parents; (3) whether the US citizen parent or
parents had to and did reside in the USA for a specified period of
time; and (4) whether the child was required to and did reside in
the USA for a specified time. On this last point, the retention
requirement was repealed on October 10, 1978; if your client was
under age 26 on that date, they no longer have to satisfy any
retention requirement. A child born abroad to two US parents
acquires US citizenship at birth under Section 301(c) of the INA.
One of the parents, but not both, must have resided in the USA
before the child was born, though not for any specific period of
time. Residence after the child is born does not count. The parent
need not have been a citizen at the time of such residence. A child
born abroad in wedlock to one US and one non-citizen parent derives
US citizenship under Section 301(g) if the US citizen parent was
physically present in the USA before the child was born for a
specified period of time. Since November 14, 1986, the physical
presence is 5 years, 2 after age 14; between Dec. 24, 1952 and Nov
13, 1986, the physical presence requirement was 10 years, 5 after
age 14.

12
If the child is born abroad out of wedlock to a US citizen mother,
that child becomes a US citizen at birth under section 309(c) if
the mother was a USC at the time of birth and had been physically
present in the USA for one continuous year. By contrast, the burden
of proof is MUCH higher if the child is born abroad out of wedlock
to a US citizen father.
Section 309(a) of the INA sets forth the applicable criteria:

A blood relationship between the child and father is

established by clear and convincing evidence;
The father was a US citizen at the time of birth of child;
The father(if alive) had agreed in writing to support the
child until age 18; and
While the child is under age 18, one of three things happen:
(1) legitimation under the law of their residence or domicile;
(2) father acknowledges paternity in writing under oath; or
(3) paternity of child is established by judicial decree.
Remember this rule: “The applicable law for transmitting
citizenship to a child born abroad when one parent is a US citizen
is the statute that was in effect at the time of the child’s
birth.” Chau v. Immigration and Naturalization Service, 247 F. 3d
1026, 1029 (9th Cir. 2000). We do not look at the current law.

Even though former Section 321(a) was repealed by the CCA, it is

still relevant for those who derived US citizenship under its
terms. It provided in pertinent part that a child born outside the
USA of alien parents became a US citizen upon fulfillment of the
following conditions:

Naturalization of both parents; or

Naturalization of surviving parent if one parent died; or
Naturalization of the parent who had legal custody of child in
event of legal separation of the parents or the naturalization
of the mother if the child was born out of wedlock and the
paternity of the child has not been established by
legitimation; and if
Such naturalization took place while such child is unmarried
and under age 18; and
Such child is residing in the US as a lawful permanent
resident.

The law applies which existed at the time the last requirement for
derivative citizenship was satisfied. Ashton v. Gonzales, 431 F. 3d
95, 97 (2d Cir 2005). However, the Third Circuit, in an
unpublished opinion, ruled that an inexplicable delay by the INS in
adjudicating a parent’s naturalization applicable cannot negate the
child’s claim for derivative citizenship. Calix-Chavarria v. AG of
the United States, 182 Fed. Appx. 72, 76 (3d Cir. 2006).
A child who satisfied all the conditions of former INA 321(a)
before age 18 years acquired citizenship even if the naturalized
parent acquired legal custody of the child after naturalization.

13
Matter of Baries-Larios, 24 I & N Dec. 467 (BIA March 10, 2008).

III: Dual Citizenship

One often hears that the US does not allow or tolerate dual
nationality. Not exactly. A routine oath of allegiance taken in the
context of naturalization in a foreign state will not cause loss of
US citizenship absent aggravating circumstances. A routine oath of
allegiance is one that does not contain language requiring
renunciation of loyalty to the USA. In fact, since 1990, the
State Department, when evaluating the consequences of a potentially
expatriating act, such as naturalization abroad as listed in INA
349, has adopted an administrative presumption, now codified in
regulation at 22 CFR 50.40(a), that such foreign citizenship was
acquired with the intent to retain US citizenship:

(a) Administrative presumption. In adjudicating potentially

expatriating acts pursuant to INA 349(a), the Department has
adopted an administrative presumption regarding certain acts
and the intent to commit them. U.S. citizens who naturalize in
a foreign country; take a routine oath of allegiance; or
accept non-policy level employment with a foreign government
need not submit evidence of intent to retain U.S. nationality.
In these three classes of cases, intent to retain U.S.
citizenship will be presumed.

It is true that someone who naturalizes and becomes an American

must renounce all former allegiance. Interestingly, the foreign
passport is not taken away at the final swearing in and, while
certainly inconsistent with the oath of allegiance to the USA, is
not listed as an expatriating act in Section 349 of the INA and
cannot consequently result in involuntary loss of US citizenship.
A child born in the USA to parents who are not US citizens may well
have more than one nationality. Likewise, a child born in a foreign
country to US citizen parents may be both a US citizen and a
citizen of the country of birth. Similarly, a US citizen may
acquire foreign citizenship by marriage. In order to lose US
citizenship through the acquisition of a foreign allegiance, US law
requires that the person apply voluntarily for this foreign
citizenship and do so with the intention to give us US citizenship.
Vance v. Terrazas, 444 US 252 (1980); Afroyim v. Rusk, 387 US 253
(1968). Congress subsequently adopted the Terrazas principle in the
Immigration and Nationality Act Amendments of 1986, Pub.L. No. 99-
653, Section 18, 100 Stat. 3655, by specifying that acts of
expatriation listed in INA Section 349 would result in loss of
citizenship only if performed “with the intention of relinquishing
United States nationality.”
The Immigration and Technical Corrections Act of 1988, Pub. L. No.
100-25, Section 8®, 102 Stat. 2609, 2618 took the next logical step

14
by mandating that the 1986 Amendment “ shall apply to actions taken
before, on, or after November 14, 1986.” So, it is perhaps more
accurate and truthful to say that US law recognizes, but does not
encourage, dual nationality because of the problems it can cause.
Dual nationals owe allegiance to the USA and the foreign country
whose laws and interests may not always coincide and can conflict.

Even if one is a dual national, US law requires that this dual

national, like all US citizens, depart and enter the USA only on a
US passport, although there is no penalty for failing to do so.
Dual nationals may also be required by the foreign country to use
the foreign passport to enter and leave that country. Foreign
naturalization by an American citizen, especially when coupled with
an explicit renunciation of US citizenship as part of the oath, can
give rise to an inference that the foreign citizenship was acquired
with the intent to no longer remain a US citizen. However, this is
a rebuttable presumption and can be overcome with proof that the
person did not intend to abandon US citizenship.

Short but instructive advice concerning dual nationality and

retention or loss of US citizenship can be found at
http://travel.state.gov/law/citizenship/citizenship_778.hmtl
Someone who has lost US citizenship and wants to have their case
considered in light of the premise that they became a foreign
citizen with the intent to keep their US citizenship may request
such review by submitting a request to the US Citizens Services
Section of the closest US Consulate or by writing directly to :

Express Mail:

Director
Office of Policy Review and Inter-Agency Liaison
Overseas Citizens Services
Bureau of Consular Affairs
US Department of State
4th floor
2100 Pennsylvania Ave, NW
Washington DC 20037
Phone: 202-736-9110
Fax 202-736-9111
Email: ASKPRI@state.gov

Regular Mail:

Director
Office of Policy Review and Inter-Agency Liasion
Overseas Citizens Services
Bureau of Consular Affairs
US Department of State
SA-29, 4th floor

15
Washington, DC 20520

IV.

LITIGATION ISSUES AND STRATEGIES

A. Challenging the Wrongful Denial

While § 310(a) of the INA gives exclusive naturalization

authority to the Attorney General, § 310(c) provides for judicial
review for a person whose application for naturalization is denied.
Note, however, that before a person can head to federal district
court under § 310(c), he or she must first have exhausted available
administrative remedies by requesting review, pursuant to INA §
336(a), within 30 days of the decision denying the naturalization
application. 8 C.F.R. § 336.9(d). That request for a hearing is
made on Form N–336 and requires a filing fee (at this time) of
$605.00. See 8 C.F.R. § 336.2. The USCIS allows itself up to 180
days to schedule a review hearing on the administrative appeal. 8
C.F.R. § 336.2(b). Only after that administrative process is
completed, or the 180 days have run, may a naturalization applicant
seek review in federal district court.

The beauty of judicial review under § 310(c) of the INA is

that it can be de novo, i.e., the USCIS's previous decision is
entitled to no weight, respect or deference, and the petitioner
gets full de novo review by way of a hearing in court on the
application itself. A sample complaint under § 310(c) is attached
to these materials as Appendix 2. The regulations state that such
an action must be brought within 120 days of the USCIS's final
determination, 8 C.F.R. § 336.9(b), and further instruct that it
shall be brought against the USCIS. I am not sure where the USCIS
gets off telling us how long we have to sue when Congress did not
do so. The Tenth Circuit certainly thinks that the USCIS can do no
such thing, see Nagahi v. Immigration and Naturalization Service,
219 F.3d 1156 (10th Cir. 2000) (120 day requirement unlawful;
plaintiff has six years to bring § 310(c) action). Nagahi is the
sole case on point, and in my limited experience the USCIS now
accepts it as the law.

Of course, the fact that you are finally able to drag the
government into federal district court on a level playing field to
determine, de novo, whether your client is entitled to
naturalization, does not mean that you are automatically going to
win. You have to prove your case, and you cannot expect the other
side to always lie down. However, a federal district court might
have a very different opinion as to, for example, your client's
good moral character or his knowledge of English and civics than
the opinion of the USCIS examiner that came earlier, especially
when you have time to prepare for your hearing and are able to
marshal your witnesses and evidence beforehand. Appendix 3 is the

16
court’s order after the de novo hearing requested in Appendix 2.

B. The Statutory Delay Case

The INA also provides another route to federal district court
to jump-start a naturalization case that is sitting in limbo. When
the USCIS fails to make a decision as to an applicant's eligibility
for naturalization within 120 days of the initial examination under
INA § 335, the applicant may bring an action in federal district
court, and the court may hear the matter or remand the matter with
instructions. INA § 336(b). While there is no exhaustion of
remedies requirement attached to this particular avenue for
judicial review, good sense might counsel against using it unless
something about the USCIS's underlying conduct is particularly
egregious, or the delay is just too long. Otherwise the federal
district court might reasonably conclude that the problem is simply
an overworked agency trying to deal with complicated legal matters
in an orderly fashion, and give no more relief than sending the
case back to the USCIS with vague instructions to continue
processing it.

Attached hereto as Appendix 4 is a complaint in a typical

statutory delay case. USCIS began to get bombarded with lawsuits
like this one starting in 2005, when the national security checks
generated by 9/11 began to cause outrageous delays in
naturalization cases all over the place. For quite a while
Immigration would simply not contest these lawsuits and complete
the naturalization case rather than fighting in court. However, in
early 2007 USCIS got tired of rolling over, and began to actively
defend these lawsuits with motions to dismiss based on all sorts of
jurisdictional and other arguments. Until September of 2007 the
district court decisions were about equally divided among
dismissing the lawsuits, remanding the cases to USCIS with no
instructions about how long they could take, and remanding the
cases to USCIS with time-limiting instructions about how long the
Government had to complete the processing of the N-400's.

Then Imran Mirza, our colleague in Houston, swept in and saved

the day with Walji v. Gonzales, 500 F.3d 432 (5th Cir. 2007). In
that case the Fifth Circuit rejected the procedural and
jurisdictional arguments the Government was using to fight the
statutory delay cases, leaving the field clear for us to litigate
them on the merits. Thanks, Imran.

The key to these statutory delay cases (often called “1447(b)

cases” based on the codified version of § 336(b) in Title 8 of the
United States Code) is to get the federal district court to either
hear the case (which they almost never want to do), or to remand
the case to USCIS with specific instructions about how long the
Government has to complete its work on the N–400. You can find
through your computerized legal research literally dozens of recent
cases in which the federal district courts have done exactly the

17
latter, and use them in your argument that your court should do
likewise. Since Walji, the federal district courts have become
increasingly unreceptive to USCIS’s argument that naturalization
cases can properly be delayed because of “security checks” or “name
checks,” and seem almost anxious to punish the Government for even
daring to advance these arguments. See Mocanu v. Mueller, 07-0445
(E. D. Pa. 02/08/2008) (questioning whether USCIS can even use the
FBI name check program), Ghanim v. Gonzales, C07-0594 (W. D. Wash.
09/14/2007) (court gives USCIS four days to naturalize plaintiff or
the court will do so itself).

A nice, new development in § 1447(b) cases is that the courts

are showing themselves increasingly willing to award attorneys fees
against the government under the Equal Acts to Justice Act, even if
the only relief the plaintiff gets is an order remanding the case
to Immigration with instructions that it be completed within a
defined period of time. See, e.g., Aronov v. Chertoff, 536 F.3d 30
(1st Cir. 2008), Ghanim v. Mukasey, 545 F. Supp.2d 1146, 1150 (W.D.
Wash. 2008), Aboushaban v. Mueller, 475 F. Supp.2d 943, 946 (N.D.
Cal. 2007). There are many other unreported decisions to the same
effect that you can find on the Net.

C. The Plain Old (Pre-Interview) Delay Case

Prior to the 1990 amendments to the INA, immigration lawyers

had a lovely weapon at our disposal to deal with the situation in
which the INS would simply sit on an N–400 without doing anything.
We could file the infamous Motion to Calendar and shortly get a
federal judge to rule on whether our client was qualified to become
a U.S. citizen. While most of the judges would bark when we used
this device to simply jump ahead of the line, it was tremendously
effective when a particular N–400 would fall into a bureaucratic
black hole. In fact, a number of federal district judges in
Houston got so tired of entertaining these motions that after a
group of aggressive immigration lawyers brought an action to compel
INS to act on N-400s in a timely fashion, the Southern District of
Texas issued an order requiring the INS to adhere to a schedule
(issued by the Court) in bringing naturalization cases before the
Court.

After the changes to the naturalization procedures created by

IMMACT 90, those remedies are no longer available to us. However,
Congress has not yet repealed 5 U.S.C. § 702, which allows a person
suffering legal wrong because of agency action to seek judicial
review thereof, nor 5 U.S.C. § 706, which states that the reviewing
court should "compel agency action unlawfully withheld or
unreasonably delayed." In other words, there remains a statutory
basis for bringing a claim against the USCIS for unreasonably
delaying action on a naturalization application.

Once again, I would counsel against bringing such a claim just

to try to jump your man to the front of a long line of

18
naturalization applicants trying to work themselves through an
agency that has often been slow even when it is not swamped.
Specifically, for the APA delay lawsuit to be successful you will
probably need to show that the interview on your N–400 has been
delayed much longer than others, or something that makes your
client special--very advanced age, debilitating disease or some
other compelling reason your client deserves her naturalization
application to be acted on right away. (For example, Texas needs
teachers, but state law will not allow an LPR to teach in the
public schools for more than five years without becoming a
citizen.) If you can set that kind of special factor against a
backdrop of the USCIS operating an admittedly self-funding
mechanism so pathetically that it takes way too long for a person
to become a citizen, you are going to look good; in the absence of
such factors, you are more likely to get tossed out of court by the
body of law to the effect that to determine whether an action has
been "unreasonably delayed" within the meaning of 5 U.S.C. §
706(1)(c), the court should look at 1) the length of delay; 2) the
reasonableness of delay in the context of the statute authorizing
the agency's action; 3) the consequences of the agency's delay; and
4) "any plea of administrative error, administrative inconvenience,
practical difficulty in carrying out a legislative mandate, or need
to prioritize in the face of limited resources." See Raymond
Profit Foundation v. United States Environmental Protection Agency,
930 F. Supp. 1088, 1102 (E.D. Penn. 1986), quoted in In Re
International Chemical Workers Union, 958 F.2d 1144 (D.C. Cir.
1992).

D. DISPUTED CITIZENSHIP

The disputed citizenship case arises when your client claims

to have been born in the U.S. and the Government does not believe
it. Due largely to the Western Hemisphere Travel Initiative and
the increasing requirements that U.S. citizens have U.S. passports
to travel, more and more of these cases are popping up. The bad
ones are when your client’s family members are at a visa
appointment, and the fraud prevention unit of the consular post
decides that it does not believe the birth certificate, and
everything stops until they are convinced. The less bad ones are
when your client files a petition for a family member, or applies
for a U.S. passport, and the Government asks for additional proof
of your client’s birth in the U.S.

The facts underlying 95% of these cases (at least in Texas) go

roughly as follows: your client claims to have been born in the
U.S. while her mother was here on a brief visit or in undocumented
status. Your client has a birth certificate showing that she was
born at home or with a midwife. Your client explains that she was
taken back to Mexico while a baby, and did not return to the U.S.
until later on. Often, but not always, your client will also have
a Mexican birth registration, hopefully post-dating the U.S. birth

19
certificate.

The first thing you do when such a client comes in the door is
interrogate the client and the parent or parents about where the
client really was born. If the answer is that the client was born
elsewhere and the birth certificate is a fake, say goodbye.
Otherwise, you are probably going to really have to earn your fee.
What you usually have in your hands is similar to a derivative
citizenship case (see above); you are trying to prove the fact of
your client’s birth here in the absence of much hard evidence,
beyond the questioned birth certificate, to show that.

I believe the best approach to these cases is for the client

to apply for a U.S. passport, which is the second-best (more on
that later) proof of U.S. citizenship one can have. You do that
only after marshaling all your evidence, and deciding whether you
are going to be able to prove by a preponderance of the evidence
that your client was in fact born here. When the Department of
State denies, or unreasonably delays, the passport application, you
file suit for declaratory relief in federal district court under §
360 of the INA. Appendix 5 hereto is a complaint in such a case,
and Appendix 6 is the plaintiff’s motion for summary judgment in
the same case.

A portion of the oral remarks will be dedicated to tactical

considerations in these lawsuits.

20
 Write your USCIS ''A''- number here:
Part 5. Information for criminal records search.
A
NOTE: The categories below are those required by the FBI. See Instructions for more information.
A. Gender B. Height C. Weight

Male Female Feet Inches Pounds

D. Are you Hispanic or Latino? Yes No

E. Race (Select one or more.)

White Asian Black or African American Indian or Alaskan Native Native Hawaiian or
American Other Pacific Islander
F. Hair color
Black Brown Blonde Gray White Red Sandy Bald (No Hair)

G. Eye color
Brown Blue Green Hazel Gray Black Pink Maroon Other

Part 6. Information about your residence and employment.

A. Where have you lived during the last five years? Begin with where you live now and then list every place you lived for the last five
years. If you need more space, use a separate sheet(s) of paper.

Dates (mm/dd/yyyy)
Street Number and Name, Apartment Number, City, State, Zip Code and Country
From To
Current Home Address - Same as Part 4.A Present

B. Where have you worked (or, if you were a student, what schools did you attend) during the last five years? Include military service.
Begin with your current or latest employer and then list every place you have worked or studied for the last five years. If you need
more space, use a separate sheet of paper.

Employer or Employer or School Address Dates (mm/dd/yyyy) Your

School Name (Street, City and State) From To Occupation

Form N-400 (Rev. 10/15/07) Y Page 3

 Write your USCIS ''A"- number here:
Part 7. Time outside the United States.
A
(Including Trips to Canada, Mexico and the Caribbean Islands)

A. How many total days did you spend outside of the United States during the past five years? days

B. How many trips of 24 hours or more have you taken outside of the United States during the past five years? trips
C. List below all the trips of 24 hours or more that you have taken outside of the United States since becoming a Lawful
Permanent Resident. Begin with your most recent trip. If you need more space, use a separate sheet(s) of paper.

Date You Left the Date You Returned to Did Trip Last Total Days
United States the United States Six Months or Out of the
(mm/dd/yyyy) (mm/dd/yyyy) More? Countries to Which You Traveled United States

Yes No

Yes No

Yes No

Yes No

Yes No

Yes No

Yes No

Yes No

Yes No

Yes No

Part 8. Information about your marital history.

A. How many times have you been married (including annulled marriages)? If you have never been married, go to Part 9.

B. If you are now married, give the following information about your spouse:

1. Spouse's Family Name (Last Name) Given Name (First Name) Full Middle Name (If applicable)

2. Date of Birth (mm/dd/yyyy) 3. Date of Marriage (mm/dd/yyyy) 4. Spouse's U.S. Social Security #

5. Home Address - Street Number and Name Apartment Number

City State Zip Code

Form N-400 (Rev. 10/15/07) Y Page 4

 Write your USCIS ''A"- number here:
Part 8. Information about your marital history. (Continued.)
A
C. Is your spouse a U.S. citizen? Yes No

D. If your spouse is a U.S. citizen, give the following information:

1. When did your spouse become a U.S. citizen? At Birth Other

If ''Other,'' give the following information:

2. Date your spouse became a U.S. citizen 3. Place your spouse became a U.S. citizen (Please see Instructions.)

City and State

E. If your spouse is not a U.S. citizen, give the following information :

1. Spouse's Country of Citizenship 2. Spouse's USCIS ''A''- Number (If applicable)

A

3. Spouse's Immigration Status

Lawful Permanent Resident Other

F. If you were married before, provide the following information about your prior spouse. If you have more than one previous
marriage, use a separate sheet(s) of paper to provide the information requested in Questions 1-5 below.

1. Prior Spouse's Family Name (Last Name) Given Name (First Name) Full Middle Name (If applicable)

2. Prior Spouse's Immigration Status 3. Date of Marriage (mm/dd/yyyy) 4. Date Marriage Ended (mm/dd/yyyy)

U.S. Citizen
Lawful Permanent Resident 5. How Marriage Ended
Other Divorce Spouse Died Other

G. How many times has your current spouse been married (including annulled marriages)?
If your spouse has ever been married before, give the following information about your spouse's prior marriage.
If your spouse has more than one previous marriage, use a separate sheet(s) of paper to provide the information requested in
Questions 1 - 5 below.

1. Prior Spouse's Family Name (Last Name) Given Name (First Name) Full Middle Name (If applicable)

2. Prior Spouse's Immigration Status 3. Date of Marriage (mm/dd/yyyy) 4. Date Marriage Ended (mm/dd/yyyy)

U.S. Citizen
Lawful Permanent Resident 5. How Marriage Ended
Other
Divorce Spouse Died Other

Form N-400 (Rev. 10/15/07) Y Page 5

Part 9. Information about your children. Write your USCIS ''A"- number here:
A

A. How many sons and daughters have you had? For more information on which sons and
daughters you should include and how to complete this section, see the Instructions.
B. Provide the following information about all of your sons and daughters. If you need more space, use a separate sheet(s) of paper.

Full Name of Date of Birth USCIS ''A''- number Current Address

Country of Birth
Son or Daughter (mm/dd/yyyy) (if child has one) (Street, City, State and Country)

Add Children Go to continuation page

Part 10. Additional questions.

Please answer Questions 1 through 14. If you answer ''Yes'' to any of these questions, include a written explanation with this form. Your
written explanation should (1) explain why your answer was ''Yes'' and (2) provide any additional information that helps to explain your
answer.

A. General Questions.
1. Have you ever claimed to be a U.S. citizen (in writing or any other way)? Yes No
2. Have you ever registered to vote in any Federal, state or local election in the United States? Yes No
3. Have you ever voted in any Federal, state or local election in the United States? Yes No
4. Since becoming a Lawful Permanent Resident, have you ever failed to file a required Federal
state or local tax return? Yes No

5. Do you owe any Federal, state or local taxes that are overdue? Yes No
6. Do you have any title of nobility in any foreign country? Yes No

7. Have you ever been declared legally incompetent or been confined to a mental institution
within the last five years? Yes No

Form N-400 (Rev. 10/15/07) Y Page 6

Part 10. Additional questions. (Continued.) Write your USCIS ''A"- number here:
A

B. Affiliations.
8. a Have you ever been a member of or associated with any organization, association, fund Yes No
foundation, party, club, society or similar group in the United States or in any other place?

b. If you answered ''Yes,'' list the name of each group below. If you need more space, attach the names of the other group(s) on a
separate sheet(s) of paper.

Name of Group Name of Group

1. 6.

2. 7.

3. 8.

4. 9.

5. 10.

9. Have you ever been a member of or in any way associated (either directly or indirectly) with:

a. The Communist Party? Yes No

b. Any other totalitarian party? Yes No
c. A terrorist organization? Yes No

10. Have you ever advocated (either directly or indirectly) the overthrow of any government
by force or violence? Yes No

11. Have you ever persecuted (either directly or indirectly) any person because of race,
religion, national origin, membership in a particular social group or political opinion? Yes No

12. Between March 23, 1933 and May 8, 1945, did you work for or associate in any way (either
directly or indirectly) with:

a. The Nazi government of Germany? Yes No

b. Any government in any area (1) occupied by, (2) allied with, or (3) established with the
help of the Nazi government of Germany? Yes No

c. Any German, Nazi, or S.S. military unit, paramilitary unit, self-defense unit, vigilante unit,
citizen unit, police unit, government agency or office, extermination camp, concentration
camp, prisoner of war camp, prison, labor camp or transit camp? Yes No
C. Continuous Residence.
Since becoming a Lawful Permanent Resident of the United States:

13. Have you ever called yourself a ''nonresident'' on a Federal, state or local tax return? Yes No
14. Have you ever failed to file a Federal, state or local tax return because you considered
yourself to be a "nonresident"? Yes No

Form N-400 (Rev. 10/15/07) Y Page 7

 Write your USCIS ''A"- number here:
Part 10. Additional questions. (Continued.)
A

D. Good Moral Character.

For the purposes of this application, you must answer ''Yes'' to the following questions, if applicable, even if your records were
sealed or otherwise cleared or if anyone, including a judge, law enforcement officer or attorney, told you that you no longer have a
record.

15. Have you ever committed a crime or offense for which you were not arrested? Yes No

16. Have you ever been arrested, cited or detained by any law enforcement officer
(including USCIS or former INS and military officers) for any reason? Yes No

17. Have you ever been charged with committing any crime or offense? Yes No

18. Have you ever been convicted of a crime or offense? Yes No

19. Have you ever been placed in an alternative sentencing or a rehabilitative program
(for example: diversion, deferred prosecution, withheld adjudication, deferred adjudication)? Yes No

20. Have you ever received a suspended sentence, been placed on probation or been paroled? Yes No
21. Have you ever been in jail or prison? Yes No

If you answered "Yes" to any of Questions 15 through 21, complete the following table. If you need more space, use a separate sheet
(s) of paper to give the same information.

Why were you arrested, cited, Date arrested, cited, Where were you arrested, Outcome or disposition of the
detained or charged? detained or charged? cited, detained or charged? arrest, citation, detention or charge
(mm/dd/yyyy) (City, State, Country) (No charges filed, charges
dismissed, jail, probation, etc.)

Answer Questions 22 through 33. If you answer "Yes" to any of these questions, attach (1) your written explanation why your answer
was ''Yes'' and (2) any additional information or documentation that helps explain your answer.

22. Have you ever:

a. Been a habitual drunkard? Yes No
b. Been a prostitute, or procured anyone for prostitution? Yes No
c. Sold or smuggled controlled substances, illegal drugs or narcotics? Yes No
d. Been married to more than one person at the same time? Yes No
e. Helped anyone enter or try to enter the United States illegally? Yes No
f. Gambled illegally or received income from illegal gambling? Yes No
g. Failed to support your dependents or to pay alimony? Yes No

23. Have you ever given false or misleading information to any U.S. government official
while applying for any immigration benefit or to prevent deportation, exclusion or removal? Yes No
24. Have you ever lied to any U.S. government official to gain entry or admission into the
United States? Yes No

Form N-400 (Rev. 10/15/07) Y Page 8

 Write your USCIS ''A"- number here:
Part 10. Additional questions. (Continued.)
A

E. Removal, Exclusion and Deportation Proceedings.

25. Are removal, exclusion, rescission or deportation proceedings pending against you? Yes No

26. Have you ever been removed, excluded or deported from the United States? Yes No

27. Have you ever been ordered to be removed, excluded or deported from the United States? Yes No

28. Have you ever applied for any kind of relief from removal, exclusion or deportation? Yes No

F. Military Service.

29. Have you ever served in the U.S. Armed Forces? Yes No

30. Have you ever left the United States to avoid being drafted into the U.S. Armed Forces? Yes No

31. Have you ever applied for any kind of exemption from military service in the U.S. Armed Forces? Yes No

32. Have you ever deserted from the U.S. Armed Forces? Yes No

G. Selective Service Registration.

33. Are you a male who lived in the United States at any time between your 18th and 26th birthdays Yes No
in any status except as a lawful nonimmigrant?
If you answered "NO," go on to question 34.

If you answered "YES," provide the information below.

If you answered "YES," but you did not register with the Selective Service System and are still under 26 years of age, you
must register before you apply for naturalization, so that you can complete the information below:

Date Registered (mm/dd/yyyy) Selective Service Number

If you answered "YES," but you did not register with the Selective Service and you are now 26 years old or older, attach a
statement explaining why you did not register.

H. Oath Requirements. (See Part 14 for the Text of the Oath.)

Answer Questions 34 through 39. If you answer ''No'' to any of these questions, attach (1) your written explanation why the
answer was ''No'' and (2) any additional information or documentation that helps to explain your answer.

34. Do you support the Constitution and form of government of the United States? Yes No

35. Do you understand the full Oath of Allegiance to the United States? Yes No

36. Are you willing to take the full Oath of Allegiance to the United States? Yes No

37. If the law requires it, are you willing to bear arms on behalf of the United States? Yes No

38. If the law requires it, are you willing to perform noncombatant services in the U.S. Armed Forces? Yes No

39. If the law requires it, are you willing to perform work of national importance under civilian Yes No
direction?
Form N-400 (Rev. 10/15/07) Y Page 9
Case 6:07-cv-00304-MHS Document 1 Filed 07/02/2007 Page 1 of 8
Case 6:07-cv-00304-MHS Document 1 Filed 07/02/2007 Page 2 of 8
Case 6:07-cv-00304-MHS Document 1 Filed 07/02/2007 Page 3 of 8
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Case 6:07-cv-00304-MHS Document 1 Filed 07/02/2007 Page 7 of 8
Case 6:07-cv-00304-MHS Document 1 Filed 07/02/2007 Page 8 of 8
 Case 6:07-cv-00304-MHS Document 10 Filed 06/04/2008 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION

FLORENTINO BORUNDA §
§
v. §
§
ANGELA K. BARROWS, in her official § CASE NO. 6:07-CV-304
capacity as District Director of the Dallas §
District Office of the USCIS, and the U.S. §
CITIZENSHIP AND IMMIGRATION §
SERVICES §

FINAL JUDGMENT

On June 2, 2008, the Court held a hearing on the above entitled action. At that time, the

Court found that the Plaintiff, Florentino Borunda, demonstrated an understanding of the English

language, including an ability to read, write, and speak words in ordinary usage in the English

language as defined by 8 U.S.C.A. § 1423(a)(1). The Court remanded this matter to the Immigration

and Naturalization Service for the completion of any other requirements necessary for a certificate

of naturalization in accordance with the Court’s finding. The Court also ordered that all other

requirements be completed within 90 days. As no further action by the Court is required in this

case, it is hereby ORDERED, ADJUDGED, and DECREED that final judgment be entered in this

case.

All relief not previously granted is hereby DENIED.

It is SO ORDERED.
 IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION

HILARIO MEDINA, §
§
Plaintiff §
§
V. § CIVIL ACTION NO. ____________
§
MICHAEL CHERTOFF, in his §
official capacity as Secretary §
of the Department of Homeland § JUDGE: _______________________
Security, §
§
Defendant §

COMPLAINT

Preliminary Statement

1. In January of 2007 the Plaintiff, Hilario Medina

(hereinafter “Mr. Medina” or “Plaintiff,”) a lawful permanent

resident of the United States, applied to become a naturalized U.S.

citizen. The U.S. Citizenship and Immigration Services

(hereinafter “USCIS”) interviewed him on that application on July

11, 2007. The law provides that if the USCIS has not made a

decision on a naturalization application within 120 days of the

interview, the applicant can petition the federal district court

where he lives for a hearing on his application. The USCIS has not

made a decision of Plaintiff’s application within much more than

120 days.

2. Plaintiff therefore brings this action requesting that

this Court hear his application for naturalization, and after such

hearing make a declaration that he is entitled to be naturalized,

issue an order admitting him to citizenship, and grant him his

attorney's fees and costs as provided by law.

Jurisdiction and Venue

 3. This Court has jurisdiction of this action under 8 U.S.C.

§ 1447(b) as an application for a hearing on an unduly delayed

application for naturalization.

4. Venue is proper in the Eastern District of Texas under 28

U.S.C. § 1391(e) and under 8 U.S.C. § 1447(b), as the plaintiff

resides in this District.

5. An actual controversy has arisen and now exists between

Plaintiff and Defendant.

PARTIES

6. Plaintiff is an adult citizen of Mexico and a resident of

Tyler, Smith County, Texas.

7. Defendant Michael Chertoff is the Secretary of the U.S.

Department of Homeland Security, and as such is charged by statute

with the administration and enforcement of the Immigration and

Nationality Act and all other laws relating to the immigration and

naturalization of aliens. He is sued in his official capacity

only.

Facts

8. Plaintiff Hilario Medina was born in 1956 in Mexico, and

immigrated to the United States as a lawful permanent resident on

August 10, 1981, based on his marriage to his wife, Pam Medina, a

U.S. citizen.

9. Plaintiff is able to demonstrate an understanding of the

English language, including an ability to read, write and speak

words in ordinary English usage in the English language.

10. Plaintiff is able to demonstrate a knowledge and

understanding of the fundamentals of the history, and of the

2
principles and form of government, of the United States.

11. Plaintiff is not and has never been opposed to government

or law, nor has he favored totalitarian forms of government, nor

has he been connected in any meaningful manner with any

organization, including but not limited to any communist

organization, that does so.

12. Plaintiff is not a deserter from the armed forces of the

United States and has never been relieved from training and service

in the U.S. armed forces because of alienage.

13. On or about January 24, 2007, Plaintiff applied to become

a naturalized citizen of the United States.

14. Immediately preceding the date of filing his application

for naturalization as set forth above, Plaintiff had resided

continuously within the United States for at least three years, and

during the three years immediately preceding that date, he had been

physically present in the United States for a period totaling at

least half of that three-year time.

15. Plaintiff has resided within the State of Texas for at

least three months as of the time of filing of this lawsuit.

16. Plaintiff has resided continuously within the United

States from the date he submitted his application for

naturalization, and continues to do so.

17. During all the periods of time referred to in ¶¶ 14

through 16 above and continuing to the present, Plaintiff has been

a person of good moral character, attached to the principles of the

Constitution of the United States, and well disposed to the good

order and happiness of the United States.

3
 18. With his Application for Naturalization, Plaintiff

submitted to the USCIS Texas Service Center in Dallas, Texas a

$330.00 filing fee plus a $70.00 fingerprinting fee.

19. Some time after submitting his Application for

Naturalization on or about January 24, 2007, Plaintiff received

from the USCIS a notice that he was scheduled to be fingerprinted

in Dallas, Texas for the purposes of his Application for

Naturalization. He went to that appointment and was fingerprinted.

20. On or about June 25, 2007 Plaintiff received a notice

from the USCIS advising him to appear for an interview on his

Application for Naturalization on July 11, 2007, at the USCIS

Dallas District Office.

21. Plaintiff went to the interview of July 11, 2007 and at

such interview demonstrated that he was qualified for citizenship,

and passed the tests of his knowledge of the government and history

of the United States and of his ability to read, write and speak

English.

22. From July 11, 2007 to the time of filing of this lawsuit,

Plaintiff’s application has remained pending with the USCIS.

23 Defendant has failed to make a determination under 8

U.S.C. § 1446 as to Plaintiff’s eligibility for naturalization for

more than 120 days after the date the USCIS conducted its

examination under that section, and Plaintiff is therefore entitled

under 8 U.S.C. § 1447(b) to ask this Court to hear his application.

24 Therefore, Plaintiff requests that this Court grant

Plaintiff a hearing on his application in accordance with 8 U.S.C.

§ 1447(b). While under the cited statute this Court has the option

4
to remand this matter to the USCIS, Plaintiff respectfully requests

that the Court hear the matter itself, instead of sending

Plaintiff’s application for naturalization back to the USCIS and an

unknown future.

25 At the time of filing of this action, Plaintiff is an

individual with net worth not exceeding Two Million and No/100

Dollars ($2,000,000.00).

26 Defendant's treatment of Plaintiff and Plaintiff's

application for naturalization in the manner described above has no

reasonable basis in fact or law, and is not substantially

justified.

CAUSE OF ACTION

27 By failing to timely process and complete Plaintiff’s

Application for Naturalization, Defendant has adversely affected

and aggrieved Plaintiff, for which relief is provided under 8

U.S.C. § 1447(b).

PRAYER FOR RELIEF

Wherefore Plaintiff prays this Honorable Court do the

following:

a) schedule a hearing on Plaintiff's application for

naturalization;

b) following said hearing, enter findings of facts and

conclusions of law that Plaintiff is qualified for

naturalization and enter an order admitting Plaintiff to

citizenship;

c) order Defendant to issue Plaintiff a Certificate of

Naturalization at the next available opportunity, but in

5
 no event later than 30 days after this Court's final

order disposing of this matter;

d) grant Plaintiff a reasonable attorney's fee and his costs

and expenses herein pursuant to 28 U.S.C. § 2412; and

e) grant Plaintiff any and all additional relief to which he

may appear to be entitled.

Respectfully submitted,

RICHARD S. FISCHER
State Bar No. 07043100

THE LAW OFFICES OF RICHARD S. FISCHER

114 South Pecan Street
Nacogdoches, Texas 75961
Phone: (936)564-2222
FAX: (936) 564-1346
E-mail: fischerlaw@sbcglobal.net

Attorney for Plaintiff

6
 IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

JAVIER ESCALANTE, §
§
Plaintiff §
§
V. § CIVIL ACTION NO. _____________
§
CONDOLEEZZA RICE, in her §
official capacity as Secretary §
of State of the United States, § JUDGE: _______________________
§
§
Defendant §
COMPLAINT

COMES NOW Javier Escalante, hereinafter “Plaintiff,”

complaining of Condoleezza Rice, in her official capacity as

Secretary of State of the United States, hereinafter “Defendant,”

and for his complaint states as follows:

I.

PRELIMINARY STATEMENT

1. Plaintiff, a native-born citizen of the United States,

applied to Defendant for a United States passport. Defendant

denied that application on the ground that she was not satisfied

with Plaintiff’s proof that Plaintiff was a citizen of the United

States. Plaintiff brings this action seeking a declaratory

judgment that he is a citizen of the United States. Plaintiff

also seeks to recover his attorney’s fees and costs.

II.

JURISDICTION AND VENUE

2. This Court has jurisdiction over this case under 8

U.S.C. § 1503(a) and 28 U.S.C. §§ 2201 and 2202, as Plaintiff

brings this action seeking a declaratory judgment that he is a

citizen of the United States. Venue is proper in this District

under 8 U.S.C. § 1503(a) and 28 U.S.C. § 1391(e).

3. An actual controversy has arisen and now exists between

Plaintiff and Defendant.

PARTIES

4. Plaintiff Javier Escalante, is a 41-year-old citizen of

the United States and resident of Lufkin, Angelina County, Texas.

5. Defendant Condoleezza Rice is the Secretary of State of

the United States, and as such is charged by statute with

adjudicating applications for United States passports. She is

sued in her official capacity only.

FACTS
6. Plaintiff Javier Escalante was born on August 16, 1966

in Eagle Pass, Maverick County, Texas.

7. By virtue of being born in the United States, Plaintiff

was born a U.S. citizen.

8. Plaintiff has done nothing to renounce or otherwise lose

his U.S. citizenship from the time of his birth until now.

9. In December of 2005 Plaintiff applied for a U.S.

passport by submission of an “Application for a US Passport” to

the United States Department of State, the agency Defendant

heads.

10. On January 29, 2007, the United States Department of

State denied Plaintiff’s application for a U.S. passport on the

ground that he had not proved that he was a citizen of the United

States.

2
 11. The denial of Plaintiff’s application for a U.S.

passport has harmed Plaintiff and continues to harm Plaintiff in

that he cannot safely travel abroad and return to the U.S.

12. Plaintiff has exhausted his administrative remedies.

13. Denial of Plaintiff’s application for a U.S. passport

was arbitrary, unreasonable, and unsupported by fact or law.

14. Plaintiff is an individual whose net worth does not

exceed the sum of $2,000,000.00 at the time of filing of this

lawsuit.

15. No special circumstances exist in this case such as to

make an award of attorney’s fees against Defendant unjust.

CAUSE OF ACTION
16. Plaintiff seeks a declaratory judgment from this Court,

pursuant to 8 U.S.C. § 1503(a), that he is a United States

citizen by birth.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays that this Honorable Court:

A. Set this case for a de novo hearing on Plaintiff’s

claim to U.S. citizenship;

B. Following said hearing, enter a declaratory judgment

declaring that Plaintiff is a citizen of the United States by

virtue of having been born in this country; and

C. Grant Plaintiff a reasonable attorney's fee under 28

U.S.C. § 2412 and his costs and expenses herein, together with

any and all additional relief to which Plaintiff may appear to be

entitled.

3
Respectfully submitted,

/s/
RICHARD S. FISCHER
State Bar No. 07043100

THE LAW OFFICES OF RICHARD S. FISCHER

114 South Pecan Street
Nacogdoches, Texas 75961
(936)564-2222
FAX: (936)564-1346
E-Mail: fischerlaw@sbcglobal.net

Attorney for Plaintiff

4
 IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

JAVIER ESCALANTE, §
§
Plaintiff §
§
V. § CIVIL ACTION NO. 9:08-CV-96
§
CONDOLEEZZA RICE, in her §
official capacity as Secretary §
of State of the United States, § JUDGE HEARTFIELD
§
§
Defendant §
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

COMES NOW Javier Escalante, hereinafter “Plaintiff,” by

counsel, and makes and submits this his Plaintiff’s Motion for

Summary Judgment, and would show as follows:

I.

Statement of the Issues to be Decided by the Court

1. Plaintiff alleges that he was born on August 16, 1966 in

Eagle Pass, Maverick County, Texas, and that by virtue of being

born in the United States he was born a U.S. citizen. Complaint,

¶¶ 6, 7. Defendant denies those allegations. Answer, ¶¶ 6, 7.

2. Plaintiff alleges that he has done nothing to renounce or

lose his U.S. citizenship. Complaint, ¶ 8. Defendant denies

that allegation for lack of sufficient information. Answer, ¶ 8.

II.

Statement of Undisputed Material Facts

3. Plaintiff applied for a U.S. passport in December of 2005,

and Defendant denied that application by letter dated January 29,

2007 on the ground that Plaintiff had not proved that he was a
citizen of the United States. Complaint, ¶¶ 9, 10; Answer, ¶¶ 9,

10.

III.

Summary Judgment Evidence

In support of this Motion, Plaintiff submits the following

numbered exhibits:

1. Plaintiff’s Certificate of Birth, showing that he was

born in Eagle Pass, Maverick County, Texas, on August

15, 1966.

2. Affidavit of Facts of Lucia Valenzuela, Plaintiff’s

mother in which she testifies that Plaintiff was born

in Eagle Pass, Texas on August 16, 1966, and how it

came to happen that he was born there at that time.

3. Affidavit of Facts of Ernesto Escalante, Plaintiff’s

father in which she testifies that Plaintiff was born

in Eagle Pass, Texas on August 16, 1966, and how it

came to happen that he was born there at that time.

4. Affidavit of Facts of Javier Escalante, Plaintiff, in

which he testifies that he has not committed any act

that could cause him to renounce or otherwise lose his

U.S. citizenship under § 349(a) of the Immigration and

Nationality Act, 8 U.S.C. § 1481(a).

IV.

Applicable Law, Argument and Authorities

“All persons born [] in the United States, and subject to

the jurisdiction thereof, are citizens of the United States . . .

2
.” U.S. Const. amend. XIV, § 1. For a person born in the

United States to lose his U.S. citizenship, he must commit one of

the acts set forth in § 349(a) of the Immigration and Nationality

Act, 8 U.S.C. § 1481(a). Plaintiff’s attached affidavit shows

that he has never committed any of those acts.

Summary judgment is proper if the moving party shows with

proper summary judgment evidence that there is no genuine issue

as to any material fact and that he is entitled to judgment as a

matter of law. United States of America v. Medical Doctor J.

Scott Smith, 513 F.3d 228, 230 (5th Cir. 2008). Once the moving

party has made such a showing, the non-moving party must present

proper summary judgment evidence showing that there is a genuine

issue of material fact for trial. Id. Plaintiff has presented

proper summary judgment evidence, all of which is attached

hereto, as to all disputed material facts in this case.

V.

Conclusion and Prayer

WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully

requests that this Motion be granted.

Respectfully submitted,

/S/ RICHARD S. FISCHER

RICHARD S. FISCHER
State Bar No. 07043100

THE LAW OFFICES OF RICHARD S. FISCHER

114 South Pecan Street
Nacogdoches, Texas 75961
Phone: (936)564-2222
FAX: (936)564-1346
E-mail: fischerlaw@sbcglobal.net

Attorney for Plaintiff

3
 CERTIFICATE OF SERVICE

I hereby certify that this document was served

electronically, per this Court’s local rules, on this 4th day of

September, 2008.

/s/Richard S. Fischer
RICHARD S. FISCHER

4
 TAB 05
Grounds of Removal
 The University of Texas School of Law

Presented:
2008 Immigration Law Conference

October 23-24, 2008

San Antonio, Texas

Grounds of Deportability and Inadmissibility

Barbara Hines

Author contact information :

Barbara Hines
University of Texas School of Law
Immigration Clinic

bhines@law.utexas.edu
512-232-1310

Continuing Legal Education • 512-475-6700 • www.utcle.org

 Grounds of Deportability and Inadmissibility
Barbara Hines
University of Texas School of Law
Immigration Clinic
October, 2008

I. Introduction

The purpose of this article is to provide a basic introduction to the grounds of

inadmissibility and deportability. These provisions are complex, numerous and require a much
more in-depth analysis than can be provided in this article. When determining if a client is
inadmissible or deportable, the practitioner must analyze the exact wording of the statute and
regulations and review the administrative and federal court decisions and the Department of
Homeland Security (DHS) written policies and memoranda. Do not presume that your client is
inadmissible or deportable just because the Immigration and Customs Enforcement (ICE) branch
of DHS1 alleges that he or she is. Review carefully the allegations of a Notice to Appear, the
document which initiates removal proceedings. Do not automatically concede inadmissibility or
deportability. Require ICE to meet its burden of proof in removal proceedings.

II. Basic Differences between Deportability and Inadmissibility

Non-citizens in the United States, including lawful permanent residents (green card
holders) are subject to the grounds of inadmissibility2 and deportability.3 Grounds of
inadmissibility apply to those seeking admission in any category to the U.S. at a Consulate
abroad, at the port of entry or when seeking permanent residence either at the Consulate or
through adjustment of status in the U.S. This means that they may be denied admission into the
United States or denied a visa or permanent residence based on the grounds of inadmissibility or
deported from the U.S. based on the grounds of deportability.

Whether the grounds of inadmissibility or deportability apply to the non-citizen depends

on his or her immigration status and other factors. The grounds of inadmissibility are generally
broader than the grounds of deportability. The non-citizen, classified as an arriving alien, must
establish admissibility by evidence that is “clear and beyond a doubt.”4 Others charged with
grounds of inadmissibility must show a lawful admission by clear and convincing evidence.5 On
the other hand, ICE must establish deportability by clear and convincing evidence.6 Thus the
determination of which statutory provisions apply is a crucial inquiry.

1
The Department of Homeland Security includes the Bureau of Immigration and Customs Enforcement, which
initiates and prosecutes removal cases.
2
8 U.S.C. §1182, INA §212.
3
8 U.S.C. §1227, INA §237.
4
8 U.S.C. §1229a(c)(2)(A), INA §240(c)(2)(A).
5
8 U.S.C. §1229a(c)(2)(B), INA §240(c)(2)(B).
6
8 U.S.C. §1229a(c)(3), INA §240(c)(3). Woodby v. INS, 385 U.S. 276 (1966).

1
 Depending on the non-citizen’s status in the U.S., he or she will be charged under the
inadmissibility grounds or deportation grounds of the statute in a removal hearing.

Waivers exist for certain grounds of inadmissibility and deportability. This article does
not address these waivers in depth nor list all of them. Nevertheless, a practitioner should always
check to determine if a waiver applies in his or her client’s case.

III. Grounds of Inadmissibility

A. Applicability of Grounds of Inadmissibility

The grounds of inadmissibility apply to persons who are seeking to enter the U.S. at a
port of entry, i.e. at the border or at an international airport, or those seeking any type of visa to
enter the U.S. Inadmissibility also applies to persons who apply for permanent residence, either
at a U.S. Consulate abroad or at the DHS offices in the U.S.

In addition, the grounds of inadmissibility apply to a lawful permanent resident who

departs the country and seeks to reenter under certain circumstances.7 The general rule is that a
lawful permanent resident who re-enters the U.S. is not seeking “admission” and thus the rules of
inadmissibility do not apply. However, in certain circumstances, a lawful permanent resident is
considered to be seeking admission (arriving alien) and must establish admissibility. A
permanent resident who has abandoned his or her residence, has been out of the country for more
than 180 days, has engaged in illegal activity after departure, has departed while under removal
or extradition proceedings, has committed a criminal offense under the inadmissibility statute, or
attempts to enter without being inspected by an immigration officer, is classified as “seeking
admission.”8 Arriving aliens are not eligible for bond if detained at the border or port of entry but
instead must seek release on parole. When counseling a lawful permanent resident who falls
within any of the exceptions listed above, the attorney should determine whether the client
should leave the U.S. at all.

B. Health Related Grounds of Inadmissibility—8 U.S.C. §1182(a)(1) and

§1182(a)(10)(B)

All non-citizens who have communicable diseases as determined by the Secretary of

Health of Human Services9 and those who seek admission as a permanent resident who do not
have certain required vaccinations are inadmissible.10 Until recently, HIV was listed in the
statute as a medical ground of inadmissibility. In July, 2008, Congress passed H.R. 5501, the
United States Global Leadership Against HIV/AIDS, Tuberculosis and Malaria Reauthorization
Act which was also approved by the Senate and signed by the President. The new law restores

7
8 U.S.C. §1101(a)(13)(C), INA §1101(a)(13)(C).
8
8 U.S.C. §1101(a)(13)(C)(i)-(vi), INA §101(a)(13)(C)(i)-(vi).
9
8 U.S.C. §1182(a)(1)(A)(i), INA §212 (a)(1)(A)(i). In addition to HIV, infectious leprosy, lymphogruloma
vereum, syphilis and active TB are designated as communicable diseases.
10
8 U.S.C. §1182(a)(1)(A)(ii), INA §212 (a)(1)(A)(ii). See HIV/AIDS and Immigrants: A Manual for HIV/AIDS
Service Providers, http://www.nationalimmigrationproject.org/HIV/2004HIVManual/2004hivmanual/page7.html.

2
the authority of HHS to determine whether individuals with HIV should be allowed to enter the
U.S.

An applicant for permanent residence must present a medical examination, including an

HIV test, from one of the DHS or U.S. Consulate approved doctors. In addition, the applicant
must present proof of required vaccinations to the examining physician or be immunized at the
time of the exam.

A non-citizen who is determined by the Secretary of Health and Human Services (HHS)
to have a physical or mental disorder and behavior associated which the disorder that may pose
or has posed a threat to the property, safety or welfare of the non-citizen or others is
inadmissible.11 Note that this provision addresses current disorders. However a person who has
had such a disorder and prior conduct in the past is also inadmissible if the behavior is likely to
reoccur or will lead to other harmful behavior.12 The presence of a physical or mental illness
alone does not determine whether a person poses a significant risk.13 However, factors such as a
history of institutionalization, criminal history and violence where alcohol or psychoactive
substances were contributing factors, DUI and other factors may cause DHS to require a mental
status examination.14 Alcohol dependency including alcohol impaired driving may result in a
determination that the non-citizen has a mental disorder associated with harmful behavior.15

A non-citizen, who is determined by HHS to be a drug abuser or drug addict, is

inadmissible.16 Sometimes criminal defense attorneys reach plea agreements for drug offenses in
which the accused enters a drug rehabilitation program in lieu of a formal conviction.
Immigration practitioners should be aware that participation in such a program may lead to a
finding of drug abuse or addiction. On the other hand, a drug conviction carries even more
serious immigration consequences and can be construed as an aggravated felony.17

Drug abuse is defined as the non-medical use of a substance listed under the Controlled
Substances Act, which has not necessarily resulted in physical or psychological addiction, while
drug addiction is the same non-medical use which has resulted in dependence.18 However, it does
not include experimental use of drugs.19 A drug addict who has been in remission for three years
is no longer considered an addict.20 There is no waiver for drug addiction or abuse.

A person who accompanies another non-citizen who is found to be inadmissible under

the health provisions and whose protection or guardianship is needed is also inadmissible.

11
8 U.S.C. §1182(a)(1)(A)(iii)(I), INA §212(a)(1)(A)(iii)(I).
12
8 U.S.C. §1182(a)(1)(A)(iii)(II), INA §212(a)(1)(A)(iii)(II).
13
42 C.F.R. §34.4(b).
14
Yates memo, Assoc.Dir. Operations (Jan. 16, 2004), posted at AILA Infonet at 04022362 (Feb. 23, 2004).
15
Id.
16
8 U.S.C. §1182(a)(1)(A)(iv), INA §212(a)(1)(A)(iv).
17
See discussion, infra.
18
42 C.F.R. §34.2(g) and (h).
19
Cable DOS 91-State-416180 (Dec. 24, 1991), reprinted in 69 Interpreter Releases 6 (Jan. 6, 1992).
20
State Dep't cable (Dec. 24, 1991), describing HHS modification of previous restrictive interpretation, reproduced
in 69 Interpreter Releases 6 (1992). See also U.S. Dep't of State, 9 Foreign Affairs Manual (FAM) §40.11, n. 7.1.

3
Ostensibly, this provision is designed to ensure that a non-citizen who has mental or physical
disabilities will have a competent adult to assist him or her in departing from the U.S.21

The communicable disease ground of inadmissibility may be waived for certain non-
citizens.22 The waiver is available to a non-citizen who is the spouse, unmarried son or daughter
(regardless of his or her age), or minor unmarried adopted child of a U.S. citizen, a lawful
permanent resident or a person who has been issued an immigrant visa. A waiver is also
available to a non-citizen who has a son or daughter who is a U.S. citizen, a permanent resident
or person who has been issued an immigrant visa. VAWA immigrants are eligible for the waiver,
too.23 The terms of the waiver are determined by the DHS in consultation with HHS.

DHS has several policies regarding HIV waivers, although this may change based on the
recent legislation which returns authority to HHS. A non-immigrant may be admitted to the U.S.
for 30 days or less if he or she has no symptoms of AIDS, has sufficient insurance or resources
for medical care, and is not a danger to public health. DHS has recently issued a final rule which
liberalizes and streamlines the process of admission of non-immigrants with HIV.24 In addition,
non-immigrants may be admitted for academic or educational conferences or international
sporting events under a blanket designation by the Attorney General.25 A person seeking
permanent residence must be the spouse, unmarried son or daughter, unmarried adopted child or
parent of a U.S. citizen or permanent resident, not be a danger to public health, and establish that
he or she has sufficient insurance or resources for medical care.26 Note that the need for a waiver
may be reduced if HHS liberalizes its policies regarding the entry of persons with HIV.

A waiver is available for the vaccination requirement if the immunizations are not
medically appropriate or would be contrary to the non-citizen's religious beliefs.27 A waiver is
available for mental or physical disorders after consultation with the HHS under such terms and
conditions as the Attorney General may prescribe.28

C. Criminal and Other Misconduct—8 U.S.C. §1182(a)(2)

1. General principles

IIRAIRA provides a statutory definition of the term “conviction” which includes

deferred adjudication under the Texas statute.29 Note, however, that while a deferred

21
8 U.S.C. §1182(a)(10)(B), INA §212(a)(10)(B).
22
8 U.S.C. §1182(g), INA §212(g).
23
8 U.S.C. §1182(g)(1), INA §212(g)(1).
24
See, §212.4(f); http://bibdaily.com/pdfs/hiv_waiver_finalrule.pdf.
25
July 10, 1998 INS Fact Sheet on “HIV Infection: Inadmissibility and Waiver Policies.”
26
Memorandum from T. Alexander Aleinikoff, ICE Executive Associate Comm'r, to all INS offices, Immigrant
Waivers for Aliens Found Excludable Under Section 212(a)(10)(A)(i) of the Immigration and Nationality Act Due
to HIV Infection, File No. HQ 212.3-P (Sept. 6, 1995), reproduced in 72 Interpreter Releases 1347 (Oct. 2, 1995).
27
8 U.S.C. §1182(g)(2), INA §212(g)(2).
28
8 U.S.C. §1182(g)(3), INA §212(g)(3).
29
8 U.S.C. §1101(a)(48)(A), INA §101(a)(48)(A). See also, Matter of Rivera-Valencia, 24 I&N Dec. 484 (BIA
2008) (court-martial is a conviction).

4
adjudication is a conviction, it carries no term of imprisonment. The law defines "term of
imprisonment" and "sentence" to include a sentence that is suspended to a term of probation or
community supervision.30 Thus, an order of probation or community supervision under the Texas
statute constitutes a term of imprisonment. Because many of the grounds of inadmissibility and
deportability (but not all) are tied to a conviction or a term of imprisonment, these distinctions
are crucial.

In determining whether a crime meets the definition under the immigration statute, only
the minimum elements of the crime, based solely on record of conviction, may be considered.31
The actual conduct is irrelevant. This analysis, called the categorical approach and the modified
categorical approach, applies to both criminal grounds of inadmissibility and deportability.32 In
addition the doctrine of divisibility applies to the analysis of criminal convictions. If a criminal
statute involves multiple sections, some of which, for example, involve moral turpitude and
others which do not, and the record is not clear under which subsection a person has been
convicted, inadmissibility or deportability cannot be established, since the minimum conduct is
presumed.33

2. Convictions and admissions of crimes of moral turpitude

A person who has been convicted of, commits, admits the commission of or admits the
elements of a crime of moral turpitude is inadmissible. Note that no conviction is required for
this ground. However, in order to admit the elements of an offense, the non-citizen must admit to
all the facts and elements constituting the crime. DHS officials, however, do not always follow
these rules and attempt to obtain admissions of crimes without advising the non-citizen of the
elements of the offense.34

Moral turpitude is not defined under the statute. The Board of Immigration Appeals
(BIA) decisions are often less than illuminating.35 However, some general principles have
developed through judicial and administrative decisions. Moral turpitude offenses are crimes that
shock the public conscience, demonstrate baseness or vileness or contravene accepted standards
of morality. Offenses involving fraud or deceit are generally crimes of moral turpitude. Murder,
rape, voluntary manslaughter and robbery are also examples of crimes of moral turpitude.
Regulatory offenses are generally not crimes of moral turpitude.36 However, the BIA has

30
8 U.S.C. §1101(a)(48)(B), INA §101(a)(48)(B).
31
“Record of conviction” includes the judgment, sentence, plea agreement, plea transcript, indictment and
information, but not, for example, a police report. Matter of Teixeira, 21 I&N Dec. 316, 319 (BIA 1996).
32
The modified categorical approach allows the court to consider the entire conviction record as defined in Footnote
31.
33
Matter of Sweetser, 22 I&N Dec. 709 (BIA 1999).
34
Matter of E.N., 7 I&N Dec. 153 (BIA 1956).
35
See Matter of D, 1 I&N Dec. 190 (BIA 1942) (Crime of moral turpitude involves conduct “which is so far
contrary to the moral law, as interpreted by the general moral sense of the community, that the offender is brought to
public disgrace, is no longer generally respected, or is deprived of social recognition by good living persons.”)
36
For a more in depth discussion of crimes of moral turpitude and other criminal immigration issues, consult
Kesselbrenner and Rosenberg, Immigration Law and Crimes.

5
increasingly adopted an expansive interpretation of crimes of moral turpitude and of other
criminal provisions of the statute.

As discussed previously, whether a criminal offense is a crime of moral turpitude (or any
crime under the immigration laws) depends on the minimum elements of the offense, not the
actual facts of the case. In addition, some statutes are divisible, which means that they include
multiple sections which encompass conduct which is both turpitudinous and non-turpitudinous.
Under the categorical analysis, if the statute includes offenses not involving moral turpitude and
the record of conviction fails to specify under which section the non-citizen was convicted,
he/she is not inadmissible as the court must presume the minimum conduct.

3. Drug crimes and known traffickers

A person who is convicted of or who admits committing the elements of a crime relating
to a controlled substance as defined under federal law is inadmissible.37 This provision includes
attempts and conspiracy to commit such offenses. The drug must be one encompassed by federal
law. Some drug offenses are also aggravated felonies.38

A waiver is available for a non-citizen who possesses 30 grams or less of marijuana for
his or her personal use and who is the spouse, parent, son or daughter of a U.S. citizen or
permanent resident who would suffer extreme hardship if the non-citizen were not granted the
waiver. VAWA applicants are also eligible for the waiver.39 The Texas misdemeanor possession
statute criminalizes less than 2 ounces of marijuana which includes quantities that could be more
or less than 30 grams. It is important to obtain the police report or other proof that the actual
amount in question was 30 grams or less.

A non-citizen whom a consular officer or the Attorney General knows or has reason to
believe is or has been an illicit trafficker in a controlled substance is inadmissible. No conviction
is needed under this provision,40 although the “reason to believe” must have existed at the time
of entry.41 In addition, a person who has aided and abetted drug trafficking is also inadmissible.
Finally, the spouse, son or daughter of a trafficker, who within the last five years, has obtained
any financial or other benefit from the drug activity and who knew or reasonably should have
known of the activity is inadmissible.42

4. Two crimes with an aggregate sentence of five years

A non-citizen who has been convicted of two crimes, regardless of whether either is a
crime of moral turpitude and regardless of whether they arose out of a single scheme of criminal

37
8 U.S.C. §1182(a)(2)(A)(i)(II), §212(a)(2)(A)(i)(II). Controlled substances are defined under 21 U.S.C. §802.
38
See, 8 U.S.C. §1101(a)(43)(C), INA §101(a)(43)(C).
39
8 U.S.C. §1182(h), INA §212(h).
40
Matter of Rico, 16 I&N Dec. 181 (BIA 1977).
41
Matter of Rocha, 20 I&N Dec. 944 (BIA 1995).
42
8 U.S.C. 1182(a)(2)(C), INA §212(a)(2)(C).

6
misconduct, is inadmissible if the aggregate sentences to confinement are at least five years.43
Unlike the moral turpitude inadmissibility ground, this subsection requires a conviction, not an
admission. Although deferred adjudication under the Texas statute is considered a conviction for
immigration purposes, it does not include a “sentence to confinement” that is subsequently
suspended.44 On the other hand, a suspended sentence with community supervision is considered
a term of confinement. Thus, for example, a person who committed two non-turpitudinous
crimes and received five years community supervision (probation) would be inadmissible, but
would not be if he received two sentences of deferred adjudication.

5. Prostitution

A non-citizen coming to the U.S. to engage in prostitution or who has engaged in

prostitution in the last ten years before filing for adjustment of status, admission or a visa is
inadmissible. This subsection also bars persons who have procured or attempted to procure
prostitutes and persons who are coming to the U.S. to engage in “any other unlawful
commercialized vice.”45 The prohibition against “procurers” does not extend to a person who is
arrested for soliciting or having sex with a prostitute.46 A waiver is also available for
prostitution.47

6. Serious crimes and immunity

A non-citizen who has committed a “serious criminal offense” in the U.S. and has been
given immunity from prosecution, who departs from the U.S. because of such immunity and
offense, and who has not subsequently submitted to the jurisdiction of a U.S. court is
inadmissible.48 A serious criminal offense includes a felony, crime of violence, and crime of
reckless driving or driving while under the influence of drugs or alcohol if the offense resulted in
injury to another. This provision is directed, inter alia, to foreigners who assert diplomatic
immunity.49

7. Religious freedom persecutors

A foreign government official and his or her spouse and children who within the
preceding 24 months (before applying for admission, adjustment of status or a visa) were
responsible for or carried out severe violations of religious freedom as defined under provisions
of federal law are inadmissible.50

43
8 U.S.C. §1182(a)(2)(B), INA §212(a)(2)(B). Compare with the multiple criminal grounds of deportation which
are limited to crimes of moral turpitude not arising out of a single scheme of criminal misconduct, although there is
no minimum sentence required. See discussion, infra.
44
8 U.S.C. §1101(a)(48)(A), INA §101(a)(48)(A).
45
8 U.S.C. §1182(a)(2)(D), INA §212(a)(2)(D).
46
Matter of Gonzalez-Zoquiapan, 24 I&N Dec 549 (BIA 2008); Matter of R-, 6 I&N Dec. 444 (BIA 1954);
47
8 U.S.C. §1182(h), INA §212(a)(h).
48
8 U.S.C. §1182(a)(2)(E), INA §212(a)(2)(E).
49
8 U.S.C. §1101(h), INA §101(h).
50
8 U.S.C. §1182(a)(2)(G), INA §212(a)(2)(G).

7
 8. Traffickers in persons

A non-citizen who has been designated under federal law to be a trafficker in persons or
whom the consular officer or the Attorney General has reason to believe is or has been an aider
and abetter of a trafficker is inadmissible.51 Additionally, the spouse, son or daughter of such
trafficker, who, within the last five years, has received a financial or other benefit from such
activity and who knew or should have known of the illicit activity, is inadmissible as well.52 The
latter provision does not apply to a son or daughter (defined under the INA as over the age of 21)
who was a child (defined under the INA as under the age of 21) at the time he or she received the
benefit of the illicit trafficking.

9. Money laundering

As added by the USA Patriot Act, a non-citizen who the consular official or Attorney
General knows or has reason to believe has engaged in or who is coming to the U.S. to engage in
certain money laundering offenses is inadmissible.53 Likewise, a person who has aided or abetted
in such offenses is also inadmissible.54

D. Security, Terrorism, Foreign Policy and Persecutors—8 U.S.C. §1182(a)(3)

While the terrorism and security inadmissibility provisions were previously part of the
INA, they were expanded under the USA Patriot Act. The definitions of “terrorist activity” and
“engaging in terrorist activity” were broadened and new grounds of inadmissibility for
representatives of terrorist organizations and their families were added.

A non-citizen who a consular officer or the Attorney General knows or has reason to
believe seeks to enter the U.S. to engage solely, principally or incidentally in espionage,
sabotage, the violation of export laws of U.S. goods, technology or sensitive information, the
overthrow of the U.S. government by force or other unlawful activity, is inadmissible.55

A non-citizen who has engaged in terrorist activity or who the consular officer or the
Attorney General knows or has reason to believe is likely to engage in such activity is
inadmissible. “Terrorist activity” is defined as hijacking or sabotage; seizing, detaining,
threatening to kill or injure a person to compel a government to do or refrain from doing any act;
a violent act upon an internationally protected person as defined under other provisions of federal
law; assassination; the use of biological, chemical, nuclear and explosive weapons and firearms
to endanger the safety or property of others or a threat, attempt or conspiracy to do any of these
acts.56 The term “engage in terrorist activity” includes a broad range of activities including the

51
8 U.S.C. §1182(a)(2)(H)(i), INA §212(a)(2)(H)(i).
52
8 U.S.C. §1182(a)(2)(H)(ii), INA §212(a)(2)(H)(ii).
53
8 U.S.C. §1182(a)(2)(I)(i), INA §212(a)(2)(I)(i).
54
8 U.S.C. §1182(a)(2)(I)(ii), INA §212(a)(2)(I)(ii).
55
8 U.S.C. §1182(a)(3)(A), INA §212(a)(3)(A).
56
8 U.S.C. §1182(a)(3)(B)(iii), INA §212(a)(3)(B)(iii).

8
preparation and gathering of information for a terrorist activity, the solicitation of funds, material
support and individuals for a terrorist activity or organization.57

A non-citizen who is a representative of a foreign terrorist organization or of a political,

social, or other group whose public endorsement of terrorist activity is deemed to undermine
U.S. efforts to fight terrorism is also inadmissible.58 Moreover, a member of a foreign terrorist
organization or an organization which the non-citizen knows or should have known is a terrorist
organization is inadmissible.59 The Secretary of State designates foreign organizations as terrorist
organizations through publication in the federal register.60 Finally, a person who associates with
a terrorist organization and who intends to engage in activities that could endanger U.S. security
or welfare is inadmissible. Note that under this provision membership in the organization is not
required.61

A non-citizen whose entry into the U.S. would have serious adverse foreign policy
consequences is inadmissible. However, an official or candidate for office of a foreign
government may not be denied admission based solely on the person’s beliefs or associations, if
such would be lawful within the U.S.62 A person who is or has been a member of the Communist
or other totalitarian party is inadmissible as well. However, with the end of the Cold War, there
are several exceptions. First, the provision does not apply if the membership in such party was
involuntary, occurred while under the age of 18 or was for the purposes of obtaining employment
or basic living needs. Second, it does not apply if membership in such party ended 2 years before
the date of application for admission, adjustment of status or a visa, or 5 years before such date if
the party is still in control of the government. Third, a waiver is available, based on
humanitarian, public interest or family unity concerns, for a person who seeks permanent
residence who is the parent, spouse, son, daughter, brother or sister of a U.S. citizen, or who is
the spouse, son or daughter of a permanent resident.63

A non-citizen who, during the Nazi period, participated or assisted in the persecution of
others on the basis of race, religion, national origin or political opinion is inadmissible. A person
who has engaged in genocide at any time is also barred from admission.64

E. Public Charge—8 U.S.C. § 1182(a)(4)

A non-citizen who is likely to become a public charge is inadmissible.65 This ground of

inadmissibility arises most frequently when a person applies for permanent residence. The statute
specifically states that age, health, family status, assets, resources and financial status, education

57
8 U.S.C. §1182(a)(3)(B)(iv), INA §212(a)(3)(B)(iv); Matter of S-K, 23 I&N Dec. 936 (BIA 2006).
58
8 U.S.C. §1182(a)(3)(B)(i)(IV), INA §212(a)(3)(B)(i)(IV).
59
8 U.S.C. §1182(a)(3)(B)(i)(V), INA §212(a)(3)(B)(i)(V).
60
Id.; 8 U.S.C. §1189, INA § 219.
61
8 U.S.C. §1182(a)(3)(F), INA §212(a)(3)(F).
62
8 U.S.C. §1182(a)(3)(C), INA §212(a)(3)(C).
63
8 U.S.C. §1182(a)(3)(D), INA §212(a)(3)(D).
64
8 U.S.C. §1182(a)(3)(E), INA §212(a)(3)(E).
65
8 U.S.C. §1182(a)(4), INA §212(a)(4).

9
and skills and any affidavit of support must be considered.66 In addition to these criteria, persons
who seek permanent residence based on one of the family based immigrant categories must
submit a binding, contractual affidavit of support.67 Certain employment based immigrants must
also submit the affidavit.68

The U.S. citizen or permanent resident who has filed the petition for the family member
must execute the affidavit and demonstrate that, based on the size of his/her family (the affiant’s
family) and the sponsored non-citizen and his/her family, he or she can demonstrate income and
assets that are at least 125% over the federal poverty guidelines.69 If the sponsored immigrant has
lived in the household of the sponsor affiant for six months, his or her income may be included
to reach the required 125% level.

The income of other family members who reside in the household of the sponsor may be
considered if the family member pledges his income to the immigrant. One-fifth of the value of
the assets of both the sponsor and the immigrant may also be added in to meet the income
requirements.70 Certain documents, such as the last year’s income tax returns, are generally
required. A joint sponsor may submit an affidavit of support to fulfill the requirement but he or
she must meet the 125% income level based on his/her family size; he or she may not simply add
his/her income to the principal sponsor’s income and affidavit of support to meet the poverty
guidelines. No affidavit of support is required if the non-citizen seeking permanent residence or
her spouse or parent (if the non-citizen is a minor) has 40 qualify quarters of Social Security
contributions.71 Likewise, no affidavit of support is required for a non-immigrant who benefits
from the Child Citizenship Act. Thus, a child under age eighteen who obtains permanent
residency through a U.S. citizen parent does not need an affidavit of support because he or she
will automatically become a citizen upon obtaining permanent residency. 72

By signing the affidavit of support, the sponsor agrees to repay the federal or state
government for any means-tested public benefits received by the sponsored immigrant.73 The
regulations and procedures for affidavits of support are very complex and should be studied
carefully.74

F. Labor Certification and Qualifications for Certain Immigrants—8 U.S.C.

§1182(a)(5)

66
8 U.S.C. §1182(a)(4)(B)(i)(I)-(IV) and (ii), INA §212(a)(4)(B)(i)(I)-(IV) and (ii).
67
8 U.S.C. §1182(a)(4)(C), INA §212(a)(4)(C).
68
Employment based immigrants where the petition is filed by a relative who has a significant (5%) ownership
interest. 8 U.S.C. §1182(a)(4)(D), INA §212(a)(4).
69
8 U.S.C. §1183(a), INA §213(a). The poverty guidelines are published each spring by the Department of Health
and Human Services.
70
See generally, 8 C.F.R. §213a.1 et.seq.
71
8 C.F.R. §213(a)(2)(ii)(C).
72
8 C.F.R. §213(a)(2)(ii)(E).
73
8 U.S.C. §1183(a) and (b), INA §213(a)and(b).
74
See, e.g., 8 C.F.R. §213(a), 62 Fed. Reg. 54346 (Oct.20, 1997) and additional DHS and State Department
memoranda regarding the affidavit of support.

10
 A non-citizen who enters the U.S. as a permanent resident must immigrate through one of
the family-based immigrant or employment categories, the diversity visa program or other
specific permanent residence provisions. In order to obtain an employment based visa, the non-
citizen must generally have an approved labor certification, issued by the Department of Labor.75
In addition, there are special rules of inadmissibility for professional athletes, physicians and
other health care workers who seek to work in the U.S.76

G. Illegal Entrants and Immigration Violators—8 U.S.C. §1182(a)(6)

1. Present without proper admission

A non-citizen who is present in the U.S. without permission or parole or who arrives in
the U.S. at a time or place not designated by the Attorney General is inadmissible.77 “Parole” is
DHS’s permission to enter the U.S for a designated period but it is not considered an
“admission” for other immigration purposes. This provision is one of the most common grounds
of inadmissibility and used to remove (deport) persons from the U.S. who enter the U.S.
illegally.

Battered immigrants and children who qualify for relief under the Violence Against
Women Act (VAWA) provisions of the INA are not subject to this inadmissibility provision if
they can show a substantial connection between the battery or extreme cruelty (requirements for
VAWA eligibility) and the unlawful presence in the U.S.78 If they arrived in the U.S. before
April 1, 1997, they do not need to show the domestic violence connection.79

2. Failure to attend a removal hearing

A non-citizen who fails to appear for a removal hearing without reasonable cause is
inadmissible for five years after his or her subsequent departure or removal.80 This provision is
very harsh because the case law on “reasonable cause” for failure to appear is very restrictive and
because the non-citizen is barred from any relief until he or she leaves and waits outside the
country for five years. Note however that the language “reasonable cause” is arguably a lesser
standard than “exceptional circumstances,” the statutory language required to obtain a motion to
reopen an in absentia order of removal.81 The bar applies only to removal proceedings, initiated
under IIRAIRA, not to earlier proceedings under the previous law and only if the person departs
or is removed.82 There are no waivers for this provision.

3. Fraud or misrepresentation

75
8 U.S.C. §1182(a)(5)(A)(i), INA §212(a)(5) (A)(i).
76
8 U.S.C. §1182(a)(5)(A)(iii) and (B); INA §212(a)(5)(A)(iii) and (B); 8 U.S.C. §1182(a)(5)(B) and (C); INA
§212(a)(5)(B) and (C).
77
8 U.S.C. §1182(a)(6)(A)(i), INA §212(a)(6)(A)(i).
78
8 U.S.C. §1182(a)(6)(A)(ii), INA §212(a)(6)(A)(ii).
79
IIRAIRA, §301(c)(2).
80
8 U.S.C. §1182(a)(6)(B), INA §212(a)(6)(B).
81
Compare 8 U.S.C. §1229(a)(5)(C) and INA §240(a)(5)(C) with 8 U.S.C. §1229(e)(1), INA §240(e)(1).
82
June 17, 1997, INS Memorandum of Acting Executive Associate Commissioner Paul Virtue.

11
 A non-citizen who has obtained or seeks to obtain a visa, other documentation,
admission or other benefit under the INA by fraud or by a material misrepresentation is
inadmissible.83 It does not matter that the misrepresentation would not have resulted in
ineligibility for the visa, admission or benefit. Rather, a misrepresentation is material if it is
willful and cuts off a legitimate line of inquiry.84

A limited waiver of this provision is available. A person seeking admission, who is the
spouse or the son or daughter of a U.S. citizen or permanent resident or who is a VAWA
applicant and who can establish extreme hardship to such qualifying relative, is eligible for the
waiver.85 “Extreme hardship” is an immigration term of art and a high standard to meet.86 Note
that the waiver is no longer available, as it was before IIRAIRA, to persons who are parents of a
U.S. citizen or permanent resident child.

4. False claim to U.S. citizenship

A non-citizen, who after Sept. 30, 1996, makes a false claim to U.S. citizenship for any
purpose or benefit under the INA or any other federal or state law is inadmissible.87 This
provision is very broad and adversely affects many undocumented immigrants who have been
raised for many years in the U.S. and may very well consider or think that they are U.S. citizens.
There is only a limited exception to this provision for a person who has resided in the U.S. as a
permanent resident prior to the age of 16, whose natural or adoptive parents were U.S. citizens,
and who reasonably believed that he or she was a citizen.88 For all other persons, the ground of
inadmissibility is permanent.

There is little reported case law on this section. An argument can be made that checking
the box marked “citizen or national” on an I-9 form is not a false claim to citizenship as
“national” is not synonymous with “citizen.”89

5. Stowaways

A person who is a stowaway is inadmissible.90

6. Smugglers

A non-citizen who has knowingly encouraged, assisted, aided or abetted another alien to
enter or try to enter the U.S. is inadmissible.91 This inadmissibility ground does not require a

83
8 U.S.C. §1182(a)(6)(C)(i), INA §212(a)(6)(C)(i).
84
Kungys v. U.S., 108 S.Ct. 1537 (1988).
85
8 U.S.C. §1182(i), INA §212(i).
86
See, e.g., Matter of Cervantes, 22 I&N Dec. 560(BIA 1999).
87
8 U.S.C. §1182(a)(6)(C)(ii), INA §212(a)(6)(C)(ii).
88
8 U.S.C. §1182(a)(6)(C)(ii)(II), INA §212(a)(6)(C)(ii)(II).
89
U.S. v. Karaouni, 370 F.3d 1139 (9th Cir. 2004), In Re Oduor, 2005 WL 1104203 (BIA). But see, Ateka v.
Ashcroft, 384 F.3d 954 (8th Cir. 2004); In re Ankomah, 2006 WL 448200 (BIA).
90
8 U.S.C. §1182(a)(6)(D), INA §212(a)(6)(D).

12
conviction nor does the smuggling have to be for profit or gain. This provision does not apply to
a person who is a “family unity” immigrant and who has smuggled only his/her spouse, parent,
son or daughter.92 A waiver is available to assure family unity or for humanitarian or public
interest reasons for other immigrants seeking permanent residence if such immigrant has only
smuggled his/her spouse, parent, son or daughter and no other individual.93

7. Document fraud

A non-citizen who has a final order of document fraud, a civil penalty imposed by an
administrative law judge, is inadmissible.94 Note that the use of false documents, although it may
raise issues of the admission of a crime of moral turpitude, is not an independent ground of
inadmissibility, absent an order of document fraud.95 A waiver is available if the non-citizen can
establish that use of false documents was only to support or assist his or her spouse or child and
no other individual.96

8. Student visa abusers 97

A non-citizen who enters on an F-1 student visa to attend private school and who
transfers to a public school or who enters on a F-1 visa to attend public school for more than 12
months without reimbursing the school district for tuition is inadmissible until he or she remains
outside the U.S. for five years.98 This provision only applies to students who enter on a student
visa, not to undocumented students or others who attend public school without such visa. The
latter are entitled to attend public school under the Supreme Court’s decision in Plyer v. Doe.

H. Documentation requirements—8 U.S.C. §1182(a)(7)

A non-citizen who is not in possession of a valid immigrant visa, or other document to

enter the U.S. is inadmissible.99 This provision is used for a person whose visa is irregular or
invalid or a person who attempts to enter as non-immigrant, but whom DHS suspects is coming
to work or live in the U.S. There is a very limited waiver for persons whose status changed
between the time of the issuance of the immigrant visa (permanent residence) and their actual
entry into the U.S.100 Non-immigrants are inadmissible if they do not have a passport that is valid
for six months beyond the date of authorized stay in the U.S. or do not have a valid non-
91
8 U.S.C. §1182(a)(6)(E), INA §212(a)(6)(E).
92
8 U.S.C. §1182(a)(6)(E)(ii), INA §212 (a)(6)(E)(ii), §301(b)(1) of IMMACT 90. Family unity applies to family
members whose qualifying relatives immigrated under the legalization (amnesty) or special agricultural worker
(SAW) programs of the late eighties.
93
8 U.S.C. §1182(d)(11), INA §212(d)(11).
94
8 U.S.C. §1182(a)(6)(F), INA §212(a)(6)(F).
95
ICE has argued with mixed success that the use of false documents is a crime of moral turpitude. Practitioners
should not concede this issue. Beltran-Tirado v. INS, 213 F.3d 1179 (9th Cir., 2000)(holding that false use of a social
security card is not a crime of moral turpitude.
96
8 U.S.C. §1227(a)(3)(C)(ii), INA §237(a)(3)(C)(ii).
97
The wording in IIRAIRA is indicative of its restrictive nature, i.e., student “abusers.”
98
8 U.S.C. §1182(a)(6)(G), INA §212(a)(6)(G); 8 U.S.C. §1184(l), INA §214(l).
99
8 U.S.C. §1182(a)(7)(A)(i), INA §212(a)(7)(A)(i).
100
8 U.S.C. §1182(k), INA §212(k).

13
immigrant visa at all.101 There are also special provisions in this section of the statute for persons
eligible to enter the U.S. without a visa (the visa waiver program and persons from Guam).

I. Ineligibility for Citizenship—8 U.S.C. §1182(a)(8)

A non-citizen who is permanently ineligible for citizenship is inadmissible. This

provision applies to a person who has requested an exemption or discharge from military service
based on alienage. It does not extend to a non-citizen that is barred from citizenship for other
reasons, such a conviction of an aggravated felony. 102

A person who has left the U.S to avoid military service during a time or war or national
emergency, is also inadmissible unless the person is a non-immigrant and seeks to re-enter as a
non-immigrant. Persons who left the U.S. during the Vietnam War are exempt from this
provision.103

J. Aliens Previously Removed and Unlawfully Present—8 U.S.C. §1182(a)(9)

1. Persons previously removed

A non-citizen who has been ordered removed is barred from reentry into the U.S. unless
he or she remains outside the U.S. for a requisite number of years, depending on the type of and
reasons for the removal. A person who is ordered removed under expedited removal at the border
or who is removed as an arriving alien at the border or port of entry is barred for five years. If
such person is subjected to a second removal order, he or she is barred for 20 years. If he or she
has been convicted of an aggravated felony, the bar is permanent.104

A non-citizen who is ordered removed under current law or deported under previous law
or who departs the U.S. while such order is outstanding is inadmissible for 10 years after such
departure or 20 years in the case of a second removal. A non-citizen who has been convicted of
an aggravated felony and removed is permanently inadmissible.105

Persons who have been previously removed or deported are also subject to reinstatement
of removal under INA §241(a)(5), which authorizes ICE, subject to very limited exceptions, to
simply reinstate the previous order and remove the person again from the U.S. Such person is not
eligible for a removal hearing and cannot apply for relief, despite, for example, his or her
eligibility for adjustment of status based on a family member.

However, a person who has been previously removed and who has not remained outside
the U.S. for the requisite period of time may apply for permission to reenter after deportation.

101
8 U.S.C. §1182(a)(7)(B), INA §212(a)(7)(B).
102
8 U.S.C. §1182(a)(8)(A), INA §212(a)(8)(A); Matter of Kanga, 22 I&N Dec. 1206 (BIA 2000).
103
8 U.S.C. §1182(a)(8)(B), INA §212(a)(8)(B). President Carter issued a pardon and executive order for Vietnam
War era departures.
104
8 U.S.C. §1182(a)(9)(A)(i), INA §212(a)(9)(A)(i).
105
8 U.S.C. §1182(a)(9)(A)(ii), INA §212(a)(9)(A)(ii).

14
This discretionary permission is even available to persons who are permanently barred as
aggravated felons. However, it is very difficult to obtain permission to reapply for aggravated
felons. Additionally, aggravated felons generally are subject to other grounds of inadmissibility
as well.106

2. Unlawful presence

A non-citizen who is unlawfully present and who departs and seeks to re-enter the U.S. is
inadmissible. Note that this provision includes persons who have been unlawfully in the U.S. and
leave voluntarily as well as those removed.107 The rules regarding what constitutes unlawful
presence are very complicated and beyond the scope of this introductory article. There are still
no regulations regarding unlawful presence, although this provision was added by the 1996
IIRAIRA legislation. Instead, DHS has issued a series of memoranda and written guidance on
the interpretation of unlawful presence. The practitioner should carefully review these guidelines
before advising a client who has been unlawfully present to depart the U.S., as the bars will then
apply.

This ground of inadmissibility is popularly known as the “3 and 10 year bars.” A non-
citizen who is unlawfully present in the U.S. for more than 180 days but less than one year, and
who voluntarily departs from the U.S. before proceedings are initiated against him or her, is
inadmissible for 3 years. Note that the person must depart the U.S. voluntarily in order for the
bar to apply. Thus a person who has been in the U.S. for more than 180 days, but has not left
since the enactment of IIRAIRA is not subject to this bar.108

A non-citizen who is unlawfully present for more than one year and who departs either
voluntarily or who is removed is inadmissible for 10 years. Again, this subsection also requires
an actual departure or removal from the country.109 The departure need not be pursuant to a
removal order or a voluntary departure order in lieu of removal. Any departure triggers the 10
year bar.110

Both provisions apply only to unlawful presence after April 1, 1997 and to consecutive
days of unlawful presence.111 The unlawful presence must precede the departure.112

The 3 and 10 year bars do not apply to any period of time during which the non-citizen
was under the age of 18 or during which he or she was a family unity beneficiary (certain non-
citizens whose relatives obtained permanent residence under the legalization or special
agricultural workers program in the eighties, commonly known as amnesty). Similarly, the bars
do not apply to an asylum applicant, so long as he or she has never worked without

106
8 U.S.C. §1182(a)(9)(A)(iii), INA §212(a)(9)(A)(ii).
107
8 U.S.C. §1182(a)(9)(B), INA §212(a)(9)(B).
108
8 U.S.C. §1182(a)(9)(B)(i)(I), INA §212(a)(9)(B)(i)(I).
109
8 U.S.C. §1182(a)(9)(B)(i)(II), INA §212(a)(9)(B)(i)(II).
110
Matter of Lemus, 24 I&N Dec. 373 (BIA 2007).
111
Compare with the provisions regarding unlawful reentry after prior unlawful presence, discussed infra, which
includes aggregate, rather than consecutive, periods of time.
112
Matter of Rodarte, 23 I&N Dec. 905 (BIA 2006).

15
authorization, and to VAWA applicants who can show a substantial connection between
unlawful presence and the abuse.113 Unlawful presence does not accrue during the period of
voluntary departure, although it does accrue while court proceedings are pending, unless another
exception applies. There is no accrual during the pendency of a timely filed, non-frivolous
application for a change or extension or stay, so long as the applicant has not engaged in
unauthorized employment.114

3. Unlawful presence after previous immigration violations

A non-citizen who has been unlawfully present in the U.S. in the aggregate of one year
or more or who has been removed or deported and enters or attempts to enter the U.S. without
being admitted is inadmissible.115 The illegal reentry and unlawful presence must have occurred
after April 1, 1997. There is no waiver of this provision until the non-citizen has remained
outside the U.S. for ten years. After that period, he or she may apply for permission to reapply
for admission after removal, a discretionary determination of DHS.116 Nevertheless, a person
who has been removed and reenters without admission is subject to this provision, even if she
has received permission to reapply.117 A VAWA applicant may apply for a waiver without
waiting the ten year period, if she can establish a substantial connection between the abuse and
the unlawful presence, removal or illegal reentry.118

Section 245(i), which allows for adjustment of status for persons who enter illegally and
are in the U.S. without permission or parole, does not trump the unlawful presence grounds of
inadmissibility under §212(a)(9).119

K. Miscellaneous Grounds Including Unlawful Voters—8 U.S.C. §1182(a) (10)

1. Polygamists

A non-citizen who is coming to the U.S. to practice polygamy is inadmissible.120

2. Guardians required to accompany helpless alien

See, discussion, supra, regarding health grounds of inadmissibility.

113
8 U.S.C. §1182(a)(9)(B)(iii), INA §212(a)(9)(B)(iii).
114
8 U.S.C. §1182(a)(9)(B)(iv), INA §212(a)(9)(B)(iv). The ICE extended the period beyond the statutory period of
120 days in recognition of its inability to adjudicate applications within this time frame. Memorandum from Michael
A. Pearson, Executive Associate Commissioner, "Section 222(g) of the Immigration and Nationality Act,"
HQ70/12-P IN 00-14 (March 3, 2000).
115
8 U.S.C. §1182(a)(9)(C), INA §212(a)(9)(C).
116
8 U.S.C. §1182(a)(9)(C)(ii), INA §212(a)(9)(C)(ii).
117
Matter of T-G, 23 I&N Dec. 866 (BIA 2006).
118
8 U.S.C. §1182(a)(9)(C)(ii), INA §212(a)(9)(C)(ii).
119
Matter of Briones, 24 I. & N. Dec. 355 (BIA 2007); Matter of Lemus, 24 I&N Dec. 373 (BIA 2007). But see,
e.g., Padilla-Caldera v. Gonzales, 453 F.3d 1237 (10th Cir. 2005).
120
8 U.S.C. §1182(a)(10)(A), INA §212(a)(10)(A).

16
 3. International child abduction

A non-citizen who retains or colludes in retaining a child outside the U.S. in violation of
a U.S. court custody order is inadmissible.121

4. Unlawful voters

A non-citizen who votes in any federal, state or local election is inadmissible. Analogous
to the exception for false claims to U.S. citizenship, a person who entered the U.S. as a
permanent resident before age 16, whose parents or adoptive parents were U.S. citizens and who
reasonably believed at the time of the violation that he or she was a U.S. citizen is not barred
under this ground.122 Practitioners should caution permanent resident clients about this provision
because voter registration cards are often sent out based on driver license information.

5. Renunciation of citizenship

A former U.S. citizen who renounces U.S. citizenship to avoid taxes is inadmissible.123

IV. Deportation Grounds

Persons who have been admitted to the U.S. in any category may only be removed from
the U.S. under the grounds of deportability.124 Generally, although not always, the deportation
grounds are narrower than the inadmissibility grounds. For example, while criminal conduct and
admissions may form the basis for inadmissibility, most criminal deportation grounds require an
actual conviction.125

Cancellation of removal is available to certain permanent residents facing deportation,

unless they have been convicted of an aggravated felony.126 Eligibility for cancellation is beyond
the scope of this article. Others waivers may apply as well.

A. Inadmissibility at the Time of Entry or Violation of Status—8 U.S.C.

§1227(a)(1)

1. Inadmissibility at the time of entry

A non-citizen who is admitted, but who should not have been so admitted because he or
she was inadmissible at the time of entry127 or adjustment of status, is deportable.128 For

121
8 U.S.C. §1182(a)(10)(C), INA §212(a)(10)(C).
122
8 U.S.C. §1182(a)(10)(D), INA §212(a)(10)(D).
123
8 U.S.C. §1182(a)(10)(E), INA §212(a)(10)(E).
124
8 U.S.C. §1227, INA §237.
125
Compare, e.g. 8 U.S.C. §1182(a)(2)(A)(i), INA §212(a)(2)(A)(i) with 8 U.S.C. §1227(a)(2)(A)(i), INA
§237(a)(2)(A)(i).
126
8 U.S.C. §1229(a), INA §240(a). Non-citizens with pre-IIRAIRA convictions are eligible for old §212(c) relief.
INS v. St. Cyr, 121 S. Ct. 2271 (2001).

17
example, a person who is admitted as a permanent resident to the U.S. as the unmarried son of a
U.S. citizen, but who was actually married at the time of admission is “inadmissible at the time
of entry.” Since the non-citizen has already been admitted to the country, the grounds of
deportation, not inadmissibility, apply.

A waiver is available for misrepresentations that lead to this deportation charge if the
non-citizen is the spouse, parent, son or daughter of a U.S. citizen or permanent resident or is a
VAWA applicant.129

1. Violation of the terms of a non-immigrant visa

A non-immigrant who fails to maintain such status or who violates the conditions of such
status is deportable.130 Thus, a student admitted on an F-1 non-immigrant student visa who either
drops out of school or who works without permission is deportable under this subsection.
Persons who are admitted under a §212(g) waiver for health related reasons who fail to comply
with the conditions set by HHS for such waiver are also deportable.131

2. Marriage fraud

A non-citizen is considered to be deportable for having procured a visa by fraud if he or

she obtains permanent residence on the basis of a marriage entered into less than two years
before obtaining such status and which, within two years thereafter, is legally terminated.
Likewise, a non-citizen is deportable if, in the opinion of the Attorney General, he or she fails or
refuses to comply with the marital agreement.132

3. Termination of conditional residence

Certain permanent residents are initially granted conditional permanent residence, if they
immigrate based on a marriage to a U.S. citizen or permanent resident that is of less than two
years duration at time of the approval of the residence application. An “alien entrepreneur,” who
immigrates based on a sizeable investment also receives conditional residence. After two years in
such status, the conditional resident must take certain steps to remove the conditions of
permanent residence. Those who fail to do so are deportable because their conditional residence
has been terminated.133

4. Smuggling

127
Generally, IIRAIRA changed the terminology of “entry” to “admission”. However, the term “entry” is still found
in very limited sections of the statute, e.g. the smuggling deportation ground. Whether the variance in terminology is
significant depends on the particular situation and whether under rules of statutory construction, the two terms mean
something different.
128
8 U.S.C. §1227(a)(1)(A), INA §237(a)(1)(A).
129
8 U.S.C. §1227(a)(1)(H), INA §237(a)(1)(H).
130
8 U.S.C. §1227(a)(1)(C), INA §237(a)(1)(C).
131
8 U.S.C. §1227(a)(1)(C)(ii), INA §237(a)(1)(c)(ii).
132
8 U.S.C. §1227(a)(1)(G), INA §237(a)(1)(G).
133
8 U.S.C. §1227(a)(1)(D), INA §237(a)(1)(D).

18
 A non-citizen, who prior to the date of entry,134 at the time of any entry or within five
years of entry, has knowingly encouraged, assisted, aided or abetted another alien to enter or try
to enter the U.S. in violation of law in deportable.135 This ground of deportation does not require
a conviction nor does the smuggling have to be for profit or gain. Note that the smuggling must
have occurred prior to or at the time of entry, or within five years of entry. Thus, for example, a
non-citizen, whose only departures in the last five years have been to visit family members,
would not have made an "admission" or "entry" during this period of time. If he committed the
smuggling offense without ever leaving the U.S., he would not have made an "entry" within the
last five years.136 On the other hand, if he departed to make arrangements for the smuggling
offense, upon return, he would make an admission/entry upon return and would be subject to this
ground of deportation, as having committed the offense within five years of his last entry.

A conviction for alien smuggling section of 8 U.S.C. §1324 is not only a ground of
deportation under this subsection but also under the aggravated felony deportation provision. 137

This provision does not apply to a “family unity” immigrant who has smuggled only
his/her spouse, parent, son or daughter.138 A waiver is available to assure family unity or for
humanitarian or public interest reasons for other immigrants seeking permanent residence if such
immigrant has only smuggled his/her spouse, parent, son or daughter and no other individual.139

B. Criminal Grounds—8 U.S.C. §1229(a)(2)

Deportability for offenses which require a conviction are determined by the record of
conviction and the minimum elements of the crime as previously discussed. The doctrine of
divisibility applies and the actual facts of the offense are irrelevant.

1. Crimes of moral turpitude

A non-citizen who is convicted of a crime of moral turpitude committed within five years
of admission for which a sentence of one year or more may be imposed is deportable.140 Unlike
the crime of moral turpitude inadmissibility ground, the provision requires an actual conviction.
This deportation ground is tied to the non-citizen's last “admission.”141 If the non-citizen has not

134
Here the statutory language was not modified to “admission.” Government attorneys have argued with mixed
success that “entry” can be defined more broadly than “admission.” There is no precedent decision on this issue.
135
8 U.S.C. §1227(a)(1)(E), INA §237(a)(1)(E).
136
See footnote 134.
137
See discussion, infra. However, a conviction for aiding and abetting the violation of 8 U.S.C. §1325 (illegal
entry) is not an aggravated felony.
138
8 U.S.C. §1227 (a)(6)(E)(ii), INA §237(a)(6)(E)(ii), §301(b)(1) of IMMACT 90. Family unity applies to family
members whose qualifying relatives immigrated under the legalization (amnesty) or special agricultural worker
(SAW) programs of the late eighties.
139
8 U.S.C. §1182(d)(11), INA §212(d)(11).
140
8 U.S.C. §1227(a)(2)(A)(i), INA §237(a)(2)(A)(i).
141
See discussion, supra, regarding the definition of "admission."

19
made an admission, as defined under the statute, in the last five years, he/she is not deportable,
even though convicted of a crime of moral turpitude. Note that this deportation ground applies
even if a non-citizen receives a sentence of less than one year, if he or she could have received a
sentence of one year or more.

A non-citizen who has been convicted at any time of two crimes of moral turpitude, not
arising out of a single scheme of criminal misconduct, is deportable.142 This provision does not
require a minimum potential or actual sentence. In addition, it is not linked to the last admission
to the U.S. “Single scheme” has been defined narrowly by the Board of Immigration Appeals,
although federal court decisions are slightly more favorable in finding that multiple crimes are
not part of a single scheme.143

2. Aggravated felonies

A non-citizen convicted of an aggravated felony after admission is deportable.144

Because the statute requires that the offense be committed after admission, there is no
comparable aggravated felony ground of inadmissibility. A person who has never been admitted
cannot be charged with deportability as an aggravated felon, although conviction for an
aggravated felony has other severe consequences in relation to, for example, reentry after
deportation. Many criminal offenses encompass other deportation grounds, in addition to the
aggravated felony charge.

IIRAIRA greatly expanded the crimes that are classified as aggravated felonies. The term
“aggravated felony” is a misnomer because the definition includes some misdemeanors and
many offenses that are not considered “aggravated” under state law. State felony simple
possession drug convictions are no longer classified as aggravated felonies because they are
misdemeanors under federal law.145 In the 5th Circuit, a second offense for drug possession is
considered an aggravated felony regardless of whether the non-citizen was convicted under a
state recidivist statute.146 All aggravated felonies require a conviction, although deferred
adjudication under Texas law is considered a conviction for immigration purposes.147 Some
offenses are included in the definition of aggravated felony regardless of the sentence imposed
such as delivery of a controlled substance and sexual abuse of a minor. Other aggravated
felonies, such as theft and crimes of violence, require a one-year sentence to incarceration,
regardless of the length of suspension of the sentence. Crimes such as fraud and money
laundering are based on the amount of money involved. It is very important to review the
aggravated felony definitions carefully to respond to this charge of deportation.

3. High speed flight

142
8 U.S.C. §1227(a)(2)(A)(ii), INA §237(a)(2)(A)(ii).
143
Compare Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992) with Okoro v. INS, 125 F.3d 920, 926 (5th Cir. 1997).
144
8 U.S.C. §1227(a)(2)(iii), INA § 237(a)(2)(iii); 8 U.S.C. §1101(a)(43), INA §101(a)(43).
145
Lopez v. Gonzales, 549 U.S. 47 (2006).
146
Matter of Carachurri-Rosendo, 24 I&N Dec. 382 (BIA 2007); U.S. v. Cepeda-Rios, 530 F.3d 333 (5th Cir. 2008)
147
8 U.S.C. §1101(a)(43) and (48), INA §101(a)(43) and (48).

20
 A non-citizen who is convicted under federal law of high speed flight from an
immigration checkpoint is deportable.148

4. Drug convictions

A non-citizen who is convicted of a crime relating to a controlled substance as defined

under federal law, other than 30 grams or less of marijuana, is deportable.149 The drug must be
one encompassed by federal law. This provision includes state drug offenses and attempts and
conspiracy to commit such offenses. Unlike the inadmissibility ground, a conviction is required.

5. Drug abusers and addicts

See, discussion of drug abuse and addiction previously discussed as grounds of

inadmissibility. This provision requires the abuse or addiction to have occurred after
admission.150

6. Firearms offenses

A non-citizen is deportable for a violation of any law relating to purchasing, selling, or

possessing a firearm as defined under the federal statute, committed after admission.151 The
Texas unlawfully carrying a weapon statute is broader than the federal statute and includes
weapons not included under the federal statute. If it is not clear from the record of conviction that
the weapon was encompassed under the federal definition, deportability cannot be established. A
conviction for trafficking in firearms and other weapons offenses related to federal crimes is an
aggravated felony as well.

7. Miscellaneous crimes

A non-citizen convicted of offenses under federal statutes relating to espionage, sabotage,

and other listed crimes is deportable.152

8. Domestic violence crimes, stalking, violation of a protective order and

crimes against children

A non-citizen who after admission is convicted, after September 30, 1996, of a crime of
domestic violence is deportable.153 “Crime of violence” is defined under 18 U.S.C. §16. A
“crime of violence” with a one year sentence is also an aggravated felony. Notably, the Fifth
Circuit held that family violence assault under Tex. Pen. Code §22.01 is not a crime of violence,
thus limiting deportation charges under this provision.154
148
8 U.S.C. §1227(a)(2)(A)(iv), INA §1227(a)(2)(A)(iv).
149
8 U.S.C. §1227(a)(2)(B), INA §237(a)(2)(B). Controlled substances are defined under 21 U.S.C. §802.
150
8 U.S.C. §1227(a)(2)(B)(ii), INA §237(a)(2)(B)(ii).
151
8 U.S.C. §1227(a)(2)(C), INA §237(a)(2)(C).
152
8 U.S.C. §1229(a)(2)(D), INA §237(a)(2)(D).
153
8 U.S.C. §1229(a)(2)(E)(i), INA §237(a)(2)(E)(i).
154
U.S. v. Villegas-Hernandez, 468 F.3d 874 (5th Cir. 2006).

21
 The definition of a domestic crime of violence includes offenses against a current or
former spouse, an individual with whom the person shares a child, an individual with whom the
person cohabits or has cohabitated as a spouse, an individual similarly situated as a spouse under
state family violence laws or any other individual protected under the domestic or family
violence laws of the jurisdiction.155

Crimes of child abuse, child neglect, child abandonment and stalking are also deportable
offenses under this provision. The term “crime of child abuse” means any offense involving an
intentional, knowing, reckless, or criminally negligent act or omission that constitutes
maltreatment of a person under 18 years old or that impairs such a person’s physical or mental
well-being, including sexual abuse or exploitation.156

A non-citizen who violates a protective order issued is deportable if the court determines
that he or she has engaged in conduct that violates that portion of the protective order designed to
protect against credible threats of violence, repeated harassment or bodily injury.157 Based on the
plain language of the statute, it is the domestic or state court, not the immigration court, that must
make the finding that the violation of the protective order involved the portions related to
protection against credible threats of violence, repeated harassment or bodily injury.

There is a limited waiver of this ground of deportation for victims of domestic

violence.158

C. Failure to register and false documents

1. Change of address

A non-citizen who fails to report his or her change of address to the DHS within ten days
of such change is deportable. This provision had not been enforced for many years. 159 However,
in the aftermath of September 11, the Attorney General has used this deportation ground
selectively.

2. False documents

Non-citizens who have been convicted under 18 U.S.C. §1546, relating to fraud and
misuse of visas, and other miscellaneous crimes, are deportable.160

3. Document fraud

155
Id.
156
Matter of Velazquez-Herrera, 24 I&N Dec. 503 (BIA 2008).
157
8 U.S.C. §1229(a)(2)(E)(ii), INA §237(a)(2)(E)(ii).
158
8 U.S.C. §1229(a)(7), INA §237(a)(7).
159
8 U.S.C. §1227(a)(3), INA §237(a)(3).
160
8 U.S.C. §1227(a)(3)(B), INA §212 (a)(3)(B).

22
 This provision is identical to the inadmissibility ground based on a final order of
document fraud.161 The same waiver also exists.

4. False claim to U.S. citizenship

This provision is identical to the ground of inadmissibility previously discussed.162 It

applies only to false claims to U.S. citizenship made after September 30, 1996, the date of
enactment of IIRAIRA. The same limited exception is available for persons who obtained
permanent residence before age 16, whose parents were citizens, and who reasonably believed he
or she was a citizen.

C. Security Grounds—8 U.S.C. §1227(a)(4)

The security, foreign policy and Nazi persecution deportation grounds are similar to the
inadmissibility provisions.

D. Public Charge—8 U.S.C. §1227(a)(5)

A non-citizen who within five years of the date of entry becomes a public charge for
reasons not affirmatively shown to have arisen since entry is deportable.163 Under IIRAIRA,
most non-citizens who entered after the passage of the new law are barred from receipt of means-
tested benefits for five years after immigrating.

E. Unlawful Voters—8 U.S.C. §1227(a)(6)

This ground of deportability is identical to the ground of inadmissibility for unlawful

voting.

161
8 U.S.C. §1227(a)(3)(C), INA §237(a)(3)(C).
162
8 U.S.C. §1227(a)(3)(D)(i), INA §237(a)(3)(D)(i).
163
Note that this is another section of the Act in which the term "entry" was not changed to "admission."

23
 Grounds of Inadmissibility &
Deportability and Challenges in
Removal Proceedings
Lee Teran

Inadmissibility vs. Deportability

„ INA §212(a) „ INA §237(a)
‰ Applicants for admission at
port of entry ‰ Non citizens admitted,
Non-citizens
‰ Applicants for visa, including permanent
adjustment of status residents, non-
‰ Legal residents returning immigrants
from abroad under INA ‰ Grounds of
§101(a)(13)(C)
inadmissibility included
‰ Burden or proof, INA
§240(c)(2) ‰ Burden of proof, INA
„ Applicant has burden to §240(c)(3)
§ ( )( )
prove “clearly and beyond „ DHS has burden to
doubt entitled to be
admitted” prove deportability by
“clear and convincing
evidence”

1
Returning Legal Resident:
Exceptions Under INA §101(a)(13)(C)
„ (i) abandoned status
„ (ii) absent from U
U.S.S
continuously for 180
days
„ (iii) engaged in illegal
activity after departure
„ (iv) departed U.S. while
under legal process
(removal, extradition)
„ (v) has committed an
offense listed in INA
§212(a)(2) (crimes of
moral turpitude,
multiple crimes, drug
offenses, prostitution,
trafficking in persons)
„ (vi) has never been
admitted or is
attempting illegal entry

Convictions

„ Defined at INA §101(a)(48)(A)

‰ Plea of g
guilt, nolo, or admission of facts; and p
punishment,
penalty or restraint on liberty
‰ Texas deferred adjudication
„ Juvenile delinquency
„ Pre-trial diversion
„ Vacated convictions
‰ Matter of Chavez, 24 I&N Dec. 272 (BIA 2007)
„ Pardons
‰ INA §237(a)(2)(A)(5)
„ Pardons for crimes of moral turpitude, aggravated felonies,
high speed flight

2
Sentences

„ Defined at INA §101(a)(48)(B)

‰ Regardless
R dl off suspension
i off imposition
i iti or
execution
„ Sentence to term of imprisonment
‰ Texas deferred adjudication
„ Sentence which may be imposed

Rules of Statutory Construction

„ Language of the statute, not the conduct of

the respondent
‰ Categorical and modified categorical approach
‰ Application to elements considered outside the
qualifying conviction
„ Generic and model crimes
„ “Described in”, “defined in”, and “related to”

3
Categories of Inadmissibility
INA §212(a)
„ (1) Health
„ (2) Crimes
„ (3) Security
„ (4) Public charge
„ (5) Labor certification
„ (6) Illegal entrants and
immigration violators
„ (7) Documentation
„ (8) Ineligible for
citizenship
„ (9) Non-citizens
previously removed
„ (10) Miscellaneous
grounds

Summary of Common Crime-Related

Grounds of Inadmissibility
„ Crimes of moral turpitude
„ Two or more convictions for any offenses
with aggregated 5 year sentences to
confinement
„ Controlled substances offenses
„ Prostitution and commercialized vice
„ Federal immigration enforcement crimes

4
Crimes of Moral Turpitude

„ INA §212(a)(2)(A)(i)(I)
‰ Conviction
C i ti off or admission
d i i tto ““a crime
i off morall
turpitude…or any attempt to conspiracy to commit
such a crime”
„ INA §212(a)(2)(A)(ii)
‰ Exceptions
„ Petty
P tt offense
ff
„ Crime committed by alien under 18

Controlled Substances Offenses

„ INA §212(a)(2)(A)(i)(II)
‰ Conviction of or admission to “aa violation of (or a
conspiracy or attempt to violate) any law or
regulation…relating to a controlled substance (as
defined in section 802 of Title 21)”
„ INA §212(a)(2)(C)(i)
‰ Non-citizen who the government “knows or has
reason to
t b
believe
li iis or h
has b
been an illi
illicit
it ttrafficker
ffi k
in any controlled substance or any listed chemical
(as defined in section 802 of title 21)”

5
Multiple Convictions

„ INA §212(a)(2)(B)
‰ Two or more convictions
T i ti ““regardless
dl whether
h th ththe
offenses involved moral turpitude, for which the
aggregate sentences to confinement were 5 years
or more”

Non-Citizens Previously Removed

„ INA §212(a)(9)(A)
‰ Non citizen previously removed
Non-citizen
„ INA §212(a)(9)(B)
‰ Unlawfully present
„ More than 180 days
„ One year or more
„ INA §212(a)(9)(C)
‰ Unlawfully present aggregate of more than 1 year, or
ordered removed, and
‰ Enters or attempts to reenter the U.S. without being
admitted

6
Categories of Deportability-
INA §237(a)
„ (1) Inadmissibility at time of admission and
violation of status
„ (2) Criminal offenses
„ (3) Failure to register and falsification of
documents
„ (4) Security
„ (5) Public
P bli charge
h
„ (6) Unlawful voters

Summary of Crime-Related Grounds of

Deportability
„ Crimes of moral „ Federal immigration
turpitude enforcement
‰ 1 offence within 5 years „ Domestic violence,
‰ 2 or more, not of a single stalking, and child
scheme, at any time abuse, neglect &
„ Controlled substances abandonment
„ Weapons „ Aggravated
gg felonies
‰ Firearms, destructive ‰ Defined at INA
devices §101(a)(43)(A)-(U)

7
Crimes of Moral Turpitude

„ INA §237(a)(2)(A)(i)
‰ Conviction
C i ti off crime
i off morall tturpitude,
it d ffor which
hi h 1
year of sentence may be imposed and which was
committed within 5 years of admission
„ INA §237(a)(2)(A)(ii)
‰ Convictions at any time of 2 or more crimes of
moral turpitude
turpitude, not arising out of a single scheme
of criminal misconduct

Aggravated Felonies
„ INA §237(a)(2)(iii)
‰ Conviction at any time after admission of an aggravated felony,
as defined at INA §101(a)(43)
„ INA §101(a)(43)(A)-(U) includes:
‰ Murder, rape, sexual abuse of minor

‰ Drug trafficking

‰ Weapons trafficking

‰ Theft or burglary with one year sentence

‰ Crimes of violence with one year sentence

‰ Fraud or deceit with loss in excess of $10,000

,
‰ Commercial bribery, forgery with a one year sentence

‰ Obstruction of justice, perjury, bribery of witness with one year

sentence

8
Controlled Substances

„ INA §237(a)(2)(B)(i)
‰ Convictions
C i ti off a violation
i l ti off llaw relating
l ti tto
controlled substances, other than a single offense
involving possession of 30 grams or less of
marijuana
„ INA §237(a)(2)(B)(ii)
‰ A non-citizen
non citizen who at any time after admission has
been a drug addict or abuser

Firearms Offenses

„ INA §237(a)(2)(C)
‰ Conviction
C i ti off any llaw off “purchasing,
“ h i selling,
lli
offering for sale, exchanging, using, owning,
possessing, or carrying…any weapon…which is a
firearm or destructive device”

9
Domestic Violence, Stalking, Child Abuse

„ INA §237(a)(2)(E)(i)
‰ Conviction of crime of violence against person
protected under family violence laws
‰ Conviction of stalking
‰ Conviction of child abuse, neglect or
abandonment
„ INA §237(a)(2)(E)(ii)
§ ( )( )( )( )
‰ Violation of protective order that involves
“protection against credible threats of violence,
repeated harassment, or bodily injury”

Aiding and Abetting Illegal Entry

„ INA §237(a)(1)(E)
‰ Any alien
A li whoh ((prior
i tto the
th date
d t off entry,
t att the
th
time of any entry, or within 5 years of the date of
any entry) knowingly has encouraged, induced,
assisted, abetted, or aided any other alien to enter
or to try to enter the United States in violation of
law

10
Department of Homeland Security Notice to Appear

In removal proceedings under section 240 of the Immigration and Nationality Act
File A 00 000 000
In the Matter of:
Respondent: Juan Garcia currently residing at:

c/o ICE, 8940 Fourwinds, San Antonio TX 78239

(Number, street, state and ZIP code) (Area code and phone number)

□ 1. You are an arriving alien.

□ 2. You are an alien present in the United States who has not been admitted or paroled.
x 3. You have been admitted to the United States, but are deportable for the following reasons stated below.

The Service alleges that:

1. You are not a citizen or national of the United States;
2. You are a native of Mexico and a citizen of Mexico;
3. You were admitted to the United States at San Ysidro, CA as a lawful permanent resident on or about 12/1/1990;
4. On August 31, 2005, you were convicted of the offense of Texas Penal Code §46.02 Unlawful Carrying of a Weapon in the 33rd County
Court of Law in Kingsille, Texas.

On the basis of the forgoing, it is charged that you are subject to removal from the United States pursuant to the following provision(s) of law:

Section 237(a)(2)(C) of the Immigration and Nationality Act (Act), as amended, in that, after admission you were convicted of an offense under
any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing or carrying any weapon, part or accessory,
which is a firearm or destructive device (as defined in section 921(a)of Title 18) in violation of law.

YOU ARE ORDERED to appear before an immigration judge of the United States Department of Justice at
800 Dolorosa St., San Antonio, Texas 78207
(Complete Address of Immigration Court Scheduling Room Number, if any)
on To Be Set at To Be Set to show why you should not be removed from the United States based on the charge(s) set forth above.
(Date) (Time)

___signed________________________________________
Roger W. San Martin, Agent in Charge
San Antonio, TX

Date: 9 /10/05
See reverse for important information Form I-862 (Rev. 4-1-97)

Texas Penal Code, §46.02

Unlawful Carrying of a Weapon
„ (a) A person commits an offense if the person
intentionally knowingly,
intentionally, knowingly or recklessly carries
on or about his or her person a handgun,
illegal knife, or club

11
Texas Penal Code, §22.01- Assault

„ (a) A person commits an offense if the

person:
‰ (1) Intentionally, knowingly, or recklessly causes
bodily injury to another, including the person’s
spouse
‰ (2) Intentionally or knowingly threatens another
with imminent bodily injury, including the person’s
spouse
‰ (3) Intentionally or knowingly causes physical
contact with another [with knowledge or belief
that] that contact [is] offensive or provocative.

Cases of Assault

„ Crime of Moral Turpitude

‰ Matter of Sejas,
Sejas 24 I&N Dec.
Dec 236 (BIA 2007
‰ Matter of Solon, 24 I&N Dec. 239 (BIA 2007)
„ Crime of Violence
‰ U.S. v. Villegas-Hernandez, 468 F.3d 874 (5th Cir. 2006)
‰ Gonzalez-Garcia v. Gonzales, 166 Fed. Appx. 740 (5th Cir.
2006)
„ Child Abuse
‰ Matter of Velasquez-Herrera, 24 I&N Dec. 503 (BIA 2008)

12
Texas Penal Code, §32.45-
Misapplication of Fiduciary Funds
„ (b) A person commits an offense if he
intentionally knowingly,
intentionally, knowingly or recklessly
misapplies property he holds as a
fiduciary…in a manner that involves
substantial risk of loss to the owner of the
property…

INA §101(a)(43)(M)

„ An offense that
‰ (i) iinvolves
l ffraud
d or deceit
d it iin which
hi h th
the lloss tto th
the
victim or victims exceeds $10,000
„ Omari v. Gonzales, 419 F.3d 303 (5th Cir.
2005)
„ Martinez v. Mukasey, 508 F.3d 255 (5th Cir.
2007)
„ Matter of Babaisakov, 24 I&N Dec. 306 (BIA
2007)

13
 TAB 06
Strategic Planning for Family Cases
 Family Immigration Cases
Strategic
g Planning:
g
Putting the Puzzle Together For Your Clients

Liz Cedillo-Pereira Nancy T. Shivers

mecp@cedillolaw.com ntshivers@shiverslaw.com
www.cpcimmigrationlaw.com
(214)981-9442

Objectives

„ Overview of Family Immigration Process

„ Formulating Strategies, Options and Goals

„ Ethical Considerations Brief

1
 Immigration Process

„ Case Assessment - Consultation

‰ Obtain Case Relevant Information
„ Who is the Petitioner/Client?
‰ Immigration Status
„ Beneficiaries?
‰ Immigration Status
„ Relationship Between Parties
„ Parties Place of Residence
„ Immigration History
‰ Entries and Departures
„ Criminal History
„ Petitioner Income

Immigration Process

„ Case Assessment – Consultation

‰ Require Personal Consultations

‰ Teleconference With Out of Country Clients
‰ Review Intake and Confirm Accuracy
‰ Prescription
„ Apply the law to the fact of the case
‰ Provide Case Recommendation and Explain
Timelines

2
 Immigration Process

„ Case Assessment – Clients Goals

‰ “Bring my mom and dad to the US.”

‰ “Help a nephew come to school.”

‰ “Unite with my fiancé as soon as possible.”

‰ “Help my wife legalize.”

‰ “Keep my husband from being deported.”

Immigration Process

„ Case Assessment – Analysis

‰ Petitioner and Beneficiary

‰ Clients Eligibility To Proceed

„ Grounds of Inadmissibility
‰ Facts of Each Element
„ Exception Availability
„ Waiver Availability

3
 Immigration Process
„ Petition Process – Terminology

‰ Immediate Relatives of U.S.C. - spouse, parent, minor children

‰ Family Preferences- those in the preference system bound by the
Visa Bulletin under an annual quota
‰ Priority Date – The date the preference petition is filed
‰ Petitioner – U.S.C. or LPR
‰ Beneficiary – applicant seeking to immigrate
‰ Parent – INA §101(b)(2); may be stepparent, adoptive parent and
child out of wedlock
‰ Sibling – one parent in common
‰ Spouse
p – valid marriage
g under law
‰ Child – INA §101(b)(1) and must be unmarried and under 21 (see
CSPA), daughter or son – child of any age.
‰ Stepchild – under 18 when parents married
‰ Adopted Child – adopted before 16 and legal custody and reside for
2 years
‰ Orphans – under 16 with other steps

Immigration Process

„ Petition Process To Seek Residency

‰ United States Citizens and Legal Permanent

Residents May Petition Family Members to
Immigrate to the United States.
‰ 8 INA § 201, 203(a) 2008
„ Petition Difference For Immediate Family and
Non-Immediate family members can be ten
years or more in processing times.

4
 Immigration Process
„ U.S.C. May Petition Spouse,
Parents, Children As Spouse

“Immediate Relati
Relatives.”
es ”

„ 8 INA 201(b)(2)(A)(i)2008
USC

Parent Child

Immigration Process
„ U.S.C. May Petition Spouse
adult sons and
daughters (married and
unmarried), and Brother Child

siblings. USC

„ 8 INA § 203(a)(1),
(a)(3), (a)(4), 2008
Sister Parent

5
 Immigration Process

„ Petition Process for Legal

Spouse
Permanent Resident
(LPR)
„ LPR may petition spouse,
unmarried children, adult LPR

sons and daughters who

Adult
are unmarried. Child
Child

„ 8 INA 203(a)(2)(A) and

(B), 2008.

Immigration Process
„ Petition Process – Example
‰ USC Petitions 20 Years Of Age Daughter
„ May complete the process in 1.5 years;
‰ USC Petitions 21 Years of Age Daughter
„ May wait 10 years or more depending on numerical limitations.

Family All China India Mexico Phillipp.

1st

2nd

3rd

4th

6
 Immigration Process

„ Case Assessment – Analysis

‰ Petitioner and Beneficiary☺

‰ Clients Eligibility To Proceed

„ Grounds of Inadmissibility
‰ Facts of Each Element
„ Exception Availability
„ Waiver

Immigration Process

„ Case Assessment – Analysis – Eligibility to Proceed

‰ Grounds of Inadmissibility
‰ Health-related
‰ Criminal
‰ National Security
‰ Public Charge
‰ Labor protection
‰ Fraud or misrepresentation
‰ False claim of citizenship
‰ D
Documentationi requirements
i
‰ Military service in the U.S.
‰ Prior removals or unlawful entries or unlawful presence in the U.S.
‰ Other
ƒ See 8 INA § 212

7
 Immigration Process
„ Case Assessment – Analysis – Eligibility to Proceed
‰ Grounds of Inadmissibility
‰ Exception Availability
ƒ Criminal – Petty Offense, Juvenile Exception
ƒ False claim of citizenship – youth/ignorance exception
ƒ Smugglers – Special Rule for Family Reunification
ƒ Unlawful Presence – Minors, Asylees, Family Unity, Battered Women
and Children and Tolling for Good Cause – 212(a)(9)(B)(iv)
If no Exception, Waiver Availability – Form I-601
ƒ Health-related – 212(g)
ƒ Misrepresentation – 212(i)
ƒ Criminal – 212(h)
( )
ƒ Smugglers – 212(d)
ƒ Final 274C Order – 212(d)
ƒ Unlawful Presence – 212(a)(9)B)(v)
‰ If no Waiver, other
ƒ Prior Removal - Application for Permission to Reapply for Admission
after Deportation or Removal – 212(a)(9)(A)(i) – Form I-212

Immigration Process

„ Assessing Grounds of Inadmissibility

„ Example: False Claim to U
U.S.
S Citizenship
‰ Claiming to be born in the U.S.
‰ Citizen or national on I-9
‰ Social Security Number application
„ §212(a)(6)(C)(ii)
‰ Any alien who falsely represents, or has falsely
represented, himself or herself to a be a citizen of the
United States for any purpose or benefit under this Act
(including 274A) or any other Federal or State law is
inadmissible.
‰ Applicable for acts on or after Sept. 30, 1996

8
 Immigration Process

„ Exception Availability
‰ If natural parent of the alien is/was a citizen,
citizen the alien
resided in the U.S. prior to attaining the age of 16 and the
alien reasonably believed that he of she was a citizen

„ Waiver Availability
„ None after September 30, 1996
„ S Th
See Theodros
d v. G
Gonzales,
l (5th Cir.
Ci JJune 25
25, 2007)(h
2007)(holding
ldi a
person who makes a false claim to U.S. citizenship in order to
gain private sector employment is inadmissible under INA
§212(a)(6)(c)(ii)(I) and removable under INA §237(a)(3)(D(i).

Immigration Process
„ Case Assessment – Analysis
‰ Adjustment of Status v. Consular Processing
„ Visa Processing At Consular Post
‰ Outside the U.S.
‰ Ineligible to Adjust Status
‰ Preferred Route
‰ Adjustment of Status At US CIS
„ Under Section 245 of the INA
‰ In the U.S.
‰ Judicial Review
„ Newly Added Vaccination Requirements – Effective
August 1, 2008

9
 Immigration Process
„ Case Assessment – Analysis
‰ Consular Processing -Authority of the Secretary of State

„ Approved I-130 petition ->

„ N ti
National
l Vi
Visa C
Center
t ->Fee
F Bills/Choice
Bill /Ch i off Add
Address and
dAAgentt -> sends
d outt
DS 230 Part I and Part II (Instruction Package for Immigrant Visa Applicants)
=>Pre-screening ->

„ Consular Appointment at Consular post designated on petition

„ Consular Interview Preparation

‰ Appear in person

‰ Medical Exam

‰ Original Documents Requested

‰ Take waiver if necessary to be submitted to Dept. of Homeland Security

„ No judicial review
‰ Visa Office Advisory Opinions Division to Review Legal Issues

Immigration Process

„ Adjustment of Status -Authority under

Immigration and Nationality Act
„ 245(a), (c) or
„ 245(i)

10
 Immigration Process

„ Case Assessment – Analysis

‰ S ti 245(a)
Section 245( ) P
Process R
Requirements:
i t
„ Inspected and Admitted or Paroled
„ Admissible
„ Lawfully in the U.S.,
‰ except for immediate relatives, battered spouses, battered
children, and special immigrants
„ Visa number must be immediately available at time of
filing.
ƒ 8 CFR Section 245.2(a)(5)(ii)

Immigration Process
„ Case Assessment – Analysis
‰ Section 245(c) – Ineligible for Adjustment
„ Worked without authorization (except IR)
„ Not in lawful immigration status (except IR)
„ Not admitted or paroled following inspection
„ Failed to maintain continuously legal status except if it was
through no fault of his own or for technical reasons
„ Crewman, Transit without Visa
„ A, G, E (but can waive privileges and immunities)
„ Js not meeting foreign residence requirement
„ Deportable under security and related grounds at 237(a)(4)(B)
„ Admitted as a K1 but did not marry the K1 Petitioner
„ Admitted under Visa Waiver Program (except IR)
„ Already a conditional permanent resident

11
 Immigration Process
„ Case Assessment – Analysis
‰ Section 245(i) – Ineligible But Eligible for Adjustment
„ W i
Waives section
ti 245(a)
245( ) and
d ((c))
‰ Allows applicant to adjust even if:
„ Entry Without Inspection
„ Overstayed
„ Worked without Authorization
‰ Must be beneficiary of a labor cert or petition (including I-
360) under section 204 filed on or before April 3030, 2001
‰ If Filed Between 1/14/98 And 4/30/01 Must Show Physical
Presence on 12/21/00 For Principal
‰ Fee of $1000.00 (unless child under 17 or Family Unity)

Immigration Process

„ Hypothetical Case – Status Adjustment

‰ Oscar is
O i from
f England
E l d and
d came tto th
the US on th
the
visa waiver program.

‰ He meets and falls in love with Mary who was

born in the USC.

‰ Does he have to consular process?

12
 Immigration Process
„ Case Assessment – Analysis - Removal Proceedings
‰ Cases denied by US CIS referred to Immigration Court reviewed
by Immigration Judge (IJ)
‰ Applicant may seek to adjust in Section
S 240
2 0 proceedings

„ IJ has no jurisdiction over I-130 or I-140 – US CIS must

adjudicate (must seek continuance)

‰ Benslimane v. Gonzales, 430 F.3rd 828 (7th Cir. 2005)(IJ made

legal error in denying continuance where respondent filed I-130
and I-485 but had not filed I-485 with court).
‰ Matter of Villarreal-Zuniga, 23 I&N Dec. 886 (BIA 2006)
(A/S cannot be based on an approved petition that has
already been used by the beneficiary to obtain status.
Here, son tried to re-use visa petition filed by mom after
being placed in removal proceedings).

Immigration Process

„ Case Assessment – Analysis - Removal

Proceedings

„ Must be eligible to adjust under 245(a)/(c) 245(i)

‰ “arriving aliens” may adjust status before US CIS and may
seek to adjust status before IJ if they are returning on an
advance parole, US CIS denied their A/S, and they are
placed
l d iin removall proceedings.
di
„ 8 C.F.R. §§245.2(a)(1), 245.2(a)(5)(ii), 1240.11(a)(1),
1245.2(a)(5)(ii).

13
 Strategies, Options and Goals
„ Case Strategies
‰ Family Relationships Derive Benefits in Preference System

„ Spouse/children get same priority date as Beneficiary

ƒ 22 C.F.R. §42.53(a)(2008).
„ Preference Family Member Only

„ Separate I-130 Is Not Required

„ Can immigrate with spouse or parent

„ “Accompanying” or “following to join” principal beneficiary

„ Derivatives
‰ Children of 1st preference beneficiaries

‰ Children of spouse of LPR(2nd)

‰ Children of sons and daughters of LPR (2nd)

‰ Spouses and children of sons and daughters of U.S.C (3rd

preference)
‰ Spouse and children of USC siblings (4th preference)

Strategies, Options and Goals

„ Case Strategies – Cross Chargeability
‰ Rule: Immigrant visas are charged based on the quota for the
beneficiary’s country of birth
‰ 22 C
C.F.R.
F R §42.12
§42 12 (2008)
(2008).
‰ Evaluate if an accompanying family member can speed up the
process

„ Exceptions:

1) Child may be charged to foreign state of either parent;

2) Spouse may be charged to foreign state of accompanying spouse;
3) USC who lost citizenship may be charged to foreign state of current
citizenship or country of last residence;
4) Alien born in location whether neither parent was born or had their
residence – charge to foreign state of either parent

14
 Strategies, Options and Goals

„ Hypothetical Case
‰ JJuan, a citizen
iti off M
Mexico,
i was petitioned
titi dbby hi
his
brother, Eric, a U.S.C. Juan is married to Lisa
who is from Italy.

‰ Juan’s application for permanent visa be charged

to quota for Italy
Italy.

Strategies, Options and Goals

„ Grandfathering
‰ Those who have filed petitions on or before April 30, 2001
may use that petition to adjust status based on a petition
submitted after that date as along as the ere was an
application/petition filed on or before 4/30/01 and was
“Approvable when filed”

„ Approvable When Filed

‰ As of the date of the filing, the petition or Labor Certification:
„ properly filed;
„ meritorious in fact;
„ nonfrivoulous.

‰ 8 CFR section 245.10(a)(3).

15
 Strategies, Options and Goals

„ Hypothetical Case - Grandfathering

‰ Recent high School graduate was arrested by ICE during a

workplace raid. His dad’s brother, a USC, filed an I-130 for
HS graduate in 1997.

‰ What can be done?

„ A. Nothing
„ B. Take a deport order.
„ C. Marry his USC girlfriend and adjust via grandfathering;
„ D. Ask Member of Congress to file a private bill.

Strategies, Options and Goals

„ Child Status Protection Act (CSPA) – 2002
‰ Allows Children 21 Years of Age to Retain “Child Status”

„ Immediate Relatives:
‰ Child of a USC remained IR if I-130 was filed while child was under 21
„ Matter of Avila-Perez, 24 I&N Dec. 78 (BIA 2007). BIA found that CSPA
protects an age-out where the visa petition was approved before CSPA’s
enactment because he was under age 21 when the visa petition was
filed.
‰ Child whose LPR parent naturalizes becomes IR if under 21 when parent
becomes USNC
‰ Child of USC remains IR if under 21 when child divorces

„ 2B Beneficiaries and Derivatives

‰ Use special calculation to determine whether child remains a child
‰ Biological age – time I-130 was processing
‰ Must apply within 1 year of visa availability

16
 Strategies, Options and Goals

„ Hypothetical Case
‰ Cami s Aunt a USC Petitioned Father in 1993
Cami’s
‰ Cami age 10, was a 4th preference derivative
‰ On March 1, 2005, at the time the 1993 I-130 priority date
visa became available, Cami was 21 years plus 254 days.
‰ At the immigrant visa interview in Brazil, her parents were
granted permanent residency.
‰ Cami’s
Cami s I-130
I 130 was pending only 15 days prior to approval
approval.
‰ Cami was denied because she was deemed to have "aged-
out“.

Strategies, Options and Goals

„ Notwithstanding the initial denial in 2005,

‰ Cami is accorded the original priority date of February 23
23,
1993 in that she remains dad’s unmarried daughter and
she was a derivative beneficiary on the original I-130 filed
by her aunt.
‰ Entitled to retain the February 23, 1993 priority date that
applied to the original 4th preference petition and therefore
a visa number under the second preference category is
immediately available to her.
See Matter of Garcia, Maria T, A79-001-587, June 16, 2006.

17
 Strategies, Options and Goals
„ Violence Against Women Act (VAWA)
‰ Battered Spouses or Children – I-360
„ 8 INA §§204(a)(1)(S)(iii)-(iv)

Other Options
‰ Widow(er)s – I-360

„ 8 C.F.R. §204.2(a)(4)(2008).
‰ Spouse, Parent,
ae ,o or C
Child
doof Member
e be oof Armed
ed Forces
o ces
Killed in Combat
„ 8 INA §201(b)(2)(A)(i)(2008).
‰ Fiancée/Fiancé – I-129(f)

Strategies, Options and Goals

„ VAWA
„ File I-360

„ All VAWA self-petitioners should be able to adjust status under

INA §245(a)
„ Requirements:
‰ Applicant applies for adjustment
‰ Visa immediately available
‰ Applicant eligible and no inadmissible under INA Section 212
‰ Self petitioner not required to show a “substantial
Self-petitioner substantial connection”
connection
between the qualifying battery or extreme cruelty and VAWA self-
petitioner’s unlawful entry. Previously denied on this grounds may
file a motion to reopen/reconsider.
ƒ Aytes Memo, Adjustment of status for VAWA self-petitioner
who is present without inspection, April 11, 2008

18
 Strategies, Options and Goals

„ Conversion and PD Retention

‰ Life circumstances
Lif i t off th
the P
Petitioner
titi or th
the
beneficiary may impact the immigration case
„ Beneficiary marries
„ Beneficiary divorces
„ Beneficiary turns 21
„ Petitioner becomes a U.S.C
„ Petitioner dies

Strategies, Options and Goals

„ Beneficiaries Marries
‰ Immediate Relative child Æ 3rd preference
„ PD is retained
‰ 1 Preference Æ 3rd preference
st

„ PD is retained
‰ 2nd preference = automatic revocation
„ 8 C.F.R. §205.1(a)
„ Beneficiar Divorces
Beneficiary Di orces
‰ Child/3rd Æ to Immediate Relative
‰ Son/daughter/21 & over Æ 1st
„ PD retained

19
 Strategies, Options and Goals
„ Beneficiary Turns 21
‰ IRÆ 1st

‰ 2A Æ 2B
„ File new I-130 but accorded original PD
‰ But see Child Status Protection Act

„ Petitioner Becomes USC

‰ 2A child -> IR

‰ 2A spouse Æ IR

‰ 2B soson/daughter
/daug te Æ 1st p
preference
e e e ce
„ But may elect to remain in 2B

‰ Derivatives lose that status and need new I-130

„ PD retained

Strategies, Options and Goals

„ Life Change Hypothetical Case
‰ Monica
M i iis th
the d
daughter
ht off JJose an LPR who
h fil
filed
d
an I-130 for her.
„ Monica gets married? What happens?
„ Jose naturalizes?
„ Monica divorces?
„ Jose dies?

20
 Ethical Considerations
„ Professional
‰ Stay Current With Law
„ 8 INA – Immigration
I i ti and dNNationality
ti lit Law
L Act
A t
„ 8 CFR – Code of Federal Regulations – Aliens and Nationality
„ 22 CFR – Code of Federal Regulations – Department of State
„ 2 CFR – Code of Federal Regulations – Department of Labor
„ Kurzban’s Immigration Law Sourcebook, 10th Edition
„ Case Law
„ AILA Infonet
‰ Stay abreast of changes, prospective

Ethical Considerations
„ Business
‰ Volume-Based
‰ Case Management
‰ Case Life Cycles
‰ Diverse client base
‰ High stress

21
 Ethical Considerations

„ Client Relationship
‰ Dual Clients
‰ Explain Fees (US CIS and Attorney)
‰ Communicate when an Attorney/Client Relationship
Exists/Parameters of Relationship
‰ Do not hesitate to pass on a case for ethical reasons
‰ Review Circumstance/story
‰ Explain Law in Purposeful Terms
‰ Be clear about Firm’s Policies and Procedures
‰ Maintain contact with Client
‰ Celebrate with your Client

Conclusion

"There are no extra pieces in the universe.

Everyone is here because he or she has a place to fill, and
every piece must fit itself into the big jigsaw puzzle."
- Deepak Chopra

22
 TAB 07
Immigration Rights
(NO MATERIALS FOR THIS SECTION)
 TAB 08
A Primer on Foreign Adoption
 The University of Texas School of Law

Presented:
32nd Annual Conference on Immigration and nationality Law

October 22-24, 2008

San Antonio, TX

Primer on Foreign Adoptions

Jodi Goodwin

Author contact information:

Jodi Goodwin
Law Office of Jodi Goodwin
1322 East Tyler Avenue
Harlingen, Texas 78550
jodigoodwin@sbcglobal.net
956-428-7212

Continuing Legal Education • 512-475-6700 • www.utcle.org

 Primer on Foreign Adoptions

I. Introduction

Adopting a child can be the most exciting time in a new adoptive parent’s life. Throw in
the twists and turns of the complex United States immigration system and the adoption of
a foreign child can also become the most frustrating time in a new adoptive parent’s life.
The immigration laws of the United States contemplate two basic types of adoptions:
those for orphans and those for nonorphans. In addition to this distinction, the procedures
and requirements can vary depending on where the child is located, i.e. in the United
States or abroad, and whether or not the child being adopted is from a country party to the
Hague Convention.

This paper seeks to set forth in a primer fashion the various requirements and distinctions
for adopting children of foreign birth. Each adoption and the circumstances of each child
and each adoptive parent or parents can vary widely. As such this paper intends to be a
starting point in your journey navigating the labyrinth of the immigration laws as they
relate to adoptions.

II. The Types of Foreign Adoptions (or Adoption of Foreign Children)

In general, the immigration laws contemplate three types or categories of foreign

adoptions (or adoptions of foreign children): nonorphans, orphans, and Hague
Convention adoptions. The Immigration and Nationality Act (INA) sets for the
requirements for each of these categories at §§101(b)(1)(E), (F) and (G), respectively.

A. Adoptions (Nonorphans)

INA §101(b)(1)(E) sets for the requirements for an adopted child to be considered a
“child” for purposes of the immigration laws and reads:

(i) a child adopted while under the age of sixteen years if the child has been in
the legal custody of, and has resided with, the adopting parent or parents for at
least two years: Provided, That no natural parent of any such adopted child shall
thereafter, by virtue of such parentage, be accorded any right, privilege, or
status under this chapter; or (ii) subject to the same proviso as in clause (i), a
child who: (I) is a natural sibling of a child described in clause (i) or
subparagraph (F)(i); (II) was adopted by the adoptive parent or parents of the
sibling described in such clause or subparagraph; and (III) is otherwise
described in clause (i), except that the child was adopted while under the age of
18 years.

1
In practical terms, classification as a child under §101(b)(1)(E) is the provision
commonly used for private adoptions where the foreign born child is in the United States.
Such situations would include familial adoptions or adoptions of “older” children by
close friends or caretakers. In addition, the requirements of §101(b)(1)(E) can be used in
situations where the status as an orphan can not be proven.

1. Legal Custody and Residence

To qualify for classification as a child for immigration purposes, the adoptive parent must
have legal custody and have resided with the adoptive child for a period of two years
prior to the filing of a petition to classify the child as an immediate relative. The
regulations at 8 C.F.R. §204.2(d)(2)(vii)(c) specifically allow that the residency
requirement can be fulfilled before or after the adoption. However the legal custody
requirement is not as fluid. In order to show legal custody one must have either a final
adoption or some other form of custody award from the court. See 8 C.F.R.
§204.2(d)(2)(vii)(A).

2. Adoption Before 16 years of Age

A full and final adoption must take place prior to the child’s 16th birthday. It is not
sufficient to have filed a petition for adoption prior to the child’s birthday, but rather the
adoption process must be completed and final. As a practice note, where there is a time-
crunch, adoptions in many jurisdictions can be expedited including all state statutory
requirements prior to the final adjudication of a petition for adoption. However, if there
is thought of future immigration, practitioners must be mindful of the child’s 16th
birthday.

3. Special Rule for Siblings

An exception to the rule that an adoption must be final prior to the 16th birthday exists for
the natural siblings of individuals who are adopted while under the age of 16.
Specifically, a natural sibling of a child adopted while under the age of 16 may also be
considered a child for immigration purposes provided their adoption takes place prior to
their 18th birthday. Although the order in which the adoptions took place was an issue of
dispute, the Board of Immigration Appeals ruled in 2008 that it makes difference not
whether the under 18 or the under 16 year old child is adopted first. Matter of
Anifowoshe, 24 I. & N. Dec. 442 (BIA 2008).

4. No Benefits to Natural Parents or Siblings

A common set of facts in the immigration adoption arena is for a friend or relative or
caretaker to agree to adopt a child for the purpose of being able to provide an
immigration benefit to that child. However, in many circumstances the child maintains
his or her relationship with their natural parents and only the “parents” in legal terms is
changed for the immigration benefit. Just as in marriage petitions, the government will

2
seek to determine the bona fides of the adoptive relationship. In fact, the regulations at 8
C.F.R. §204.2(d)(2)(vii)(B) require that it is the adoptive parents burden to show they
maintain primary parental control of the adoptive child. In the same vein as combating
against adoption fraud, the statute specifically prohibits an adoptive child from seeking
immigration benefits for their natural parents or siblings where said adoptive child
received the immigration benefit of classification under §101(b)(1)(E).

5. Petition (I-130)

Unlike the other types of adoption processing, there is no pre-processing approval

required before one can petition for their adoptive child as an immigrant under
§101(b)(1)(E). In order to classify an adoptive child as a child for immigration purposes,
one must fill out and provide supporting documentation on Form I-130. The types of
documents generally required would include birth certificates, marriage certificates,
divorce decrees and full and final adoption decree. In addition to the documents listed
above, the adoptive parent must be prepared to show the adoptive child is residing with
the adoptive parent. Some documents helpful in making this showing of residency with
the adoptive parent include school records, medical records, affidavits from people who
know the child lives with the adoptive parent.

6. Special Entry Issues

In situations where an adopted child is petitioned for and is residing in the United States,
the child can be eligible for adjustment of status provided they otherwise meet the
requirements for adjustment under section 245 of the INA. It is very common for
children to have been brought to the United States as extremely young infants. For
example, a United States couple may identify a child for adoption along the border region
of the US and after the child is born bring the child to the United States from Mexico by
crossing through one of the land port of entries. The circumstances at entry can certainly
vary, but often the adults are questioned as to their citizenship d then perhaps asked if the
child is theirs. Based on the BIA’s precedent decision in Matter of Areguillin, 17 I. & N.
Dec. 308 (BIA 1980)1, the inspection and admission of the child where there was no
knowing false claim to United States citizenship is a lawful entry for purposes of §245
adjustment.2

Some practical considerations that practitioners should be aware of in filing adjustment

applications on behalf of adopted children brought into the United States at a very young
age are the ability to prove the entry and the possibility of prosecution of the individual or

1
The validity of Matter of Areguillin has recently been the subject of litigation and discussion. The Ninth
Circuit’s decision in Orozco v. Mukasey, 521 F. 3d 1068 (9th Cir. 2008) called into question the
precedential value of Areguillin given that it was a decision predating the current statutory definition of
“admission.” However, the Ninth Circuit vacated its decision in Orozco on October 20, 2008.
2
In the event the adjustment of status application is not approved, practitioners should be mindful that
children can immigrate via consular process without the need for a waiver of unlawful presence under
212(a)(9)(B) while they are under the age of 18. No unlawful presence accrues for purposes of
212(a)(9)(B) until after the 18th birthday. However, 212(a)(9)C), the permanent bar, DOES apply to minors
and as such cases should be analyzed carefully prior to sending the child abroad for consular processing.

3
individuals who brought in the child under the smuggling provisions. In the more recent
technological age, the government has the ability to photograph vehicles at entry as well
as record the license plate numbers at the time of entry. In preparing affidavits to support
a Matter of Areguillin entry, be mindful that details will be required such as the exact
date of entry, the exact port of entry, and perhaps even the license plate number of the
vehicle in which the child was brought to the United States.

B. Orphans

INA §101(b)(1)(F) sets for the requirements for an orphaned child to be considered a
“child” for purposes of the immigration laws and reads:

(i) a child, under the age of sixteen at the time a petition is filed in his behalf to
accord a classification as an immediate relative under section 201(b) of this
title, who is an orphan because of the death or disappearance of, abandonment
or desertion by, or separation or loss from, both parents, or for whom the sole or
surviving parent is incapable of providing the proper care and has in writing
irrevocably released the child for emigration and adoption; who has been
adopted abroad by a United States citizen and spouse jointly, or by an
unmarried United States citizen at least twenty-five years of age, who
personally saw and observed the child prior to or during the adoption
proceedings; or who is coming to the United States for adoption by a United
States citizen and spouse jointly, or by an unmarried United States citizen at
least twenty-five years of age, who have or has complied with the preadoption
requirements, if any, of the child's proposed residence; Provided, That the
Attorney General is satisfied that proper care will be furnished the child if
admitted to the United States: Provided further, That no natural parent or prior
adoptive parent of any such child shall thereafter, by virtue of such parentage,
be accorded any right, privilege, or status under this chapter; or (ii) subject to
the same provisos as in clause (i), a child who: (I) is a natural sibling of a child
described in clause (i) or subparagraph (E)(i); (II) has been adopted abroad, or
is coming to the United States for adoption, by the adoptive parent (or
prospective adoptive parent) or parents of the sibling described in such clause or
subparagraph; and (III) is otherwise described in clause (i), except that the child
is under the age of 18 at the time a petition is filed in his or her behalf to
accord a classification as an immediate relative under section 201(b) of this
title.

In practical terms, the provisions of §101(b)(1)(F) are the provisions used to qualify most
typical foreign adoptions, that being children adopted through an agency that places
orphaned children in foreign countries with willing adoptive parents in the United States.
Prior to the passage and acceptance of the Hague Convention adoption procedures
discussed below, the provisions in §101(b)(1)(F) were used for all foreign adoptions of
orphans, but since the effective date of the Hague Convention rules, April 1, 2008, the
procedures at §101(b)(1)(F) only apply to non-Hague Convention parties.

4
 1. Adoption Abroad

The statute makes clear that in order to qualify as a child for immigration purposes under
§101(b)(1)(F) the adoption must take place in the foreign country. See also 8 C.F.R.
§204.3(k)(2). There is an additional requirement that the adoptive parent or parents have
met the child prior to adoption and filing of a petition to classify the adoptive child as a
child for immigration purposes. In some circumstances, the statute and the regulations do
provide for a child to come to the United States to be adopted, however all preprocessing
for the adoption must be complete as well as a finding made by the Attorney General that
the children will be well cared for if admitted to the US.

2. Adoption Before 16 Years of Age

As with adoptions under §101(b)(1)(E), the final adoption of an orphan under

§101(b)(1)(F) must take place prior to the child’s 16th birthday.

3. Classes of Orphans

The statute and the regulations provide for the varying situations in which a child can be
classified as an orphan. Specifically, orphan status can result from the death or
disappearance of both parents, abandonment or desertion by both parents or separation, or
loss of both parents.

In determining whether or not abandonment has occurred, the regulations require that the
parents have willfully forsaken all parental rights, obligations, and claims to the child, as
well as control over and possession of the child. In other words, the parents must have
given up their parental rights completely and irrevocably as well as given up the control
and care of the child. 8 C.F.R. §204.3(b). The rule for a child who has only one parent is
slightly different in that all that is required is that the one parent be incapable of
providing care and that irrevocably release the child in writing. 8 C.F.R.
§204.3(d)(1)(iii)(C).

Additionally the Immigration Service takes care to make a determination of the status of
the father in situations where the child was born out of wedlock. Where there is a
relationship with the child by the father, the classification as an orphan will not be
approved. If there is no relationship, or the father has abandoned or deserted the child,
then the matter will be treated the same as if there is only one parent.

4. Special Rule for Siblings

Just as with adoptions under §101(b)(1)(E), the adoption of natural siblings over the age
of 16 but younger than 18 are allowed for orphan children. See discussion above.

5. Married Couples Only (or Single and Over 25)

5
The prospective adoptive parents must be married and both the husband and the wife
must adopt the orphan. 8 C.F.R. §204.3(b). There is no mention of the immigration
status of the prospective parents, unlike the Hague Convention adoptions discussed
below. In addition, a single person who is over the age of 25 may also adopt an orphan.

6. Home Study

Generally, as part of the advance processing a home study is conducted in order to

determine the ability to care well for the prospective adoptive child. The home study is
conducted here in the United States and must include information about criminal history,
history of abuse of alcohol or drugs, as well as family violence issues. This is a home
study that must be turned in to Immigration during the pre-processing phase, however if a
home study is required for the actual adoption proceedings, the same study may be used
for immigration purposes. Note, in adoption cases under §101(b)(1)(E), no home study is
required for immigration purposes, but one was probably required in order to obtain the
final adoption decree in the state court.

7. No Benefits to Biological Parents or Siblings

The rule with respect to the natural parents or siblings not obtaining immigration benefits
from an orphaned child is the same as with an adopted child: it is not allowed.

8. Pre Processing and Classification as Orphan (I-600A & I-

600)

With the filing of an I-600A a prospective adoptive parent can obtain approval to adopt
from the Immigration Service. Once it is determined they are approvable, a notice will
issue and their status as approved for adoption will be valid for a period of 18 months. 8
C.F.R. 204.3. Ostensibly, the time period is long enough so that a child can be identified
and petitioned for using an I-600. Once a child is identified, then the parents can file the
I-600. If child has already been identified, the I-600A and the I-600 can be filed at he
same, or the I-600 can be filed while the I-600A is pending. 8 C.F.R. 204.3(d). In other
words, prospective parents do not have to wait for the approval of I-600A (determining
the parents fit to adopt) to file the actual petition for the child. This is unlike the Hague
Convention adoption procedures discussed below.

C. Hague Convention Rules

As of April 1, 2008, the United States adopted and placed into effect the Hague
Convention with respect to inter-country adoptions and the procedures and policies as set
forth in the Hague Convention now apply to all cases where the adoption will take place
in a country state party to the Hague Convention. There are currently approximately 75
countries state party to the Hague Convention. As such, practitioners should be aware to
check convention status prior to proceeding with an adoption as the requirements and
procedures are quite distinct under the Hague Convention. For a complete listing of

6
Hague Convention Countries see
http://travel.state.gov/family/adoption/convention/convention_4197.html.

1. United States Citizen and Spouse Only

An adoption under the Hague Convention can only be accomplished by a married United
States citizen and their spouse who also adopts the child. As with non-convention
adoptions, a single person over the age of 25 may also adopt, but they must be a United
States citizen.

2. Visa Petition Filed Prior to 16 Years of Age

In the scenarios discussed above, only the adoption had to be finalized prior to the child’s
16th birthday. However, the Hague Convention adoptions must have the petition to
classify the child as an immigrant filed prior to the 16th birthday. In other words, the I-
800 must be filed before the child turns 16.

3. Adoption Abroad

The Hague Convention requires that the adoption take place abroad. However it is not a
requirement that the child be an orphan to proceed with a Convention adoption.

4. Residence of Adoptive Parents and Child

The adoptive parents must be residing in the United States and the adoptive child must be
residing in the Convention country. INA §204(d). There are certain exceptions to this
residency requirement for United States citizens living abroad who intent to return and
establish domicile in the United States prior to the issuance of an immigrant visa for the
adoptive child.

5. Suitability and Best Interest

In Hague Convention adoptions, the Immigration Service must make a determination of

suitability to adopt prior to the placement of the child with the adoptive parents by the
authorities in the Convention country. In addition, the Convention country Central
Authority must make a finding that the adoption is in the best interest of the child. In
other words, both State parties must agree the adoption should go forward and the child
will be admitted to the United States before the adoption is finalized. 8 C.F.R.
§204.3(a)(2)

6. Pre Processing and Petition (I-800A & I-800)

Adoptive parents considering a Hague Convention adoption must first be approved as

suitable parents by the Immigration Service. The filing and approval of the form I-800A
is required prior to the filing of a petition to classify a child as an immigrant on form I-

7
800. Given that the Convention took effect on April 1, 2008, if the processing of a
Convention adoption began with the filing of either an I-600 or I-600A prior to April 1,
2008, the adoption may go forward without adherence to the Convention procedures.

7. Payment of Fees

The Hague Convention specifically provides that on payment be made to the birth parents
in exchange for the adoption. Limited exceptions exist for payment of the actual birth
and expenses related to the care of the birth mother while pregnant. 8 C.F.R. 204.304(a)-
(b).

III. Automatic Citizenship

A. Child Citizenship Act

The Child Citizenship Act took effect on February 27, 2001 and applies prospectively
only. The Child Citizenship Act was passed by Congress with the intention that children
who benefit from immigrating through one of their United States citizen parents be
granted United States citizenship at the same they immigrate as lawful permanent
residents. There is no requirement that a child DO anything to be able to obtain the status
as a United States citizens, however if the child wants tangible proof of the status either
an N-600 or a United States Passport application should be filed.

B. Requirements

INA §320 sets forth the requirements under the Child Citizenship Act and provide that at
least one of the parents is a United States citizen, either adoptive or natural. The United
States citizen parent can be a citizen by birth or by naturalization. The child, including
adopted children, must have been admitted to the United States as a lawful permanent
resident prior to their 18th birthday and be residing in the legal and physical custody of
the citizen parent. Citizenship is automatically acquired on the date that all conditions
are fulfilled and is not retroactive. In other words, only those children who were under
the age of 18 on February 27, 2001 are eligible for the automatic acquisition of
citizenship.

C. Exemption from Affidavit of Support

The requirement that an immigrant provide an Affidavit of Support to the United States
government in order to immigrate to the United States is exempted for adopted children
who immigrate while under the age of 18. Generally, the affidavit of support would
require that a sponsor agree in contract form to be liable for any amount of monies
expended by the government for need-based benefits received by the immigrant.
However, in the case of a person who will become a United States citizen automatically
upon admission to the United States as a lawful permanent resident. Instead of filing an
I-864, Affidavit of Support, such a person would instead file an I-864W stating the

8
exemption of the filing requirement due to the automatic classification as a United States
citizen.

IV. Conclusion

The circumstances of individual families seeking to adopt or coming to you after already
in the adoption process are varied. After reviewing those individual circumstances, and
reviewing the statute and regulations relating to adoption in the immigration context,
developing a plan to not only bring the child to the United States or getting residency for
a child already here in the United States then getting United States citizenship for the
same child is what this author considers “happy” law. As lawyers, a good understanding
of the process and procedures to immigrate adopted children to the United States will not
only provide your clients with a fulfillment of their dream to have a family, but also will
provide you with a professional fulfillment of having obtained the ultimate prize for a
deserving child – United States citizenship.

9
 TAB 09
Practice Issues and Immigration Options for Vulnerable
Populations
 IMMIGRANT ISSUES AFFECTING
CHILDREN IN FOSTER CARE

JANET M. HEPPARD
ANNE CHANDLER
University of Houston Law Center
Clinical Legal Programs
100 Law Center
Houston, Texas 77204-6060

State Bar of Texas

ND
32 ANNUAL ADVANCED FAMILY LAW COURSE
August 14-17, 2006
San Antonio

CHAPTER 56.2
 JANET M. BUENING HEPPARD
Civil Clinic Director
Associate Professor of Clinical Practice
University of Houston Civil Clinic
University of Houston Law Center
100 Law Center
Houston, Texas 77204-6060
713/743-2094
JHeppard@uh.edu

BIOGRAPHICAL INFORMATION
Education

1994 JD, University of Houston Law Center, Houston, Texas

1994 MBA, University of Houston, Houston, Texas
1981 B.S., Geology, Summa Cum Laude, Wright State University, Dayton, Ohio

Licenses

State Bar of Texas

U.S. District Court, Southern District of Texas

Membership & Professional Activities

State Bar of Texas (including Family law and Consumer Law sections)
American Bar Association
Houston Bar Association (including Family Law Section)
American Association of Petroleum Geologists
State Bar College

Conferences and Outside Teaching

Family Law on the Front Lines Conference: Dealing With ProSe Opponents and Freelance Clients (April
26&27, 2001; Sponsored by the University of Texas School of Law)
People’s Law School sponsored by the University of Houston Law Center: Family Law Speaker
Keeping Kids Safe: Child Abuse Prevention: for Girl Scout leaders
Family Law on the Front Lines Conference: Habeas Corpus and Writs of Attachment
(April 11&12, 2002; Sponsored by the University of Texas School of Law)
Looking Over the Rim: New Horizons for Families, Courts and Communities: Helping ProSe Litigants Help
Themselves (June 5-8, 2002; Sponsored by the Association of Family and Conciliation Courts)
Rocky Mountain Regional Clinical Conference: Panel: Compatible and Sometimes Conflicting Duties of
Clinicians (November 8, 2003; Hosted by the University of Houston Law Center)
Family Law on the Front Lines Conference: Planning Committee (March 27&28, 2003; Sponsored by the
University of Texas School of Law)
AALS Conference on Clinical Legal Education: Back to Basics/Back to the Future: Small Group Leader:
May 1-4, 2004
Family Law Essentials for $2000 or Free: Handling a Custody Case on a Shoestring (October 29, 2004:
Alpine, Texas; sponsored by the State Bar of Texas)
Family Law on the Front Lines Conference: Discovery on a Shoestring
(June 30-July 1, 2005; Sponsored by the University of Texas School of Law)
Rocky Mountain Regional Clinical Conference: Panel: Collaboration Among Clinics (October 21-22, 2005;
Hosted by Texas Tech University School of Law)
National Institute for Trial Advocacy: Trial Skills for Juvenile and Family Courts, Faculty , (February 24-25,
2006; sponsored by the University of Houston Law Center Blakely Advocacy Institute, Houston, Texas)
 ANNE CHANDLER
University of Houston Law Center
100 Law Center
Houston, Texas 77204-6060
713 743 2094
Fax 713 743 2195

BIOGRAPHICAL INFORMATION

EDUCATION

J.D., Cum Laude, University of Houston Law Center

B.A, Political Science with Honors, Colorado State University

PROFESSIONAL ACTIVITIES

American Immigration Law Association, Member, 1998-current

Asylum and Human Rights Law Mentor, American Immigration Law
Association, 2003-current
Super Mentor in Juvenile Immigration Law, American Bar Association, 2006
Houston Refugee Pro-Bono Project, Mentor Attorney, 1999- current
Coalition Against Human Trafficking of Houston, Member 2002-current.

LAW RELATED PUBLICATIONS, ACADEMIC APPOINTMENTS

Author/ Speaker for National American Immigration Law Association

Protecting the Interests of the Children
Co-Author, The ABCs of Special Immigrant Juvenile Status, published in
2006-2007 Immigration and Nationality Handbook, 2006-2007
Author, Fundamentals of Family Based Immigration, publication in 2006
Violence Against Women Act Conference Materials
Speaker, Bi-national Conference, Immigrant Children on their Own, April 2006
Supervising Attorney, University of Houston Law Center, Clinical Programs.
Immigration Clinic, 2003-current
Adjunct Professor of Law, Thurgood Marshall School of Law, 2005 & 2006
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

TABLE OF CONTENTS

I. INTRODUCTION................................................................................................................................................... 1

II. OVERVIEW OF IMMIGRATION LAW FOR ABUSED/ NEGLECTED CHILDREN ...................................... 1

A. Violence Against Women Act......................................................................................................................... 2
1. Protection for Many Children Victims of Family Violence .................................................................... 2
2. Procedure to Apply for Benefits .............................................................................................................. 3
3. The Clock May be Ticking...................................................................................................................... 3
B. U Visa for Victims of Crime ........................................................................................................................... 3
C. T Visa for Cases of Human Slavery ................................................................................................................ 4
D. Asylum and Related Relief.............................................................................................................................. 4
E. Family Petition for Adopted and Orphaned Child........................................................................................... 5
F. Family Petition for Child................................................................................................................................. 5

III. SPECIAL IMMIGRANT JUVENILE STATUS FOR NEGLECTED, ABUSED, & ABANDONED
CHILDREN............................................................................................................................................................. 5
A. Overview of SIJS Status.................................................................................................................................. 5
B. Definition of Eligible Child............................................................................................................................. 6
1. When has a child been “Declared Dependent Upon a Juvenile Court”? ................................................. 6
a. What is a “juvenile court”?.............................................................................................................. 6
b. What does it mean to be “declared dependent upon a juvenile court”?........................................... 6
2. When is a child eligible for long-term foster care”?................................................................................ 7
3. How does federal law define abuse, neglect, or abandonment? .............................................................. 8
C. The Big Question, “Do I need Consent from the Federal Government to Ask a Judge to Turn the Golden
Key? ................................................................................................................................................................ 8
1. Situations When Consent is Necessary.................................................................................................... 9
a. “Constructive Custody” of the Federal Government. ...................................................................... 9
b. “Specific Consent” Requests ........................................................................................................... 9
c. Preparing Specific Consent Request from Federal Government ................................................... 10
D. Turning the Golden Key: Obtaining theDependency Order for the Special Immigrant Juvenile ................. 11
1. Definitions ............................................................................................................................................. 11
2. Jurisdiction and Venue or Where Do I File????? .................................................................................. 11
3. Who Has Standing to be the Petitioner or Who Can File???................................................................. 12
4. Who Gets Notice of the Suit???............................................................................................................. 13
5. Filing the Petition—Who Gets Notice??? ............................................................................................. 14
6. Final Order and Final Trial.................................................................................................................... 14
E. Final Stretch: Submitting I-360 Self Petition and Applying to
Adjust Status as a Legal Permanent Resident ............................................................................................... 14
1. I-360 Self Petition.................................................................................................................................. 14
a. Approval of I-360 .......................................................................................................................... 14
b. Keeping the Approved I-360 Alive ............................................................................................... 15
2. Adjustment of Status ............................................................................................................................. 15

PART III.APPENDIX: SAMPLE MATERIALS, LAW AND REFERRALS

A. Sample Special Immigrant Juvenile Custody Petition
B. Special Immigrant Juvenile Custody Final Order
C. I-360, Self-Petition
D. G-28
E. Sample Letter Requesting Consent from Federal Government to Enter State Court Proceedings
F. Copy of Special Immigrant Juvenile Statutory Authority
G. Copy of Special Immigrant Juvenile Regulatory Authority
H. List of State-Wide Immigration Agencies and Resources

i
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

IMMIGRANT ISSUES AFFECTING decipher your child client’s immigration status, to

make necessary referrals, and to advocate on behalf of
CHILDREN IN FOSTER CARE your immigrant child client.
I. INTRODUCTION
II. OVERVIEW OF IMMIGRATION LAW FOR
This paper is written as a general guide to family
ABUSED/ NEGLECTED CHILDREN
law attorneys representing abused or abandoned
Like the tax code, immigration law is a
“alien” children in foster care. “Alien” is a technical
complicated, dynamic matrix of treaties, statutes,
term branding individuals present in the United States
regulations, and administrative law. Unless a child
that are neither legal permanent residents nor citizens.
acquired citizenship at birth or derived citizenship
When choosing which immigrant “alien” children
through a parent, the child cannot apply for citizenship
should remain in the United States legally, Congress
unless the individual has been a legal permanent
instructed federal agents to rely, in many situations, on
resident for three or five years and has obtained 21
state law and family law court orders to determine
years-of-age. Legal permanent residents have the right
which vulnerable children should remain legally in the
to work in the United States, and to travel freely in and
United States.
out of the United States as long as the individual has
This paper has two goals. First it summaries the
permanent residence is the United States.2 With the
major immigration provisions protecting abused and
exception of children under 18, all legal permanent
abandoned immigrant children. This overview will
residents are required to carry, in their possession, a
provide you with crude tools to help you understand
valid I-551, Legal Permanent Resident Card, a card
the immigration status of your child client and to make
often referred to by the color of an expired version of
adequate referrals to an immigration practitioner in
the I-551, the Green Card.
your area. Our second goal is much more ambitious for
If a child in foster care is not a legal permanent
it seeks to lure you into the role of an immigration
resident or a citizen, it does not follow that the child
advocate as you represent children in courts that make
lacks valid immigration status. Refugees, asylees,
custody determination under state laws for abused and
recipients of valid immigrant and non-immigrant visas,
abandoned children. When deciding which abused or
and individuals with temporary protected status are a
abandoned alien children should be able to remain and
non-exhaustive list of valid immigrant status types. If
work legally in the United States, Congress set out a
you discover a child in foster care is not a legal
scheme whereby judges trained in analyzing state laws
permanent resident or citizen, but has a valid
and making best interests of the child determinations
immigration status, the child may be at risk of losing
hold the golden key to decide whether the doors of
his or her legal status. Immigration law is replete with
legal status in the United States should open for an
legal requirements and timelines that child immigrants
abused, neglected, or abandoned child. Furthermore,
and their adult counterparts must fulfill to maintain
Congress decided that this golden key held by judges
their legal status. Furthermore, many children in legal
which can be used in cases where the abuse, neglected
status are legally present in the United States as
or abandonment occurred in the United States or
derivatives, in other words, because of their
abroad. Thus, our second goal defines the
relationship to a parent. When circumstances of the
circumstances where a judge can turn his golden key to
parent change or circumstances between the parent and
protect an abused, neglected or abandoned child. Part
II gives you the basic tools regarding how to educate
and encourage judges applying state law to utilize the
golden key to open the gate to a child client’s ability to A. Special Immigrant Juvenile Petition
remain permanently in the United States. B. Special Immigrant Juvenile Order
To accomplish these complementary goals, Part I
C. I-360, Self-Petition
provides you with an overview of key immigration
provisions available to protect abused, neglected and D. G-28
abandoned children from deportation. Part II proceeds E. Sample Letter Requesting Consent from Federal
with a focus on the special immigrant juvenile (“SIJ”) Government to Enter State Court Proceedings
status, the status Congress created to protect abused,
neglected, and abandoned children that have been F. Copy of Special Immigrant Juvenile Statutory
Authority
touched by the golden key of a state court judge. Part
III of this paper leaves the reader with numerous G. Copy of Special Immigrant Juvenile Regulatory
Appendixes1 to provide you with the additional tools to Authority
H. List of State-Wide Immigration Agencies and
Resources.
1
The Appendix contains the following materials:
1
Immigrant Issues Affecting Children in Foster Care
the child change, the child is often left with no legal
right to remain in the United States.
Many children will not inform you of their
immigrant status. If a child was not born in the United
States or does not possess an I-551 Card documenting
their status as legal permanent residents, the child may
be illegally present in the United States. Some children
are aware of their illegal status, others are not. Many
children brought to the United States as infants or
young children, graduate from our high schools only to
discover that they are “aliens” who are subject to
deportation and that they have no legal rights to work,
no rights to obtain financial aid for college, and no
right to travel.
A. Violence Against Women Act
If an immigrant child in foster care is not a legal
permanent resident or citizen, the Violence Against
Women and Department of Justice Reauthorization Act
of 2005 (“VAWA”) 3 may provide an avenue where a
child may gain legal status because of certain instances
of family abuse.
1. Protection for Many Children Victims of Family
Violence
A child maybe eligible for VAWA benefits in two
broad situations:
1) if the child was a victim of abuse or
2) if the child has a parent that was a victim of
spousal abuse, and the child obtains benefits
as the derivative of his or her abused parent.
In either situation five requirements must be met
before a child is eligible for VAWA benefits. First, the
child4 must have resided with an abusive parent in the
United States. There is no requirement that the abuse
occurred in the United States. Rather, what is key, is
that the child, or the child’s abused parent, resided with
the abuser in the United States.
3
The Violence against Women and Department of Justice
Reauthorization Act of 2005 (P.L. 109-162) January 5, 2006.
See INA § 204(a)(1)(A); 8 C.F.R. § 294.2 (self-petitioning
provisions for battered spouses or children); See INA §
204(A); 8 C.F.R. § 1240.65 (Special Rule Cancellation of
Removal).
4
As more precisely defined in case law and regulations a
child for VAWA purposes is an unmarried person less than
twenty-one years of age who is a) legitimated child; b) a
stepchild; c) a child legitimated under the law of the child’s
residence or under the law of the father’s residence; d) an
illegitimate child; e) a child adopted while under the age of
sixteen; f) a child who is an orphan. INA § 204(a); 8 C.F.R.
§ 204; INA § 240(A).
2
Chapter 56.2
Second, a parent-child relationship must exist
between the child and the abuser or the child and an
abused parent. Generally speaking a child-parent
relationship exists between a child and their biological
parent5, a step-parent, an adopted parent, or a non-
parent if the child’s parent believed s/he was in a valid
bona-fide marriage with the abuser.6
Third, the abuse must constitute “battery” or rise
to the level of “extreme cruelty”7. Acts that amount to
“battery and extreme cruelty” include acts of violence;
threatened acts of violence; forced detention resulting
in physical or mental injury; and psychological or
sexual abuse or exploitation including rape,
molestation, incest, or forced prostitution. A pattern of
this type of activity may rise to the level of “extreme
cruelty” even if one act, taken alone, does not rise to
the level of “extreme cruelty”.8
Fourth, the abusive family member had to be a
legal permanent resident or citizen during the time of
the abuse. If a child was severely battered by a parent
who never had legal status or was present in the United
States on a visa9, the abused child is not able to obtain
legal permanent residence through the approval of an I-
360 self-petition or the Cancellation of Removal
provisions of VAWA 2005. If the abusive parent was
never a legal permanent resident or citizen during the
time of the abuse, SIJ status or the U visa maybe
available for the child. The law becomes complicated
when the abusive parent was a legal permanent
resident or citizen, but lost such legal status due to the
abuser’s actions. Generally speaking, the law looks
first at how long ago the relationship was severed
between the child and the abusive parent, and
secondly, whether there was a nexus between the
abuser’s loss of legal status and the abuse. If the abuser
was a legal permanent resident or citizen, but
subsequently lost his or her status, the child may still
be eligible for VAWA benefits depending on when and
why the abuser lost his or her citizenship or status as a
5
If the biological parent is the mother of the child, the
parent-child relationship automatically exists. If the
biological parent is the father of the child the law is more
complex and additional factual and legal analysis may be
necessary to determine if the parent-child relationship exists
INA § 204(a); 8 C.F.R. § 204; INA § 240(A).
6
Supra note 3.
7
8 CFR 204.2(c)(1)(vi).
8
Id.
9
For example, if the abusive parent has been continually
present in the United States on a visa, such as a H1 visa,
during the abusive relationship, the abused child is not
eligible for VAWA benefits because the abuser, though
legally present in the United Stats, was not a legal permanent
resident or citizen.
Immigrant Issues Affecting Children in Foster Care
legal permanent resident. For example, if the abusive
parent was stripped of his legal permanent resident
status because he committed an act of domestic abuse,
the child may still be eligible for VAWA benefits
because there is a nexus between the loss of the
abuser’s legal permanent residency and the abuse.
The fifth level of inquiry is to decide whether the
child is a person of “good moral character”10 and
whether the child does not have any immigration or
criminal infractions that could prevent the child from
obtaining permission to reside permanently in the
United States.
2. Procedure to Apply for Benefits
Unlike the Special Immigrant Juvenile Visa where
a court applying state law must make specific findings
of fact and orders for the child to obtain immigration
benefits, to be eligible for VAWA benefits, the child’s
advocate does not need any special findings or orders
from a court making custody determinations based on
state law. To obtain VAWA benefits, only the
Department of Homeland Security11 and the Executive
Office of Immigration Review12, have jurisdiction to
receive and adjudicate VAWA benefits. If you
interview an immigrant child who is possibly eligible
for VAWA benefits, please see the Appendix to this
article for Texas organizations that provide immigrant
children free legal immigration services.
3. The Clock May be Ticking
Referrals to immigration providers for a child that
maybe be VAWA eligible, should be made as quickly
as possible. Depending on the situation, a child may
have until 25 years of ageor 21 years of age to self-
petition for benefits under VAWA13. Tthe child may
lose eligibility under VAWA if the child or the child’s
abused parent does not apply for benefits within certain
10
Children under the age of 14 are presumed to be of good
moral character and are excused from submitting police
clearance letters with self-petitions.
11
If the child that is VAWA eligible, and is not in
deportation proceedings before an Immigration Judge or
does not have a previous order of removal, the child maybe
able to submit a I-360, Petition for Amerasian, Widow or
Special Immigrant to obtain protection from deportation.
Simultaneously, or in some cases, at a later date, the child
can submit an I-485, Application for Legal Permanent
Residence, to become a legal permanent resident.
12
If the child, is in deportation proceedings, the child can
request Cancellation of Removal on EOIR-42B, Application
for Cancellation of Removal, if she is VAWA eligible. INA
240A(b)(2)
13
If a child’s does not submit a self-petition before 21 years-
of age, the child must prove that the child-abuse was a
reason not submitting a self-petition before the age of 21.
3
Chapter 56.2
deadlines.14 For example, if the abuser is a legal
permanent resident, the abuser may lose his or her
legal status in the United States because of the
domestic violence violation. If this is the case, the child
may need to apply for VAWA benefits within two
years of the loss of the abusive parent’s loss of legal
status. In some cases of a divorce between a parent
and an abusive step-parent, a child may lose VAWA
eligibility, if certain time deadlines are not met. For
example, if an abusive step-parent divorces a child’s
biological parent, the child, or the child’s parent, may
need to submit a self-petition for VAWA benefits
within 2 years of the final divorce decree.15
B. U Visa for Victims of Crime
The U visa is a nonimmigrant visa with the
possibility of securing lawful permanent residence
status for certain victims and witnesses of serious
crimes.16 Noting that immigrants in unlawful status
often hesitate to assist in the investigation and
prosecution of criminal activity, Congress established
the U visa to act as a carrot for immigrant’s
participation in the criminal legal system. To obtain the
U visa an immigrant must demonstrate that he or she:
1) is the victim of criminal activity occurring in
the United States or abroad;
2) suffered substantial physical or substantial
mental abuse as a result of the crime;
3) has or has been helpful in the investigation or
prosecution of the criminal activity UNLESS
the victim is a child under the age of 16. A
child under the age of 16 only need show that
a parent, guardian, or next friend, has or has
14
An abused spouse must submit a self-petition for VAWA
benefits within 2 years of a final divorce. If the child or an
abused spouse fails to submit a timely self-petition, the child
or abused spouse may still be eligible for benefits for
VAWA Cancellation of Removal before an immigration
judge.
15
Compare INA § 204(a)(1)(A) and 8 CFR § 294.2 (self-
petitioning under VAWA with INA § 204(A and 9 CFR
§1240.65 (Special Rule Cancellation of Removal).
16
In November 2000 Congress’ mandated the issuance of U
visas to encourage victims of crime to cooperate with law
enforcement. INA §§ 101(a)(15)(U); 8 U.S.C.
1101(a)(15)(U). To date the U visa is still nonexistent. When
a victim applies for a U visa and is approved, the victim will
receive such immigration benefits as deferred action,
employment authorization, parole, and stays of removal.
Memo, Cronin, Acting Ex. Assoc. Comm. Programs HQINV
50/1 (Aug. 30, 2001). Applications for deferred action and
employment authorization as interim relief are filed with the
USCIS Vermont Service Center.
Immigrant Issues Affecting Children in Foster Care
been helpful in the investigation
prosecution of the criminal activity.17
To demonstrate that the child satisfies the third prong,
a prosecutor, or other local, state or federal official
must certify that the child, or in the case of children
under 16, parent, guardian, or next friend, has been
helpful in the investigation or prosecution of the
criminal activity.18
C. T Visa for Cases of Human Slavery
In 2000 Congress created the T visa to protect
victims of “severe forms of trafficking”. The term
trafficking is a misnomer.19 The T visa does not protect
the majority of children that are held hostage, raped,
beaten, or otherwise brutalized by someone hired to
assist the child cross the United States border. With the
exception of forced prostitution, if a child cannot
demonstrate that someone used “force, fraud or
coercion” to induce the performance of the child’s
services, the child is not a victim of “human
trafficking”.20 Thus, if a child is found near death in the
back of a trailer upon being smuggled in the country,
the child is not going to be able to obtain a T visa
unless the child has performed (or is in route) to
performing commercial sex work or unpaid labor.
Even if a child was forced to perform unpaid labor, if
an individual over the age of 18 cannot demonstrate
compliance with reasonable requests for assistance in
the investigation or prosecution of the acts of
trafficking, the individual will not be eligible for a T
visa. Trafficking also protects children that must
perform sexual or labor services to pay off a debt; this
is known as peonage. An individual’s initial agreement
to incur a debt or to perform labor services to pay off a
debt does not allow an employer or smuggler to later
restrict the person’s freedom or to use force or threats
to obtain repayment.
If an immigrant child describes any instances of
entrapment in “commercial sexual exploitation such as
17
Id.
18
Id.
19
INA §§ 101(a)(15)(T); Trafficking Victims Protection Act
of 2000, Division A of Pub. L., 106-386, 114 Stat. 1464
(Oct. 28, 2000); Victims of Trafficking and Violence
Protection Act; H.R. Conf. Report No. 106-939; 8 C.F.R. §
214.11; 67 Fed. Reg. 4784 (Jan. 31, 2002); Torture Victims
Protection Reauthorization Act of 2003; Pub. L. 108-193,
117 Stat. 2875 (Dec. 19, 2003), H.R. 2620.
20
There is one narrow exception to the requirement that
“force, fraud, or coercion” had to be used to induce the
immigrant to perform sexual or labor services. If the child
was under the age of 18 that are used for commercial sexual
activity even if there is no force, fraud or coercion, the child
is a victim of trafficking.
Chapter 56.2
or prostitution, or labor exploitation in sweatshops,
domestic servitude, construction sites, and agricultural
settings”21 advocates should explore eligibility for a T
visa. The Trafficking Protection Act of 2000 is replete
with vivid language explaining that vulnerable victims,
including hundreds of children, fall prey to “rape and
other forms of sexual abuse, torture, starvation,
imprisonment, threats, psychological abuse, and
coercion” to perform profitable services for another.
When Congress created the T Visa it estimated that
approximately 50,000 women and children are
trafficked to the United States annually.
D. Asylum and Related Relief
When a child fears returning to his or her
homeland, the child is eligible for asylum22,
withholding of removal,23 or relief under the United
Nations Convention Against Torture24. To qualify for
these three forms of relief that protect a child from
deportation to the country of harm, a child applicant,
like their adult counterparts, must meet the definition
of a refugee in the INA.25 The refugee definition
protects children that have been persecuted or face a
well-founded fear of persecution because of the child’s
political opinion, religion, race, nationality, or
membership in a particular social group.26 Thus, the
21
U.S. DEP’T OF JUSTICE ET AL., ASSESSMENT OF
U.S. GOVERNMENT ACTIVITIES TO COMBAT
TRAFFICKIGN IN PERSONS (2004).
22
The definition of “refugee” is found at INA § 101(a)(42);
INA § 208; 8 U.S.C. §1101(a)(42).
23
INA §241(b)(3); 8 C.F.R. § 1208.16.
24
United Nations Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment,
subject to any reservations, understandings, declarations, and
provisos contained in the United States Senate resolution of
ratification of the Convention, as implemented by section
2242 of the Foreign Affairs Reform and Restructuring Act of
1998 (Pub.L. 105-277, 112 Stat. 2681, 2681-821); 8 C.F.R. §
1208.16 to 8 C.F.R. § 1208.18.
25
INA § 101(a)(42); INA § 208; 8 U.S.C. §1101(a)(42).
Memorandum from INS on Guidelines for Children's
Asylum Claims, to Asylum Officer Corps (Dec. 10, 1998);
UNHCR, Guidelines on Policies and Procedures in Dealing
with Unaccompanied Children Seeking Asylum (1997); U.S.
Department of Justice, Executive Office for Immigration
Review, Interim Operating Policies and Procedures
Memorandum 04-07: Guidelines for Immigration Court
Cases Involving Unaccompanied Alien Children,
Memorandum from the Office of the Chief Immigration
Judge (Sept. 16, 2004)
26
Id. What groups constitute a “particular social group” is a
matter of considerable controversy and uncertainty. The
group must share a common, immutable characteristic,
immutable either because the members of the group cannot
4
Immigrant Issues Affecting Children in Foster Care
refugee definition focuses on assessing the likelihood
and the severity of harm the child with face upon
return to the home country, as well as the reason why
the child has been harmed or is likely to be harmed.
The United Nations Convention Against Torture
protects individuals that are more than likely to be
tortured by a state actor.27
If you find that a child is fearful of returning to
their country of birth or last habitual residence, a
timely referral to an attorney with expertise in asylum
law is vital. Asylum law provides that absent
“exceptional circumstances”, if an applicant fails to
apply for asylum within one year of residing in the
United States, the applicant is not eligible for asylum.28
Also, applying for asylum law when a child does not
meet the technical definition of asylum, can result is
severe immigration consequences that may lead to a
child’s detention and ultimately, in the child’s
deportation.
E. Family Petition for Adopted and Orphaned
Child
Federal law permits citizens and legal permanent
residents to petition for their adopted child so that the
adopted child can reside permanently in the United
States.29 Similarly, citizens and legal permanent
residents can petition for an orphaned child.30 With
very few exceptions, if a child is not adopted by the
age of 16, the child cannot become a legal permanent
resident in the United States under the definition of an
adopted or orphaned child. Thus, for almost all
children adopted after their 16th birthday, the adoption
is not recognized as a legal act establishing a parent-
child relationship for immigration purposes.31 The only
exception to this rule is if the family adopts a child
under 18 years-old who is the natural sibling of another
adopted child who is under 16 years-old.32 In addition
to the general age requirement that a child be adopted
before his or her 16th birthday, it is necessary that the
child be in the legal custody and reside with the
change it or because the members of the group should not be
required to change it because it is fundamental to their being.
Broad demographic characteristics such as gender,
nationality or age are generally insufficient characteristics to
establish a particular social group.
27
See 8 C.F.R. § 1208.16 to 8 C.F.R. § 1208.18.
28
Supra note 22.
29
INA § 101(b)(1)(E)(i).
30
INA § 101(b)(1)(E)(ii).
31
Matter of Cariaga, 15 I&N Dec. 716, 717 (BIA 1976).
32
A natural sibling includes children “sharing one or both
biological parents. INS Memorandum, Pearson, Exe. Assoc.
Comm. HQADN 70/8.3 (Nov. 13, 2000).
5
Chapter 56.2
adoptive parent(s) for two years.33 The two years’
residency requirement can occur before or after the
adoption.
F. Family Petition for Child
Another route for an abused child to obtain legal
status is through an, I-130, Petition for a Alien
Relative, submitted on behalf of the child or the child’s
parent.34 As is the case for adopted and orphaned
children, United States citizens can petition for their
parents, biological children, step-children, spouses,
sons and daughters, and siblings. Legal permanent
residents can petition for their parents, spouses,
children, and unmarried sons and daughters.35 When
working with a child, it is important to ascertain if a
relative has submitted an I-130, Petition for Alien
Relative, for the child or the child’s parent. If the
child’s parent obtains legal permanent residency
through an approved family petition, the child may be
able to obtain legal permanent residency at or near the
same time as his or her parent. Let’s imagine a United
States citizen petitions for his El Salvadoran sister,
Blanca. When a visa becomes available for Blanca to
enter the United States as a resident, Blanca’s husband
and unmarried children are also allowed to enter the
United States as derivatives of Blanca.36
III. SPECIAL IMMIGRANT JUVENILE
STATUS FOR NEGLECTED, ABUSED, &
ABANDONED CHILDREN
A. Overview of SIJS Status
Neglected, abused and abandoned children are
able to apply to be categorized as a special immigrant
defined in section 101(a)(27)(J) of the Immigration and
Nationality Act (“INA”). Once categorized as a special
immigrant under INA § 101(a)(27)(J), the juvenile is
considered paroled into the United States. Paroled
special immigrant juveniles can request the
Department of Homeland Security’s benefits arm,
United States Citizenship and Immigration Service, to
approve their application for legal permanent resident
so the juvenile can permanently reside and work in the
United States. After five years of living in the United
States as a legal permanent resident, the child is often
eligible to become a naturalized citizen.
The Texas Family Code’s statutory provisions and
procedures come into play during the child’s attempt to
33
INA § 101(b)(1)(E); Matter of Lee, 19 I&N Dec. 119
(BIA 1984) (addressing the issue of residency for adoption).
34
INA § 201, INA § 203; INA § 204; 8 CFR § 204; 8 CFR §
245. To download form, read discussion of law, and to find
links to the statute and regulations visit www.uscis.gov
35
Id.
36
Id.
Immigrant Issues Affecting Children in Foster Care
obtain and hold onto the status of a special immigrant
pursuant to INA § 101(a)(27)(J). Once the child
becomes a legal permanent resident, the Texas Family
Code takes a back seat to federal law which controls
whether the child is eligible to naturalize.
B. Definition of Eligible Child
Federal law defines an abused, neglected or
abandoned child eligible to be categorized as a special
immigrant child as an alien that is under-twenty one
years of age and unmarried.37 Also, the child must
meet the following criteria:
(1) Has been declared dependent upon a juvenile
court located in the United States in
accordance with state law governing such
declarations of dependency, while the alien
was in the United States and under the
jurisdiction of the court38;
(2) Has been declared eligible for long-term
foster care;
(3) Continues to be dependent upon the juvenile
court for eligible for long-term foster care,
such declaration, dependency, or eligibility
not having been vacated, terminated or
otherwise ended; and
(4) Has been the subject of judicial proceedings
or administrative proceedings authorized or
recognized by the juvenile court in which it
has been determined that it would not be in
the alien’s best interest to be returned to the
country of nationality or last habitual
residence of the beneficiary or his or her
parent or parents39
If a child is found eligible for classification as a special
immigrant and the United States Citizenship and
Immigration Services approves the I-360, Petition for
Amerasian, Widow or Special Immigrant,40 the child is
deemed paroled. Once paroled, the child receives a thin
layer of protection from deportation and is one step
closer to obtaining legal permanent residency.
37
8 C.F.R. § 204.11(c).
38
INA § 101(a)(27)(J). The statute has no requirement that
the child be declared dependent on a juvenile court if the
child has been “legally committed to, or placed under the
custody of, an agency or department of a State”. INA §
101(a)(27)(J)(i) The regulatory language, in contradiction to
the language of the statute, requires that each child be
declared dependent upon a juvenile court. 8 C.F.R. §
204.11(c)(3).
39
8 C.F.R. § 204.11(c).
40
See Appendix for copy of I-360.
6
Chapter 56.2
1. When has a child been “Declared Dependent
Upon a Juvenile Court”?
a. What is a “juvenile court”?
Before a child can obtain a special immigrant
juvenile status, the child must obtain an order of
dependency from a “juvenile court.” Federal law
defines a juvenile court as a “court located in the
United States having jurisdiction under State law to
make judicial determinations about the custody and
care of juveniles”.41 What constitutes a juvenile court
under federal law differs from state to state. In
California, advocates have obtained special immigrant
juvenile status for children found dependent in
delinquency or dependency proceedings. In Texas,
children have been found to be dependent on a juvenile
court if a family or probate court had jurisdiction over
their cases.42
b. What does it mean to be “declared dependent
upon a juvenile court”?
Federal law mandates that a child seeking a
special immigrant juvenile visa demonstrate that a
juvenile court found that she or he was dependent on
their court or that the child has been legally committed
to or placed in custody of an agency or department of a
State. The Immigration and Nationality Act provides
that for a child to be eligible for a special immigrant
juvenile visa, the child needs to have
been declared dependent on a juvenile court
located in the United States or whom such a
court has legally committed to, or placed
under the custody of, an agency or
department of a State and
Because the terminology and concept of being
dependent on a court does not appear in the Texas
Family Code, your efforts to insert language that the
child is declared dependent upon the court in your
petitions and orders may be met with scorn by family
judges who view the language as meaningless
nonsense. Unfortunately, the federal regulations
interpreting the special immigrant juvenile visa are not
41
8 CFR § 204.11(a).
42
The Office of Administrative Appeals, a federal agency
with the mandate of reviewing decisions made by the United
States Citizenship and Immigration Services (formally the
Immigration and Naturalization Service) has broadly defined
the number of situations where a child in Texas will be
declared dependent upon a juvenile court to include
situations. See U.S. Department of Justice, Immigration and
Naturalization Service, Office of Administrative Appeals,
Petition for Special Immigrant Juvenile Pursuant to Section
203(b)(4) of the Immigration and Nationality Act, A
70110167, 12/27/1994.
Immigrant Issues Affecting Children in Foster Care
illustrative. The federal regulations require that the
child
[h]as been declared dependent upon a
juvenile court located in the United States in
accordance with the state law governing such
declarations of dependency, while the alien
was in the United States, and under the
jurisdiction of the court.43
Moreover, when submitting the I-360, Petition for
Amerasian, Widow or Special Immigrant, “I-360 self-
petition”44 so that the child can be classified as a
special immigrant juvenile, the regulations provide that
the child submit a “juvenile court order, issued by a
court of competent jurisdiction located in the United
States, showing the court has found the beneficiary to
be dependent upon the court.”45 When applying the
pre-1997 law, the administrative appeals unit of the
Immigration and Naturalization Service found that the
family court’s order need not contain specific language
that the child is dependent on the court.46 If it is
possible, attempt to obtain an order declaring the child
dependent on the court to prevent any legal question of
law of whether Congressional language must be
inserted into the juvenile court’s order. As advocates, it
is important to educate the judges that language
verifying the declared is dependent on the court is not
meaningless, and that such language should remain in
the final orders to ensure the child is not returned to his
or her country of origin. A copy of the special
immigrant juvenile visa statute47 and regulations48 that
requires a declaration that the child be declared
dependent on the juvenile court are included in the
Appendix of this article to assist you in educating the
judge.
43
8 C.F.R. § 204.11(a)(3).
44
See Appendix
45
8 C.F.R. § 204.11(d)(2)(i)
46
Besides the regulations found in 8 C.F.R. § 204.11 the
only agency guidance that the authors are aware of that shed
light on when a child is dependent on a Texas court is the
Office of Administrative Appeals decision mentioned at
supra note 42 at 4. In the administrative decision the court
states
[t]here is no requirement that the State court decree contain
the specific statement that the beneficiary is dependent on
the court. The acceptance of jurisdiction over the custody of
the child by a juvenile court, when the child’s parents have
effectively relinquished control of the chilid, makes the child
dependent upon the juvenile court, wehter the child is placed
by the court in foster care or, as here, in a guardian situation.
47
INA § 101(a)(27)(J)(i).
48
8 C.F.R. § 204.11(c)(3).
7
Chapter 56.2
2. When is a child eligible for long-term foster
care”?
The statute requires a juvenile court find the child
is eligible for long-term foster care and that the child is
“deemed eligible by that court for long-term foster care
due to abuse, neglect or abandonment.” Consistent
with the statute, the regulations provide that before a
child can obtain a special immigrant juvenile status,
there must be a finding that the child “[h]as been
deemed eligible by the juvenile court for long-term
foster care”49. Moreover, when submitting the I-360
self-petition, the regulations provide that the child
submit a “juvenile court order, issued by a court of
competent jurisdiction located in the United States,
showing that the court has found the beneficiary
eligible for long-term foster care.”50 Unlike the vacuum
left by a lack of a meaningful definition for when a
child is declared dependent upon a juvenile court, the
federal regulations shed light on when a child is
eligible for long-term foster care:
Eligible for long-term foster care means
that a determination has been made by the
juvenile court that family reunification is no
longer a viable option. A child who is
eligible for long-term foster care will
normally be expected to remain in foster care
until reaching the age of majority, unless the
child is adopted or placed in a guardianship
situation. ……a child who has been adopted
or placed in guardianship situation after
having been found dependent upon a juvenile
court in the United States will continue to be
considered to be eligible for long-term foster
care.51
We recommend that your orders contain the language
that the child is eligible for long-term foster care
because the child has been abused, neglected or
abandoned. If a judge wishes to strike the language
determining that the child is eligible for long-term
foster care, it is vital to educate the judge that this
language is not mandating that the state of Texas
expend any funds to house or protect the child, but
rather, the language has a specific meaning under the
federal regulations. If the judge remains uncomfortable
with the language, we recommend that your order
provide clarifying language that eligible for long-term
foster care means that family reunification is no longer
a viable option due to abuse, neglect or abandonment.
49
8 C.F.R. § 204.11(c)(4).
50
8 C.F.R. § 204.11(d)(2)(ii).
51
Id.
Immigrant Issues Affecting Children in Foster Care
3. How does federal law define abuse, neglect, or
abandonment?
There is no federal definition or guidance of what
acts constitute abuse, neglect, or abandonment. In this
federal statutory vacuum, it can be inferred that
Congress intended that the judges with “jurisdiction
under State law to make judicial determinations about
the custody and care, abuse, neglect and abandonment”
would rely on state law when deciding whether the
child has been abused, neglected or abandoned.
C. The Big Question, “Do I need Consent from the
Federal Government to Ask a Judge to Turn
the Golden Key?
In 1997, Congress amended the definition of
“special immigrant juvenile,” by requiring that the
Secretary of DHS (formerly the Attorney General)
provide consent to juvenile court dependency
jurisdiction.52 In the case of detained children, the
statute says:
“no juvenile court has jurisdiction to
determine the custody, status or placement of
an alien in the actual or constructive custody
of the Attorney General unless the Attorney
General specifically consents to such
jurisdiction.”53
Despite the passage of this amendment in 1997, no
regulations have been promulgated to implement the
consent portion of the statute. The SIJS regulations,
promulgated and approved prior to the 1997
amendment, do not address criteria for consent.54
There is quite a bit of guidance interpreting why
Congress required consent from the Attorney General
before obtaining an order from a juvenile court. There
is less guidance clarifying when specific consent is
actually required.55 This lack of guidance creates
52
INA § 101(a)(27)(J)(iii); 8 USC §1101(a)(27)(J)(iii), as
amended November 27, 1997, by Publ. L. 105-119, § 113,
111 Stat. 2440.
53
Id.
54
8 C.F.R. §204.11.
55
See F.L. v. Tommy Thompson, 293 F.Supp. 2d 86,
96(D.D.C. 2003)(noting that the “legislative history of the
1997 amendment to [8 U.S.C.]§1101 indicates that the
requirement of Attorney General consent was imposed as a
precondition to juvenile court jurisdiction in an effort to
ensure that SIJ applicants have a special need to remain in
the United States and do not use the process simply to gain
an immigration benefit. The Conference Report on the
Amendment states:
the language has been modified in order to limit the
beneficiaries of this provision to those
8
Chapter 56.2
serious complications for practitioners representing
children in foster care wondering if they need consent
from the federal government before they ask a judge to
turn the key and sign an order with all the federally
mandated language needed to qualify a child as a
special immigrant.
The Department of Homeland Security “DHS”
has issued three memorandums attempting to clarify
under what conditions consent is necessary, and under
what conditions consent will be granted. DHS takes the
position that if a child is in “constructive custody” of
the federal government, the child needs to obtain
“specific consent” from the Immigration Customs
Enforcement “ICE” before obtaining an order from a
court with the special immigrant language. If a
practitioner representing a child in “constructive
custody” obtains an order from a judge without
obtaining specific consent from DHS, the SIJS petition
will be denied.56 As explained in the latest Department
of Homeland memorandum on the issue:
“[i]n the case of juveniles in custody due to
their immigration status (either by US
Immigration and Customs Enforcement
(ICE) or by the Office of Refugee
Resettlement (ORR)), [and] the specific
consent must be obtained before the juvenile
may enter juvenile court dependency
proceedings; failure to do so will render
invalid any order issued as a result of such
proceedings.57
juveniles for whom it was created, namely abandoned,
neglected, or abused children, by
requiring the Attorney General to determine that neither the
dependency order nor the administrative or judicial
determination of the alien’s best interest was sought
primarily
for the purpose of obtaining the status of an alien lawfully
admitted for permanent residence, rather than for the
purpose of obtaining relief from abuse or neglect.
H.R. Rep. No. 105-405, at 2981 (1997), 1997 WL712946, at
130; see also M.B. v.Quarantillo, 301 F.3d 109, 115-116 (3d
Cir. 2002).
56
See DHS Memorandum, “ Memorandum #3 – Field
Guidance on Special Immigrant Juvenile Status Petitions”
(May 27, 2004) posted on AILA Infonet at Doc. No.
04062168 (6/21/04) “The adjudicator must be satisfied that
the petitioner obtained specific consent from ICE where
necessary. If specific consent was necessary but not timely
obtained, a juvenile court dependency order is not valid and
the petition must be denied.”
57
Id.
Immigrant Issues Affecting Children in Foster Care
1. Situations When Consent is Necessary
a. “Constructive Custody” of the Federal
Government.
While the need for specific consent is clear, what
constitutes “constructive custody” is not. Practitioners
have turned to policy memorandum58 and statements
made by public officials59 at CLE trainings to decipher
when a child needs to obtain consent from the
Department of Homeland Security prior to obtaining an
order from a juvenile court. 60 Practitioners have
summarized constructive custody to exist when the
federal government is providing financing for the care,
shelter or services provided to the child.61
Some children in foster care arrangements may be
determined to be in the “constructive custody” of the
federal government if the child was previously
detained in the Department of Homeland Security or
was in the Office of Refugee Resettlement’s care. If
the child is in state foster care and has never been
apprehended or processed by federal officials, the child
is not in constructive custody. If a child has been
apprehended by immigration authorities in the past, but
is now in foster care, it is not easy to decipher when
specific consent to enter state court is necessary.
Arrangements between state entities and the Office of
Refugee Resettlement and the Department of
Homeland Security are quite complex. What appears to
be a state placement of a child into foster care may in
fact be funded by the Office of Refugee Resettlement
or the Department of Homeland Security. The lack of
clear guidance leaves practitioners vulnerable to
incorrectly determining when consent is not required.
58
AILA Teleconference Tape on Special Immigrant Juvenile
Status, December 1, 2005 (Chris Nugent, for example, noted
in a recent exchange with a colleague on the Center for
Constitutional and Human Rights’ Special Immigrant Rights
listserve that John Pogash was explicit during the AILA call
that specific consent is not required when a child has been
released from ORR custody.)
59
John Pogash’s phone number is (202) 732-2913 and
address is: Mr. John J. Pogash, National Juvenile
Coordinator, U.S. Immigration and Customs Enforcement,
Office of Detention and Removal Operations, 801 I Street,
N.W., Suite 800, Washington, D.C. 20536. “Pogash is
charged with reviewing and deciding all specific consent
requests.” Zheng v. Pogash, Civ. Action No. H-06-197,
page 4, fn. 4 (S.D.Tex., filed 2/23/2006). Earlier, the D.C.
District Court determined that DHS, rather than the Office of
Refugee Resettlement (ORR) retains authority to grant
consent to juvenile court jurisdiction in SIJS cases. F.L. v.
Tommy Thompson, 293 F. Supp. 2d 86 (D.D.C. 2003).
60
AILA Teleconference Tape from December 1, 2005.
61
Anne Chandler, Kathleen Mocio, Judy Flanagan,
Immigration & Nationality Law Handbook, 2006-07
Edition, American Immigration Lawyers Association.
www.aila.org
9
Chapter 56.2
Family law practitioners should understand this
complexity and seek the assistance of an immigration
practitioner with experience in children’s issues to seek
advice on whether specific consent is necessary.
b. “Specific Consent” Requests
Because the federal government has not
promulgated regulations following Congress’ added
requirement, in 1997, that an abused, neglected or
abandoned child seek specific consent request, the only
guidance are Department of Homeland Security
memorandum. The most recent Memorandum, the
Yates Memorandum, purports to supersede all prior
guidance from the Department of Homeland Security
and its earlier counterpart, Immigration and Nationality
Service. The Yates Memorandum contains no criteria
or legal standards specifying when specific consents
should be granted. Advocates look to a1999 Cook
Memorandum which provides a two-part test for
specific consent.62 The Cook memo states the agency
should grant specific consent to juvenile court
jurisdiction if: 1) it appears that the juvenile would be
eligible for SIJS if a dependency order is issued; and 2)
in the judgment of the federal administrative official,
the dependency proceeding would be in the best
interest of the juvenile.63 Several courts have held that
the Cook Memorandum provides sufficient guidance
for review of agency abuse of discretion under the
Administrative Procedures Act.64
The Cook Memorandum indicates that requests
for consent must be in writing and directed to the
District Director (of then-INS, now USCIS) with
jurisdiction over the juvenile’s place of residence.
Current practice, however, is for consent requests to be
sent to John Pogash, National Juvenile Coordinator,
Immigration & Customs Enforcement, U.S.
62
“Special Immigrant Juveniles”, Memorandum #2:
Clarification of Interim Field Guidance, dated July 9, 1999,
Thomas E. Cook, Acting Assistant Commissioner (posted on
AILA InfoNet); see discussion in Appendix K, Special
Immigrant Juvenile Status For Children Under Juvenile
Court Jurisdiction, by Sally Kinoshita and Katherine Brady,
Immigrant Legal Resource Center, January 2005 (manual
available as a free download from the Immigrant Legal
Resource Center’s website, www.ilrc.org)
63
Cook Memorandum at ______________.
64
M.B. v. Quarantillo, 301 F.3d 109, 113 (3d Cir. 2002)(The
Cook Memorandum and SIJS regulation, 8 C.F.R. § 204.11
supply “some law to apply,” thus allowing judicial review);
A.A.-M v. Alberto Gonzales, C05-2012C, 2005 WL
3307531 at 2-3; Zheng v. Pogash, Civ. Action No. H-06-
197, page 4, fn. 4 (S.D.Tex. Filed 2/23/2006). See also, Yue
Yu v. Brown , 36 F. Supp. 2d 922 (D.N.M. 1999)(INS has
non-discretionary duty to process special immigrant juvenile
applications, though it has discretion in the ultimate decision
whether to grant LPR status).
Immigrant Issues Affecting Children in Foster Care
Department of Homeland Security, with copies to the
local United States Citizenship and Immigration
Services’ District Director, local Chief Counsel of
Immigration and Customs Enforcement, and the United
States and Citizenship and Immigration Juvenile
Coordinator.65
If a child in foster care has had no contact with
federal immigration officials, advocates should not
contact Department of Homeland Security to confirm
that a child does not need specific consent.
Information relating to a child’s specific consent
request is not confidential. Communicating with
federal authorities about a child who has not been
apprehended by Department of Homeland Security or
is not on Department of Homeland Security radar may
result in removal proceedings against the child.
c. Preparing Specific Consent Request from Federal
Government
A starting point for a specific consent request is a
detailed affidavit from the client to establish what
happened to him. Numerous interviews of the child
may be required to establish rapport and gain the
child’s trust. Painful details about the past may not be
revealed immediately. Therefore, if aging-out is an
issue, interviews of the client must start immediately.
The child’s affidavit should contain information about
the parents and why it would not be in the child’s best
interests to return to the home country.
To prevent denials based on the government’s
view that the child is not credible, it is helpful to obtain
a complete copy of previous statements made by the
child applicant. Typically, the client may be
interviewed by Department of Homeland Security or
an Office of Refugee Resettlement social worker or
caseworker, often before the advocate has contact with
the client. It is advisable to request a copy of the
client’s file, to include all client statements, intakes,
evaluations, incident reports, etc. The advocate should
compare the information gathered from the client with
the statements or reports prepared by government
employees. A Freedom of Information Act (FOIA)
request should be made to Department of Homeland
Security or an Office of Refugee Resettlement to
obtain these records. Given that it is taking up to a
year to get a response on a FOIA request, advocates
may need to make arrangements to view Department of
65
“Pogash is charged with reviewing and deciding all
specific consent requests.” Zheng v. Pogash, Civ. Action
No. H-06-197, page 4, fn. 4 (S.D.Tex., filed 2/23/2006).
Earlier, the D.C. District Court determined that DHS, rather
than the Office of Refugee Resettlement (ORR) retains
authority to grant consent to juvenile court jurisdiction in
SIJS cases. F.L. v. Tommy Thompson, 293 F. Supp. 2d 86
(D.D.C. 2003).
10
Chapter 56.2
Homeland Security or an Office of Refugee
Resettlement files separately.
When physical abuse is at issue, and visible
injuries or scars are present or pain is ongoing,
obtaining a forensic medical exam is advisable.
Photographs of any visible injuries or scars can be used
to document the case. Hospital or other medical
records, and copies of prescriptions for medication
used for treatment may be useful in establishing abuse.
Advocates may need to refer the child to a mental
health professional, such as a psychiatrist,
psychologist, social worker, or other therapist to
document psychological abuse. If a psychological
condition is diagnosed, supplement the record with a
copy of the description of the condition from the
American Psychiatric Association’s Diagnostic
Statistical Manual.66 Any previous records, such as
reports from therapists, should be obtained. Working
with professionals who have received training on the
issues to be addressed in SIJS or other immigration
cases makes your job much easier.
If a parent or guardian is deceased, a death
certificate should be obtained. Barring that, affidavits
from the client and family members or friends as to the
circumstances of the parent’s death will be necessary.
Police reports of abuse or any child welfare agency
reports, if any, should be gathered.
Documenting the child’s age can often be
difficult.67 The Special Immigrant Juvenile regulation
states that “documentary evidence of the alien’s age, in
the form of a birth certificate, passport, official foreign
identity document issued by a foreign government,
such as a Cartilla or a Cedula, or other document
which, in the discretion of the director, establishes the
beneficiary’s age” must be submitted in support of the
petition.68 The document, if not in English, must be
translated.
Included in the special consent request is evidence
that it is not in the best interests of the minor child to
return to his or her home country.69 Although the SIJS
statute clearly indicates the juvenile court must make
this determination, in consent cases, it is wise to
include best interest evidence with the request to
66
Diagnostic and Statistical Manual of Psychological
Disorders, American Psychiatric Association, rev. 2000.
67
8 C.F.R. § 204.11(d)(1).
68
Id.
69
INA §101(a)(27)(J)(i); 8 U.S.C.A. § 101(a)(27)(J)(i)
(administrative or judicial body must determine that it is
“would not be in the alien’s best interest to be returned to the
alien’s or parent’s previous country of nationality or country
of last habitual residence”).
Immigrant Issues Affecting Children in Foster Care
DHS.70 Documents as the State Department Country
Reports, State Department Consular Travel Warnings,
and any articles about the client’s home country that
discuss health and medical conditions, education, or
child welfare statistics in that country help provide
factual support for your claim as to why it is not in
your client’s best interest to return to his or her home
country. Evidence of the services available in the
United States that are not available or limited or
inaccessible to the client in his home country, such as
access to general health care, physical therapy, special
education, psychiatric services, and specialized health
care needs should be provided. The unavailability or
unwillingness of family members in the home country
to care for the minor child can be documented with the
child’s affidavit, affidavits of third parties, or perhaps
even from family members themselves.
D. Turning the Golden Key: Obtaining
theDependency Order for the Special
Immigrant Juvenile
There are several potential options immigrant
children have to protect them in the case of abuse,
neglect or abandonment. If your immigrant child
qualifies under the Special Immigrant Juvenile (SIJ)
regulations discussed earlier, the following discussion
will give you some insight as to what family law issues
you may need to consider as you work towards gaining
immigration protections for your client.
1. Definitions
As stated earlier in this paper, because federal law
does not define abuse, neglect, or abandonment,
Congress intended that state law would control. It is
important to have knowledge of these definitions when
establishing the proof needed for the required judicial
findings in the final custody/dependency order. The
Department of Homeland Security has begun
challenging some final custody orders by claiming lack
of proof of the judicial abuse, neglect, and/or
abandonment findings.
A child is “abandoned” when left without
provision for reasonable and necessary care or
supervision.71
The Texas Family code defines “abuse” several
ways. The definitions that appear to be most relevant
in these SIJ cases define abuse as mental or emotional
70
The Cook Memorandum indicates that evidence showing
that it would not be in the juvenile’s best interest to be
removed from the United States. “is crucial to obtaining the
Attorney General’s consent to the dependency order.”
“Special Immigrant Juveniles”, Memorandum #2:
Clarification of Interim Field Guidance, dated July 9, 1999,
Thomas E. Cook, Acting Assistant Commissioner.
71
Tex. Fam. Code Ann. §152.102(1).
11
Chapter 56.2
injury to a child that results in an observable and
material impairment of the child’s growth,
development, or psychological functioning72, physical
injury that results in substantial harm to the child, or
the genuine threat of substantial harm from physical
injury73, or failure to make a reasonable effort to
prevent an action by another person that results in
physical injury and substantial harm to the child.74
“Child” is defined as a person under 18 years of
age who is not and has not been married or who has
not had the disabilities of minority removed for general
purposes.75
A child is “neglected” when he/she is left in a
situation where they might be exposed to substantial
risk of harm, physical or mental, without arranging for
the child’s necessary care AND demonstrating an
intent not to return.76
2. Jurisdiction and Venue or Where Do I File?????
Federal law requires an order of dependency from
a “juvenile court”. Because “juvenile court” is defined
very broadly under the federal law related to SIJ, it
appears there are several courts with possible
jurisdiction where the required dependency orders may
be obtained. Depending on the Texas county where
the child resides, attorneys may find one court more
desirable than another for obtaining an order with the
required findings.
At first glance, when thinking of a “juvenile
court”, one thinks of those courts which regularly deal
with children who have been abused and neglected. If
the child is already in the custody of the Texas
Department of Protective and Regulatory Services
(TDPRS), a court has probably already assumed
jurisdiction of the child. In larger counties in Texas,
this may be a court which only handles cases dealing
with abused, neglected or abandoned children or with
children charged with delinquency. Because these
courts are familiar with abused, neglected, and
abandoned children and the children are often in foster
care, the courts are usually agreeable to including the
language required for the Special Immigrant Juvenile
under Federal Law. However, if the child is not
already in this particular dependency system, it may be
very difficult to convince the TDPRS to take custody
because their system is already overloaded.
If the child is with a family member or other
agency, jurisdiction should be in the court with home
state jurisdiction. Under the Uniform Child Custody
72
Tex. Fam. Code Ann §261.001(1)(A).
73
Tex. Fam. Code Ann §261.001(1)(C).
74
Tex. Fam. Code Ann §261.001(1)(D).
75
Tex. Fam. Code Ann. §101.003.
76
Tex. Fam. Code Ann §261.001(4).
Immigrant Issues Affecting Children in Foster Care
Jurisdiction Enforcement Act (UCCJEA)77, court’s of
this state have jurisdiction if this state is the home state
of the child or was the home state within six months of
the filing of the custody determination suit and at least
one parent or person acting as a parent still continues
to live in the state78 OR no other state’s court has
jurisdiction or the court of the home state declines
jurisdiction and one parent or a person acting as a
parent still has a significant connection to this state and
there is substantial evidence in this state regarding the
child.79 In the case of our SIJ custody cases, there may
be no home state because the child has not been in the
state (or even in the United States) for six months.
Additionally, under Texas Family Code 152.204,
courts of this state may exercise temporary emergency
jurisdiction if the child is in this state and has been
abandoned or an emergency order is needed to protect
the child.80 If no child custody determination is filed in
a court in the state having jurisdiction, the temporary
emergency order becomes a final order and this state
becomes the home state for the child.81 Thus, this code
provision may also be used to get the court order
needed to pursue SIJ status for the child.
Some immigration officials in Texas have argued
that because the Immigration and Nationality Act, the
federal statute, requires an order by a “juvenile” court,
Title 3 of the Texas Family Code applies and orders
from other courts are invalid. Texas Family Code
§51.02 definitions are cited in their argument,
specifically the definition for “nonoffender”. A where the child is in danger of aging out shortly after
nonoffender is defined as a child who is subject to the
jurisdiction of a court under abuse, dependency, or
neglect statutes under Title 5 for other than legally
prohibited conduct of the child; or has been taken into
custody and is being held solely for deportation out of
the United States.82 They then refer to the definition of
“child” within that same provision which defines the
upper boundaries of “child” as a person under 17 years
of age83 and claim that, for children who are turning 18
years of age, the courts have/had no jurisdiction to sign
an order such as the one needed for the Special
Immigrant Juvenile because the children were too old.
The counter argument is that Title 3 jurisdiction is
limited to cases involving delinquent conduct or
77
Tex. Fam. Code Ann. Chapter 152.
78
Tex. Fam. Code Ann. §152.201 (a).
79
Tex. Fam. Code Ann. §152.201(a)(2).
80
Tex. Fam. Code Ann. §152.204(a).
81
Tex. Fam. Code Ann. §152.204(b).
82
Tex. Fam. Code Ann. §51.02(8).
83
Tex. Fam. Code Ann. §51.02(2).
12
Chapter 56.2
conduct indicating a need for supervision84and our
child clients or children involved in the SIJ
proceedings have not been involved in delinquent
conduct. Although Title 3 defines “child” and includes
children held for deportation, these children are
defined under “non-offender” and there seems to be no
reference to “nonoffenders” under the jurisdiction
section of Title 3.
Because of the broad definition of “juvenile
court” within the SIJ statute85, there is also the
possibility that an Order Appointing a Guardian
obtained in Probate Court would meet the requirements
for the SIJ petition as long as the required language
discussed earlier in this paper is included in the final
Order. A guardianship over the person or estate may
be obtained over an “incapacitated person” 86 which
includes a minor. A “minor” is defined in the Probate
Code as “a person who is younger than eighteen years
of age and who has never been married or who has not
had the person’s disabilities of minority removed for
general purposes”.87 This definition is similar to the
definition in the Texas Family Code discussed earlier.
A Probate Court has jurisdiction over the “minor” child
as discussed above and the venue is in “the county in
which the proposed ward resides or is located on the
date the application is filed”.88 There appears to be no
requirement regarding the length of residence in a
particular county prior to a Probate Court acquiring
jurisdiction and venue. This may be beneficial in cases
arriving in Texas or shortly after your representation of
the child begins. Aging out occurs if an immigration
judge or the USCIS official finds that the child is no
longer eligible as a special immigrant because the child
has turned twenty-one years of age or the “juvenile
court” has lost jurisdiction. If you believe the Probate
Court judge will be open to including the language in
the order required under the SIJ statute, then filing
your SIJ custody petition in the Probate Court may be a
more expedient way to proceed.
3. Who Has Standing to be the Petitioner or Who
Can File???
Federal law related to SIJ children does not
specify who qualifies as a custodian for SIJ purposes.
Therefore, any person who qualifies under Texas
84
Tex. Fam. Code Ann. §51.04(a).
85
8 C.F.R. §204.11(a). A court located in the United States
having jurisdiction under State law to make judicial
determinations about the custody and care of juveniles.
86
Tex. Prob. Code 601(14)(A); “Incapacitated Person”
means: a minor …
87
Tex. Prob. Code 601(16).
88
Tex. Prob. Code 610(a).
Immigrant Issues Affecting Children in Foster Care
Family Code 102.00389 will fit the bill. Typically, in
these SIJ cases, the most likely petitioner is a
governmental entity,90 an authorized agency,91a
licensed child placing agency92 such as St. Jerome’s
Catholic Church in Houston, Texas, an arm of Catholic
Charities, a person who has had actual care, control,
and possession of the child for at least six months,93 or
a person who is a relative of the child within the third
degree if the child’s parents are deceased at the time of
the filing.94 The children placed at many of these
agencies are in the custody of the Office of Refugee
Resettlement under the Department of Homeland
Security; thus consent is required prior to finalizing the
custody petition.
If the child is in danger of turning eighteen (18)
and aging out of the system, be sure to begin talking
immediately with the person or agency with actual
possession of the child to see who will be the
representative for standing purposes. The Federal
regulations which require consent by the Department
of Homeland Security if the child is in custody do not
specify the consent must be obtained prior to filing the
petition for custody. However, if the child is in the
custody of the Office of Refugee Resettlement, that
office will require consent prior to filing the custody
petition. They will not agree to begin the custody
process as the Petitioner until the consent is obtained.
In some cases where the child is in custody but in the
care of Catholic Charities, a Catholic Charities staff
member may agree to be the named Petitioner for
custody purposes. Knowing who will be the petitioner
is important if the child is nearly eighteen because the
custody case can take several months especially in
cases where the parents’ location is unknown. In cases
where the Department of Homeland Security has
granted specific consent, a representative of the Office
of Refugee Resettlement, may be willing to stand as
the Petitioner.
Under the Texas Probate Code, “any person has
the right to commence any guardianship proceeding”.95
This appears to be a very broad definition and provides
for standing for a wider scope of persons than is
permitted under the Texas Family Code.
Additionally, as part of the decision identifying
the petitioner is clarifying who you are representing.
In most cases, you are representing the adult petitioner,
89
Tex. Fam. Code Ann. §102.003
90
Tex. Fam. Code Ann. §102.003(5)
91
Tex. Fam. Code Ann. §102.003(6)
92
Tex. Fam. Code Ann. §102.003 (7)
93
Tex. Fam. Code Ann. §102.003 (9)
94
Tex. Fam. Code Ann. §102.003 (13)
95
Tex. Prob. Code 642(a).
13
Chapter 56.2
not the child, in the custody case. Due to potential
conflicts arising, the child and the custodian must be
made fully aware regarding you allegiance as the
attorney of record.
4. Who Gets Notice of the Suit???
Because the suit filed in the “juvenile court” is a
custody case, notice must be given as in any custody
case, including any parent or other person who has
legal custody. Just as in our more usual custody cases
where the father’s name is unknown, these SIJ cases
sometimes have the same problems. In fact, because of
local customs regarding who one calls “mom” or
“dad”, the true biological parents may be unknown.
In many SIJ cases, the parents’ addresses are
unknown; this allows the court to easily make a finding
of abandonment. If one or both parents are deceased,
death certificates should be obtained, if possible. In
some cases, there is already a finding from the
Immigration Court that one or both parents are
deceased and a copy of that finding can be attached to
the petition for custody. Additionally, in cases where a
death certificate is not available, the court may accept
affidavits from people with knowledge regarding the
circumstances surrounding and proof of the death(s) of
the parent(s).
If the parent’s address is known, the parent may
be willing to sign a Waiver of Service. In the case of a
waiver of service, it may be necessary to translate the
waiver into the parent’s native language and to include
additional information in the waiver that makes it clear
the parent understands the nature of the lawsuit in the
United States. If the parent is not willing to sign a
waiver, it is becomes more difficult to obtain personal
service in the foreign country where the parent resides.
The Texas Rules of Civil Procedure allow service of
process in a foreign county in several ways including
service in the manner allowed for service in general
jurisdiction cases filed in that country or in a method as
directed by that foreign authority in response to a letter
rogatory or a letter of request. 96 The Texas Rules also
allow service by registered mail.97 In some cases a
Motion and Order for alternative service in the foreign
country may be made pursuant to Texas Rules of Civil
Procedure Rule 10698 allowing the court to order a
method of service other than service by a person
authorized by Texas Rules of Civil Procedure Rule
103. For example, a Motion for alternative service
may be filed with an order allowing service through a
company such as DHL or Federal Express. In many
cases, service by publication is required because of the
96
Tex. R. Civ. Proc. §108a.
97
Tex. R. Civ. .Proc. §106(a)(2).
98
Tex. R. Civ. Proc. §106.
Immigrant Issues Affecting Children in Foster Care
lack of information regarding the parents. If this is the
case, be sure to timely request an ad litem following
the publication. In some cases, the ad litem may
require publication in the home country of the parent.
If the decision has been made to file in Probate
Court, the parents of the proposed ward are required to
be personally served with citation if their whereabouts
are “known or can be reasonably ascertained”.99 There
appears to be no requirement of either publication of
citation on the parent(s) or that an ad litem be
appointed to represent the parent.
5. Filing the Petition—Who Gets Notice???
In many ways the petition filed to obtain the SIJ
required custody order is the same as any other custody
petition filed in Texas. It is recommended that you
title your petition simply “Petition in Suit Affecting the
Parent-Child Relationship” as you would any other
custody petition. Otherwise, we have found the
District Clerk’s office gets confused and doesn’t know
what to do with your petition. Once you have filed, the
case should proceed as any other custody case. In
some cases, the court will appoint an amicus ad litem
to represent the child. We do not routinely request such
an appointment. A copy of a Sample Petition is
attached to this paper as Appendix A.
6. Final Order and Final Trial
The final hearing in your case should proceed as
in any other custody case. However, when obtaining
the order from a judge with jurisdiction to make
custody decisions based on Texas law, it is necessary
to be prepared to educate the judge about federal
immigration law. The orders must contain language
that the child:
• is dependent on the court
• is eligible for long term foster care
• has been abused, neglected or abandoned
• Best interests of the child to remain in the US
Further the order should contain:
• Specific factual findings to support order &
• In cases where the child may “age out”
specific language providing that the court
retain jurisdiction over the case despite the
child turning eighteen years of age.
The specific factual findings should be included in the
order to ensure that the child does not have difficulties
convincing DHS that the order should be given full
legal affect. DHS has instructed adjudicators that they
“generally should not second-guess the court rulings or
99
Tex. Prob. Code 633(c)(2).
14
Chapter 56.2
question whether the court’s order was properly
issued.”100
In instances where the child is over sixteen years-
old, practitioners should consult with an immigration
attorney about the possible need to obtain specific
language in the order protecting against the child
“aging out.” The processing time from the moment the
order is granted to the time where a juvenile beomes a
legal permanent resident as a special immigrant
juvenile, can be anywhere from a couple of months to
over a year. Some judges have issued guidance
suggesting that the juvenile court retain jurisdiction
past the age of eighteen for children who may be
eligible for special immigrant juvenile relief. Other
courts are amenable to retaining jurisdiction if the
attorney files a motion with the Court.
It is important to provide as much evidence as
possible regarding the required findings in the final
order. You may need proof from witnesses of
Petitioner’s efforts to locate the parents OR proof the
parent(s) are deceased. Additionally, there must be
proof of the abuse, neglect or abandonment required
for the finding in the final order. In some cases, the
Immigration Service has contested the custody order
claiming the abuse, neglect and/or abandonment was
not proven. The Service may go so far as to request a
copy of the hearing transcript to prove the lack of
evidence. If the required language is not in the final
order, you may not be able to finalize the SIJ status for
your client. A copy of a sample final order is attached
to this paper in the Appendix B.
E. Final Stretch: Submitting I-360 Self Petition
and Applying to Adjust Status as a Legal
Permanent Resident
After obtaining an order from a judge with the
special immigrant language, a child must leap over two
additional hurdles to successfully obtain permanent
resident status. First, the benefits branch of DHS,
United States Citizenship and Immigration Services
must approve the Form I-360. Second, the child must
also obtain approval of his or her Application for
Adjustment of Status, form I-485 by the USCIS if the
child is not in removal proceedings, or an immigration
judge of Executive Office of Immigration Review if
the child is in removal proceedings. Each hurdle will
be discussed individually.
1. I-360 Self Petition
a. Approval of I-360
The I-360 self-petition, if approved, grants the
child a bases to seek legal permanent residency status
100
See Perez-Olano v. Alberto Gonzalez, Case No. CV-05-
3604 DDP (RZx)(Dist. Ct. CD Ca. Filed 2005)
Immigrant Issues Affecting Children in Foster Care
under INA § 101(a)(27)(J).101 The approval of the I-
360 self-petition is referred to by DHS Memorandum
as “express consent”. For children that are not in
removal proceedings before an immigration judge of
the Department of Justice, Executive Office of
Immigration Review, there could be a risk of filing the
I-360 self-petition. If the self-petition is denied, the
child may be referred by DHS to an immigration judge
for removal proceedings.
USCIS guidance provides that the special
immigrant juvenile petition must be supported with the
following documentation:
• Court order declaring dependency on the
juvenile court or placing the juvenile under
(or legally committing the juvenile to) the
custody of an agency or department of a
State;
• Court order deeming the juvenile eligible for
long-term foster care due to abuse, neglect,
or abandonment (i.e. a determination that
family reunification is no longer a viable
option)
• Determination from an administrative or
judicial proceeding that it is in the juvenile’s
best interest not to be returned to his/her
country of nationality or last habitual
residence; and
• Proof of the juvenile’s age.102
To adjudicate the petition, United States Citizenship
and Immigration Services reviews the evidence to
determine whether the Court’s order was issued to
obtain relief from abuse or neglect or abandonment. If
United States Citizenship and Immigration Service
finds that the primarily for the purpose of the court’s
order was to obtain immigration relief, the I-360 self-
petition will be denied. Thus, it is important that the
order contain sufficient findings of fact to show that
the Court made an informed decision in finding the
101
8 CFR § 204.11(b)(1).
102
8 CFR § 204.11(d)(1). The regulations, while listing the
types of documents that may establish the child’s age,
recognize that children may not have birth certificates,
passports, or other foreign identity documents and
specifically provide that other documents can establish the
child’s age. If the birth certificate cannot be located, other
records that may establish age include baptismal certificates,
affidavits, school records, and census records. If none of
these records are available, the practitioner could obtain an
expert medical opinion regarding age or argue that the state
court finding of fact regarding the child’s birth date is
sufficient.
15
Chapter 56.2
child was in need of relief due to abuse, neglect, or
abandonment.103
b. Keeping the Approved I-360 Alive
Approval of a Special Immigrant Juvenile I-360
self-petition may be revoked if the child reaches 21
years of age prior to the approval of lawful permanent
resident status, marries, ceases to be eligible for long
term foster care, or ceases to be under juvenile court
jurisdiction.104 Across the nation there appears to be a
pattern of United States Citizenship and Immigration
Service issuing Notice of Intent to Deny the I-360 self-
petition. The Notice of Intent to Deny often include
requests for United States Citizenship and Immigration
Service to obtain copies of the entire paper trail that the
court applying state law relied upon when granting the
order with the special immigrant juvenile language.
2. Adjustment of Status
Federal law provides that a child with an approved
I-360 may obtain permanent residency through
adjustment of status until the child reaches 21. As
discussed above, this statutory age cut-off date is
illusory and misleading in states such as Texas where
courts generally retain jurisdiction over juvenile cases
only until the child turns eighteen. The Immigration
and Nationality Act provides that a child is no longer
eligible to adjust status as a legal permanent resident if
one of the following occurs:
1. The child marries;
2. The child ceases to be eligible for long term
foster care; or
3. The child ceases to be under juvenile court
jurisdiction.105
In addition to these specific requirements applicants
adjusting status must prove that they are they are not
inadmissible, that is none of the grounds of
inadmissibility apply to them. See INA 212(a). Federal
law provides that many of the grounds of
inadmissibility listed in INA 212(a) do not apply to
children adjustment status because of their status as a
special immigrant juvenile. Specifically, special
immigrant juveniles are exempt from inadmissibility
for likelihood of becoming a public charge, lack of
103
DHS has instructed adjudicators that they generally
should not second-guess the court rulings or question
whether the court’s order was properly issued.
104
8 CFR § 204.11(c). Please note the statute does not
include the regulatory requirement that children remain
unmarried.
105
8 CFR § 204.11(c).
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

labor certification, and failure to possess a valid visa.106

Most grounds of inadmissibility applicable to special
immigrant juvenile applicants can be waived for
humanitarian purposes, family unity, or when it is in
the public interest.107

PART III.APPENDIX: SAMPLE MATERIALS,

LAW AND REFERRALS
A. Sample Special Immigrant Juvenile Custody
Petition
B. Special Immigrant Juvenile Custody Final
Order
C. I-360, Self-Petition
D. G-28
E. Sample Letter Requesting Consent from
Federal Government to Enter State Court
Proceedings
F. Copy of Special Immigrant Juvenile Statutory
Authority
G. Copy of Special Immigrant Juvenile
Regulatory Authority
H. List of State-Wide Immigration Agencies and
Resources

106
See INA § 245(h)(2)(A).
107
See INA § 245(h)(2)(B).
16
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

APPENDIX A
SPECIAL IMMIGRANT JUVENILE PETITION

Cause No. ______________

In the Interest of: § IN THE DISTRICT COURT

§
§ _____JUDICIAL DISTRICT
, a Child §
§ HARRIS COUNTY, TEXAS
§
§

PETITION IN SUIT AFFECTING PARENT-CHILD RELATIONSHIP

1. Discovery
Discovery in this case is intended to be conducted under level 2 of Rule 190 of the Texas Rules of Civil
Procedure.
2. Parties
This suit is brought by , Petitioner. is a minor child, age in the custody of
.
3. Petitioner’s Relationship to the Respondent
The Petitioner, , is the agency (or individual) that has had the actual care, control and possession
of this child for at least six months preceding the filing of this petition. The child has been placed with the Petitioner
by the Department of Homeland Security, and Catholic Charities has been given complete responsibility for his care
and welfare. The Petitioner has been authorized by the Department of Homeland Security to make decisions
regarding the health and welfare of the child. He/She has been in the Petitioner’s care since .
4. Standing
The Petitioner has standing to bring this suit under Sec. 102.003 of the Texas Family Code in that the Petitioner
is an authorized agency. Although the child, an immigrant juvenile, was originally in the custody of the Department
of Homeland Security (DHS), care, control and possession of the child was placed with the Associated Catholic
Charities in , where the child has remained since that time.
5. Jurisdiction
No court has continuing jurisdiction of this suit, or of the child the subject of this suit.
6. Child
The following child is the subject of this suit:
Name: XXXXXXXXX
Sex: Male (Female)
Birth Date:
County of Residence:

7. Persons Entitled To Citation

The following persons are entitled to citation:
The mother of the child, the subject of this suit is .

17
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

The whereabouts of XXXXXXXXX, Respondent’s mother are unknown. She has not been seen since
. She was last seen in . Her last known address is:

The International Red Cross has attempted to find her and contact her. She has not been found despite numerous
efforts.
Service by publication is necessary for the reasons stated above. See also attached letters from
showing why service by publication is necessary.

The father of the child is . He is deceased. He was killed.died in

in .
No service is possible in that the Respondents father is deceased.
8. Court-Ordered Relationships
There are no court-ordered conservatorships, court-ordered guardianships or other court-ordered relationships
affecting the child, the subject of this suit.
9. UCCJEA Information (Sec. 152.209)
The child presently resides with the . He has resided there since . Prior to that
time he resided in with from to ..
10. Long-Arm Jurisdiction
XXXXXXXXX, named above, is a non-resident entitled to citation. The Child resides in Texas as a result of the
acts or directives of .
11. Health Insurance Information
Information required by Section 154.181(b)(i) is provided in the statement attached.
12. Property
No property of any consequence is owned or possessed by the child, the subject of this suit.
13. Abuse and Abandonment of Child
The child, the subject of this suit, has been abandoned, neglected and abused. GIVE A FEW BASIC FACTS
HERE.
14. Best Interest of the Child
It is not in the best interests of this child to be returned to , his country of nationality and last habitual
residence. Petitioner, on final hearing, should be appointed Sole Managing Conservator of the child, with all the
rights and duties of a non-parent sole managing conservator.
15. Long Term Foster Care
The child should be declared dependent on the juvenile court in Harris County and deemed eligible for long term
foster care due to abuse, abandonment and neglect.
16. Prayer
Petitioner prays that citation and notice issue as required and that the Court enter its orders in accordance
with the allegations contained in this petition.

18
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

Petitioner requests that the Court declare the child, the subject of this suit, XXXXXXXXX dependent on this
court and eligible for long term foster care due to abuse, neglect and abandonment.
Petitioner prays that this Court find that it is not in the child’s best interest to be returned to
, the country of his/her nationality and last habitual residence.
Petitioner prays that appropriate orders be made for conservatorship of the child.
Petitioner prays for general relief.

Respectfully submitted,

______________________________
Attorney for Petitioner
SBN:

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Immigrant Issues Affecting Children in Foster Care Chapter 56.2

APPENDIX B
SPECIAL IMMIGRANT JUVENILE ORDER

NO.

IN THE INTEREST OF § IN THE DISTRICT COURT

§
TH
XXXXXXXXX, § JUDICIAL DISTRICT
§
A CHILD § HARRIS COUNTY, TEXAS

ORDER IN SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP AND FOR DECLARATION OF

DEPENDANCY
On the Court heard this case.
Appearances
Petitioner, , by and through their/his/her attorney, , appeared in person and
through attorney of record and announced ready for trial.
XXXXXXXXX, the presumed/biological/alleged father of the child, is deceased.
XXXXXXXXX, the biological mother of the child, was given notice of this suit by publication and did not
otherwise appear.
Also appearing was , appointed by this court to represent XXXXXXXXX who was served by publication.
Jurisdiction
The Court, after examining the record and the evidence and argument of counsel, finds that it has jurisdiction of this
case and of all the parties and that no other court has continuing, exclusive jurisdiction of this case. All persons entitled
to citation were properly cited. The Court further finds that the child, the subject of this suit, has been in the custody of
since .
Jury
A jury was waived, and all questions of fact and of law were submitted to the Court.
Record
The making of a record of testimony was made by the official court reporter of the State District Court,
Houston, Harris County, Texas.
Child
The Court finds that the following child is the subject of this suit:

Name: XXXXXXXXX
Sex: Male/Female
Birthplace:
Birth date:
Present residence: with Petitioner
Home state: Texas

Findings
The Court finds the child, the subject of this suit and a dependent of this court, has been abandoned, neglected
and abused. The Court further finds that the father was murdered in 1990 when the child was one year of age, that
20
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

the mother of the child has disappeared and has not been seen or heard from since 2002 despite attempts by the
International Red Cross and Catholic Charities to locate her, that the child was abused by the authorities in ,
his/her country of birth, and that the child is eligible for long term foster care due to the abandonment, abuse and
neglect.
The Court further finds that it is not in the child’s best interest to be returned to , his/her country of
birth and his/her last habitual residence.
Conservatorship
The Court finds that the following orders are in the best interest of the child.
IT IS ORDERED that is appointed Sole Managing Conservator of the following child:
XXXXXXXXX.
IT IS ORDERED that, at all times, , as a sole managing conservator, shall have the following rights
and duties:
1. the right to have physical possession and to direct the moral and religious training of the child;

2. the duty of care, control, protection, and reasonable discipline of the child;

3. the duty to provide the child with clothing, food, shelter, education, and medical, psychological, and dental
care;

4. the right to consent for the child to medical, psychiatric, psychological, dental, and surgical treatment and
to have access to the child's medical records;

5. the right to receive and give receipt for payments for the support of the child and to hold or disburse funds for
the benefit of the child;

6. the right to the services and earnings of the child;

7. the right to consent to marriage and to enlistment in the armed forces of the United States;

8. the right to represent the child in legal action and to make other decisions of substantial legal significance
concerning the child;

9. except when a guardian of the child's estates or a guardian or attorney ad litem has been appointed for the
child, the right to act as an agent of the child in relation to the child's estate if the child's action is required by a state,
the United States, or a foreign government;

10. the right to designate the primary residence of the child and to make decisions regarding the child's education.

11. the right to receive information concerning the health, education, and welfare of the child;

12. the right of access to medical, dental, psychological, and educational records of the child;

13. the right to consult with a physician, dentist, or psychologist of the child;

14. the right to consult with school officials concerning the children's welfare and educational status, including
school activities;

21
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

15. the right to attend school activities;

16. the right to be designated on the child's records as a person to be notified in case of an emergency;

17. the right to manage the estate of the child to the extent the estate has been created by the parent or the
parent's family.

18. the duty to support the child, including providing the child with clothing, food, shelter, and medical and
dental care not involving an invasive procedure;

19. the right to consent for the child to medical and dental care not involving an invasive procedure; and

20. the right to consent for the child to medical, dental, and surgical treatment during an emergency involving
immediate danger to the health and safety of the child;

IT IS ORDERED that shall, each twelve months after the date of this order, file with the
Court a report of facts concerning the child's welfare, including the child's whereabouts and physical condition.
The Court finds that because the biological mother’s whereabouts are unknown and the presumed father is
deceased there is no need to make further orders regarding the conservatorship of the child.
Required Information
The information required for each party by section 105.006(a) of the Texas Family Code is as follows:

Name:
Social Security number: N/A
Driver's license number and issuing state:
Current residence address:
Mailing address: same
Home telephone number:
Name of employer:
Address of employment:
Work telephone number:

Name: XXXXXXXXX
Social Security number:
Driver's license number and issuing state:
Current residence address:
Mailing address:
Home telephone number:
Name of employer:
Address of employment:
Work telephone number:

Name: XXXXXXXXX
Social Security number:
Driver's license number and issuing state:
Current residence address:
Mailing address:
Home telephone number:
Name of employer:
Address of employment:
Work telephone number:

22
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

Required Notices
EACH PERSON WHO IS A PARTY TO THIS ORDER IS ORDERED TO NOTIFY EACH OTHER PARTY,
THE COURT, AND THE STATE CASE REGISTRY OF ANY CHANGE IN THE PARTY'S CURRENT
RESIDENCE ADDRESS, MAILING ADDRESS, HOME TELEPHONE NUMBER, NAME OF EMPLOYER,
ADDRESS OF EMPLOYMENT, AND WORK TELEPHONE NUMBER. THE PARTY IS ORDERED TO GIVE
NOTICE OF AN INTENDED CHANGE IN ANY OF THE REQUIRED INFORMATION TO EACH OTHER
PARTY, THE COURT, AND THE STATE CASE REGISTRY ON OR BEFORE THE 60TH DAY BEFORE THE
INTENDED CHANGE. IF THE PARTY DOES NOT KNOW OR COULD NOT HAVE KNOWN OF THE
CHANGE IN SUFFICIENT TIME TO PROVIDE 60-DAY NOTICE, THE PARTY IS ORDERED TO GIVE NOTICE
OF THE CHANGE ON OR BEFORE THE FIFTH DAY AFTER THE DATE THAT THE PARTY KNOWS OF THE
CHANGE.
THE DUTY TO FURNISH THIS INFORMATION TO EACH OTHER PARTY, THE COURT, AND THE
STATE CASE REGISTRY CONTINUES AS LONG AS ANY PERSON, BY VIRTUE OF THIS ORDER, IS UNDER
AN OBLIGATION TO PAY CHILD SUPPORT OR ENTITLED TO POSSESSION OF OR ACCESS TO A CHILD.
FAILURE BY A PARTY TO OBEY THE ORDER OF THIS COURT TO PROVIDE EACH OTHER PARTY,
THE COURT, AND THE STATE CASE REGISTRY WITH THE CHANGE IN THE REQUIRED INFORMATION
MAY RESULT IN FURTHER LITIGATION TO ENFORCE THE ORDER, INCLUDING CONTEMPT OF COURT.
A FINDING OF CONTEMPT MAY BE PUNISHED BY CONFINEMENT IN JAIL FOR UP TO SIX MONTHS, A
FINE OF UP TO $500 FOR EACH VIOLATION, AND A MONEY JUDGMENT FOR PAYMENT OF
ATTORNEY'S FEES AND COURT COSTS.
Notice shall be given to the other party by delivering a copy of the notice to the party by registered or certified mail,
return receipt requested. Notice shall be given to the Court by delivering a copy of the notice either in person to the clerk
of the Court or by registered or certified mail addressed to the clerk. Notice shall be given to the state case registry by
mailing a copy of the notice to State Case Registry, Central File Maintenance, P.O. Box 12048, Austin, Texas 78711-
20448.
Warnings
WARNINGS TO PARTIES: FAILURE TO OBEY A COURT ORDER FOR CHILD SUPPORT OR FOR
POSSESSION OF OR ACCESS TO A CHILD MAY RESULT IN FURTHER LITIGATION TO ENFORCE THE
ORDER, INCLUDING CONTEMPT OF COURT. A FINDING OF CONTEMPT MAY BE PUNISHED BY
CONFINEMENT IN JAIL FOR UP TO SIX MONTHS, A FINE OF UP TO $500 FOR EACH VIOLATION, AND A
MONEY JUDGMENT FOR PAYMENT OF ATTORNEY'S FEES AND COURT COSTS.
FAILURE OF A PARTY TO MAKE A CHILD SUPPORT PAYMENT TO THE PLACE AND IN THE
MANNER REQUIRED BY A COURT ORDER MAY RESULT IN THE PARTY'S NOT RECEIVING CREDIT FOR
MAKING THE PAYMENT.
FAILURE OF A PARTY TO PAY CHILD SUPPORT DOES NOT JUSTIFY DENYING THAT PARTY
COURT-ORDERED POSSESSION OF OR ACCESS TO A CHILD. REFUSAL BY A PARTY TO ALLOW
POSSESSION OF OR ACCESS TO A CHILD DOES NOT JUSTIFY FAILURE TO PAY COURT-ORDERED
CHILD SUPPORT TO THAT PARTY.
23
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

Attorney's Fees
IT IS ORDERED that attorney's fees are to be borne by the party who incurred them.
IT IS ORDERED that costs of court are to be borne by the party who incurred them.
Clarifying Orders
Without affecting the finality of this Order in Suit Affecting Parent-Child Relationship, this Court expressly
reserves the right to make orders necessary to clarify and enforce this decree.

Relief Not Granted

IT IS ORDERED that all relief requested in this case and not expressly granted is denied.
Date of Order
SIGNED on

JUDGE PRESIDING

APPROVED AND CONSENTED TO AS TO BOTH FORM AND SUBSTANCE:

Petitioner

APPROVED AS TO FORM ONLY:

By:
State Bar No.
Attorney for Petitioner

By:
xxxxxxxxxxxxxxxxxxx
State Bar No.

By:
Attorney Ad Litem for XXXXXXXXX=

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Immigrant Issues Affecting Children in Foster Care Chapter 56.2

APPENDIX E.
SAMPLE LETTER REQUESTING CONSENT FROM FEDERAL GOVERNMENT TO ENTER STATE
COURT PROCEEDINGS

February 10, 2006 Via Federal Express

No. 8512 9964 8174
Mr. John J. Pogash
National Juvenile Coordinator
U.S. Immigration and Customs Enforcement
Office of Detention and Removal Operations
801 I Street, N.W., Suite 800
Washington, D.C. 20536

Request for Consent to SIJ

&
AGE OUT EXPEDITE REQUEST

RE: Xxxx, DOB 4/15/1988, AXXXXXXXXXXXXX

(Will turn 18 years old April 15, 2006)

Dear Mr. Pogash:

Please consider this letter as Xxxx’s request to the Department of Homeland Security for specific consent to
state court jurisdiction to consider a dependency order as required for approval of a special immigrant juvenile status
visa under INA §101(a)(27)(J)(iii)(I).

Xxxx is currently in the “legal or constructive custody” of the Attorney General, and requires such consent to
pursue special immigrant juvenile (“SIJ”) status. 8 U.S.C. § 1101(a)(27)(J). Pursuant to the Immigration and
Nationality Act (“the Act”), the DHS has authority to grant such a request. See F.L. v. Tommy Thompson, 293 F.
Supp. 2d 86, 88 (Dist. D.C. 2003). Because xxxx will be eligible for SIJ status if a dependency order is issued and
the dependency proceeding would be in his best interest, such consent should be granted.

Xxxx asks that his request be expedited because he will age out under Mississippi law, where he is currently
detained, when he turns 18 years old on April 15, 2006. If consent is not given before then, he may not be able to
obtain an appropriate state court order.

Legal Background

Under 8 U.S.C. § 1101(a)(27)(J), XXXX qualifies for Special Immigrant Juvenile Status if:

1. A United States juvenile court either declares him dependent on the court or legally commits him to or places
him in the custody of an agency or department of the state, i.e. legal guardianship proceedings;

2. A United States juvenile court declares him eligible for long-term foster care do to abuse, neglect, or
abandonment;

3. An administrative or judicial body determines that it is not in his best interests to return to the country of
Haiti.

A 1997 amendment to the Act requires the Attorney General’s consent before any child in the actual or
constructive custody of the Attorney General may be subject to a juvenile court’s jurisdiction to determine custody or
placement status. 8 U.S.C. § 1101(a)(27)(J)(iii)(I). The DHS is the agency with the authority to grant such consent.
See F.L. v. Tommy Thompson, 293 F. Supp. 2d 86, 88 (Dist. D.C. 2003).

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Immigrant Issues Affecting Children in Foster Care Chapter 56.2

Procedural History

Xxxx applied for asylum and withholding before the Immigration Judge, who denied relief. The BIA also
denied relief. At the Fifth Circuit, the parties agreed that the matter should be remanded to the BIA for briefing and
an unopposed motion to that effect is currently pending and expected to be granted shortly. Bonhomme v. Gonzales,
No. 05-60482 (5th Cir. filed XXX 2005).

Statement of Facts

The Immigration Judge found that XXXX was a credible witness. CAR108 62. Xxxx credibly testified that he
was born in Haiti on XXX, 1988 and attended school there for approximately one month. CAR 58, 112, 174, 184,
435. He testified that he was separated from his family at the age of seven, and that after two years in an orphanage,
from the age of ten, he lived on the streets of Port Au Prince, Haiti. CAR 58. He does not know where his family
members are, and he has not seen either his mother or his father since he was seven years old. CAR 113, 114, 194.

Xxxx credibly testified that while he was living on the street, the police beat him regularly, as often as three
times a week. Their methods included: grabbing him from behind; whippings with electric cords; hitting him with
batons; pushing, shoving and hitting him to the ground; kicking him; and throwing sharp objects at him that resulted
in scar-inflicting wounds to his arms as he fled. CAR 59, 61, 117, 118, 124, 139, 142, 178, 184. Because of this
abuse Xxxx fled Haiti and came to the United States. CAR 174, 184, 436, 439.

The Immigration Judge explicitly found that there was a reasonable possibility that Xxxx would be tortured in
Haiti. CAR 70. Xxxx fears death at the hands of the Haitian police because if he is returned to Haiti, he will
perforce return to the streets where the attacks will continue. CAR 124-125, 178, 184, 443.

The Immigration Judge found that the human rights situation in Haiti is poor and that Haitian political and civil
officials commit serious human rights abuses there. CAR 64. The Immigration Judge found that the Haitian
government uses torture and that the most common forms were beating with sticks, fists and belts and that Xxxx’s
experiences were consistent with reports of torture techniques in Haiti. CAR 69. Government abuses include extra-
judicial killings, unnecessary deadly force and excessive force. CAR 64. The Immigration Judge found that health
and education for children was inadequate in Haiti, and that malnutrition of children was a serious problem in Haiti.
CAR 64. The Immigration Judge found that child abuse is a problem in Haiti and that there are many street children
in Port Au Prince. CAR 64. The Immigration Judge found that XXXX would not be able to relocate within Haiti to
avoid harm. CAR 70.

The Immigration Judge found that street children are at risk for “coercive intervention” because of the economic
and social crisis. CAR 65 (citing specifically to CAR 215, World Organization Against Torture for the Committee
on the Rights of the Child, Rights of the Child in Haiti, Geneva 2002).

The record contains other evidence of the dire situation of unaccompanied street children in Haiti, besides the
explicit factual findings made by the Immigration Judge.

Legal Analysis

XXXX Meets the Eligibility Requirements for SIJ Status

DHS should consent to juvenile court jurisdiction when 1) it appears that the juvenile would be eligible for SIJ
status if a dependency order were issued, and 2) the dependency proceeding would be in the best interest of the
juvenile. 8 U.S.C. § 1101(a)(27)(J).

DHS should consent to a Mississippi juvenile court exercising jurisdiction over XXXX, because he is eligible
for SIJ status, and because dependency proceedings would be in his XXXX’s interest.

Xxxx meets all of the eligibility requirements for SIJ status. He is unmarried and under twenty-one years of
age. CAR 435. Moreover, if the DHS grants consent, a juvenile court will almost certainly find that he is dependent

108
“CAR” indicates a reference to the page in the Certified Administrative Record of removal proceedings filed with the Fifth
Circuit by the Dept. of Justice.
31
Immigrant Issues Affecting Children in Foster Care Chapter 56.2

upon the court and eligible for long-term foster care. Eligibility for long-term foster care is found where family
reunification is not a viable option. See 8 C.F.R § 204.11(c).

Xxxx Qualifies as Abandoned

By the time Xxxx was seven years old he had become separated from both of his parents, his father being
arrested, and his mother and he parting ways. From that age on, Xxxx lived on the streets. Shortly after he began
living on the streets, the police took him to an orphanage where he remained for approximately two years. However,
at the age of ten, the facility could no longer care for him and he returned to living on the streets of Port Au Prince,
Haiti. He has never again seen his mother. It is clear that family reunification is no longer a viable option for Xxxx,
and that he has de facto been abandoned since age seven or at the latest age 10. See 8 C.F.R § 204.11(a).
These facts show that Xxxx qualifies as “abandoned” under Mississippi law as well since he was left without
provision for reasonable and necessary care or supervision. See Mississippi Code (Annotated) § 93-27-102.

Dependency Proceedings are in Xxxx’s Best Interest

Dependency proceedings are in Xxxx’s best interest because it would be extremely dangerous for him to return
to Haiti, his home country. If he returns to Haiti, XXXX will likely face further attacks at the hands of the police that
forced him to flee, (the Immigration Judge specifically found that the police attacked both adults and children who
lived on the streets at CAR 66). Furthermore, because of the violent and dangerous political climate, XXXX has
been separated from his family for the past ten years and has no home to return to in Haiti.

Consent to Juvenile Court Jurisdiction Should be Granted

Because Xxxx is eligible for SIJ status and his best interest would be served by dependency proceedings, he
prays that DHS grant its specific consent to Mississippi juvenile court jurisdiction over Xxxx. Because Xxxx will
turn eighteen on April 15, 2006, he respectfully requests that you expedite and consider this request as soon as
possible.

Yours Sincerely,

Joseph A. Vail, Attorney at Law

Attorney for XXXX, G-28 on file

INDEX
OIL Motion to Remand to BIA;
Certified Administrative Record, 1-534.

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Immigrant Issues Affecting Children in Foster Care Chapter 56.2

APPENDIX F.
COPY OF SPECIAL IMMIGRANT JUVENILE STATUTORY AUTHORITY

Definition of Special Immigrant Juvenile

INA § 101(a)(27)(J); 8 USCA § 1101(a)27)(J)

an immigrant who is present in the United States--

(i) who has been declared dependent on a juvenile court located in the United States or whom such a court has
legally committed to, or placed under the custody of, an agency or department of a State and who has been deemed
eligible by that court for long-term foster care due to abuse, neglect, or abandonment;
(ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien's
best interest to be returned to the alien's or parent's previous country of nationality or country of last habitual
residence; and
(iii) in whose case the Attorney General expressly consents to the dependency order serving as a precondition to
the grant of special immigrant juvenile status; except that--
(I) no juvenile court has jurisdiction to determine the custody status or placement of an alien in the actual or
constructive custody of the Attorney General unless the Attorney General specifically consents to such jurisdiction;
and
(II) no natural parent or prior adoptive parent of any alien provided special immigrant status under this
subparagraph shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act.

Adjustment of Status for Special Immigrant Juvenile

INA § 245(h); 8 USC § 1255(h)

(h) In applying this section to a special immigrant described in section 101(a)(27)(J) [8 USC § 1101(a)(27)(J)]--
(1) such an immigrant shall be deemed, for purposes of subsection (a), to have been paroled into the United
States; and
(2) in determining the alien's admissibility as an immigrant--
(A) paragraphs (4), (5)(A), and (7)(A) of section 212(a) [8 USC § 1182(a)(4), (5)(A), and (7)(A)] shall not apply,
and
(B) the Attorney General may waive other paragraphs of section 212(a) [8 USC § 1182(a)] (other than
paragraphs (2)(A), (2)(B), (2)(C) (except for so much of such paragraph as related to a single offense of simple
possession of 30 grams or less of marijuana), (3)(A), (3)(B), (3)(C), and (3)(E)) in the case of individual aliens for
humanitarian purposes, family unity, or when it is otherwise in the public interest.
The relationship between an alien and the alien's natural parents or prior adoptive parents shall not be considered
a factor in making a waiver under paragraph (2)(B). Nothing in this subsection or section 101(a)(27)(J) [8 USC §
1101(a)(27)(J)] shall be construed as authorizing an alien to apply for admission or be admitted to the United States
in order to obtain special immigrant status described in such section.

[*Under subsection (a) referenced above]

(a) The status of an alien who was inspected and admitted or paroled into the United States or the status of any other
alien having an approved petition for classification under subparagraph (A)(iii), (A)(iv), (B)(ii), or (B)(iii) of section
204(a)(1) or may be adjusted by the Attorney General, in his discretion and under such regulations as he may
prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such
adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent
residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.

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Immigrant Issues Affecting Children in Foster Care Chapter 56.2

APPENDIX G.
COPY OF SPECIAL IMMIGRANT JUVENILE REGULATORY AUTHORITY

8 C.F.R. § 204.11

(a) Definitions.

Eligible for long-term foster care means that a determination has been made by the juvenile court that family
reunification is no longer a viable option. A child who is eligible for long-term foster care will normally be expected
to remain in foster care until reaching the age of majority, unless the child is adopted or placed in a guardianship
situation. For the purposes of establishing and maintaining eligibility for classification as a special immigrant
juvenile, a child who has been adopted or placed in guardianship situation after having been found dependent upon a
juvenile court in the United States will continue to be considered to be eligible for long-term foster care.

Juvenile court means a court located in the United States having jurisdiction under State law to make judicial
determinations about the custody and care of juveniles.

(b) Petition for special immigrant juvenile. An alien may not be classified as a special immigrant juvenile unless the
alien is the beneficiary of an approved petition to classify an alien as a special immigrant under section 101(a)(27) of
the Act. The petition must be filed on Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant.

(1) Who may file. The alien, or any person acting on the alien's behalf, may file the petition for special immigrant
juvenile status. The person filing the petition is not required to be a citizen or lawful permanent resident of the United
States.

(2) Where to file. The petition must be filed at the district office of the Immigration and Naturalization Service
having jurisdiction over the alien's place of residence in the United States.

(c) Eligibility. An alien is eligible for classification as a special immigrant under section 101(a)(27)(J) of the Act if
the alien:

(1) Is under twenty-one years of age;

(2) Is unmarried;

(3) Has been declared dependent upon a juvenile court located in the United States in accordance with state law
governing such declarations of dependency, while the alien was in the United States and under the jurisdiction of the
court;

(4) Has been deemed eligible by the juvenile court for long-term foster care;

(5) Continues to be dependent upon the juvenile court and eligible for long-term foster care, such declaration,
dependency or eligibility not having been vacated, terminated, or otherwise ended; and

(6) Has been the subject of judicial proceedings or administrative proceedings authorized or recognized by the
juvenile court in which it has been determined that it would not be in the alien's best interest to be returned to the
country of nationality or last habitual residence of the beneficiary or his or her parent or parents; or

(7) On November 29, 1990, met all the eligibility requirements for special immigrant juvenile status in paragraphs
(c)(1) through (c)(6) of this section, and for whom a petition for classification as a special immigrant juvenile is filed
on Form I-360 before June 1, 1994.

(d) Initial documents which must be submitted in support of the petition.

(1) Documentary evidence of the alien's age, in the form of a birth certificate, passport, official foreign identity
document issued by a foreign government, such as a Cartilla or a Cedula, or other document which in the discretion
of the director establishes the beneficiary's age; and
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Immigrant Issues Affecting Children in Foster Care Chapter 56.2

(2) One or more documents which include:

(i) A juvenile court order, issued by a court of competent jurisdiction located in the United States, showing that the
court has found the beneficiary to be dependent upon that court;

(ii) A juvenile court order, issued by a court of competent jurisdiction located in the United States, showing that the
court has found the beneficiary eligible for long-term foster care; and

(iii) Evidence of a determination made in judicial or administrative proceedings by a court or agency recognized by
the juvenile court and authorized by law to make such decisions, that it would not be in the beneficiary's best interest
to be returned to the country of nationality or last habitual residence of the beneficiary or of his or her parent or
parents.

(e) Decision. The petitioner will be notified of the director's decision, and, if the petition is denied, of the reasons for
the denial. If the petition is denied, the petitioner will also be notified of the petitioner's right to appeal the decision to
the Associate Commissioner, Examinations, in accordance with part 103 of this chapter.

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Immigrant Issues Affecting Children in Foster Care Chapter 56.2

APPENDIX H
LIST OF STATE-WIDE IMMIGRATION AGENCIES AND RESOURCES
National Referral Service

National Center for Refugee and Immigrant Children

www.refugees.org
NationalCenter@uscridc.org

The National Center is a recently formed non-profit organization with the goal of
educating pro bono counsel and linking unaccompanied children with immigration legal
assistance needs with pro-bono counsel

Austin/ San Antonio Houston

Center for Legal and Social Justice University of Houston Law Center
School of Law Clinical Legal Programs
St. Mary’s University 100 Law Center
One Camino Santa Maria Houston, Texas 77204-6060
San Antonio, Texas 78228 Phone 713 743 2094
Phone 210-431-2596 Fax 713 743 2195
Fax 210-431-5700 www.law.uh.edu
http://www.stmarytx.edu/law/
Catholic Charities of Dioceses of Greater
Immigration Clinic Houston/ Galveston
University of Texas School of Law Cabrini Center for Immigrant Legal
727 East Dean Keeton Street Assistance
Austin, Texas 78705 2900 Louisiana Street
Phone 512-494-1752 Houston, Texas 77006
http://www.utexas.edu/law/ Phone 713 536 4611
www.catholiccharities.org
Catholic Charities of San Antonio
Immigration Services
2903 W. Salinas
San Antonio, Texas 78207
Phone 210-433-3256
http://www.archdiosa.org/
Dallas El Paso
Human Rights Initiative of North Texas, Las Americas Immigrant Advocacy
Inc. Center
2501 Oak Lawn Avenue 106 E. Yandell
Dallas, Texas, 75219 El Paso, 79902
Phone 214-855-0520 Phone 915-544-5126
http://www.hrionline.org/ Fax 915-544-4041
www.las-americas.org
Catholic Charities of Dallas
5415 Maple Ave, Ste. 400
Dallas, TX 75235
(214) 634-7182

Harlingen
South Texas Pro Bono Asylum
Representation Project (ProBAR)
301 E. Madison Ave.
Harlingen, TX 78550
Tel: (956) 425-9231
Fax: (956) 425-9233

36
 Types of Relief: Special
Immigrant Juvenile Status

By Meredith Linsky and Diane Eason, ProBAR, October 2008. Includes materials prepared by Christina Wilkes, Children’s Project
Director at Ayuda, Inc. titled “Application for Special Immigrant Juvenile Status (SIJS).” Presented November 2, 2005 and available
online at: http://www.refugees.org/data/nationalcenter/docs/Christina_Wilkes.ppt
Also includes materials prepared by Edna Yang, Attorney with the Political Asylum Project of Austin presented at a TYLA/ProBAR
Children’s Project training July 14, 2006 and materials prepared by Anne Chandler and Janet M. Heppard for SBOT 32nd Annual
Advanced Family Law Course August 2006.

Overview
„ Special Immigrant Juvenile status is a
remedy under immigration law that allows
undocumented children who have been
abused, abandoned or neglected in the
U.S. or their home country to apply for
lawful p
permanent resident status.
„ INA §101(a)(27)(J)
„ Implicates a mixture of federal immigration
law and state family/juvenile law.

1
 History
1
1. 1990: Congress enacted SIJ provisions of the
Immigration and Nationality Act creating a
method for abused, neglected, and abandoned
immigrant children to become LPRs.
2. 1997 Congressional Limitations:
1. Only juveniles deemed eligible for long-term foster
care based on abuse, neglect, or abandonment.
2. Specific and express consent requirements added.
3. 2008: Perez-Olano v. Gonzalez, 248 F.R.D. 248
(C.D. Cal. 2008) U.S. District Court class
action limiting consent requirement.

Eligibility –
8 CFR §204.11(c)
1. Under 21 years of age and unmarried.
2. Must be declared dependent on a juvenile court
(before the age of 18)
3. Deemed eligible by the juvenile court for long-term
foster care due to abuse, neglect or abandonment.
4. Juvenile court must retain jurisdiction, i.e. child
continues to be dependent on the juvenile court and
eligible
g for long-term
g foster care until adjustment
j of
immigration status is complete.
5. Requires judicial or administrative findings not in the
best interest of the child to be returned to country of
nationality or last residence.

2
 Required Documents
8 CFR §204.11(d)
„ Evidence of the child’s
child s age
age, birth certificate
certificate,
passport, foreign identity document;
„ Juvenile court order showing court has found
child dependent on court;
„ Juvenile court order showing eligible for long-
term foster care;
„ Evidence of a determination not in child’s
best interest to be returned to country of
nationality or last habitual residence.

The Process
Eligible
g for SIJS

Detained Child Non-Detained

(1) Obtain Specific Consent*

*No longer required

(2) Juvenile Court for SIJS Order

(3) Immigration: File I-360,

I-765, and I-485

Detained Child/Removal Proceedings:

File I-485 with Immigration Judge

3
 Specific Consent:
Is it still necessary?
„ In 1997
1997, Congress amended the definition of “Special
Special
Immigrant Juvenile,” by requiring that the Secretary of
DHS (formerly the Attorney General) provide consent to
state court jurisdiction.
„ This applied to children in the actual or constructive
custody of DHS or ORR.
„ Actual Custody: ICE or ORR detention facility.
„ C
Constructive
t ti Custody:
C t d HousedH d iin special
i l ICE or ORR
sponsored foster care setting.
„ If child has been released/reunified child is not in the
custody of the AG.

Specific Consent: Found

Overbroad
„ Consent provision used as a gate-keeping mechanism to ensure children are not
applying
l i simply
i l forf the
th “immigration
“i i ti benefit.”
b fit ”

„ Requesting consent was problematic…took a long time to obtain a decision from DHS
and high denial rates

„ In Perez-Olano v. Gonzalez, 248 F.R.D. 248 (C.D. CA 2008) plaintiffs in class action
lawsuit challenge certain requirements wrt eligibility including need to request specific
consent from DHS for children in federal custody before entering into state court.
„ Litigated by Center for Human Rights and Constitutional Law in Los Angeles

„ U.S.
U S District Court in CA ordered a permanent injunction enjoining DHS from requiring
specific consent before a minor in federal custody can seek a SIJ-predicate order in state
court. (DHS recognizes proscribed authority in letter dated January 30, 2008)

„ Today consent would only be required if state court intervenes to determine custody
(move child from federal custody to state custody).

4
 “Juvenile Court”
„ Federal Law defines Juvenile Court as a court in the
United States with jurisdiction under state law to make
determinations about the custody & care of children.
„ 8 CFR §204.11(a)
„ Examples in Texas:
„ Child Welfare Court
„ Child in custody of Texas Department of Protective and Family
Services/ Child Protective Services (TDPFS/CPS)
„ County Court at Law
„ Family Court
„ Probate Court
„ Guardianship Proceedings
„ Non-detained children or children reunified with family members in
U.S.
(Varies by county)

Petitioner: Who has Standing?

„ Federal law does not specify
p y who qualifies
q as custodian for SIJ
purposes
„ Look to Texas Family Code §102.003
„ Governmental entity
„ Authorized agency
„ Licensed child placing agency
„ Person who has had actual care, control, and possession of child
for at least six months
„ Person who is a relative of child within the third degree if child’s
parents are deceased
„ Texas Probate Code §642(a)
„ Any person has the right to commence any guardianship
proceeding
„ Appears very broad – seems to provide more standing than under
Family Code.

5
 What to File?
„ Many advocates file a “Suit
Suit Affecting
Parent-Child Relationship”

„ If you file an unfamiliar petition, it may

be rejected by the clerk

„ Samples can be found at the USCRI

website at www.refugees.org

Court: SIJS ORDER

„ The “SIJS
SIJS Order
Order” from the family court
must include the findings needed for the
immigration process.
„ Must include findings re each SIJS
eligibility requirement and include specific
findings of fact to support each
each.
„ Child’s attorney should draft order to
ensure includes all necessary findings.

6
 SIJS Order:
Requires Specific Findings

„ Child declared
d l d dependent
d d t on the
th family
f il lawl Court
C t
or child has been placed under the custody of an
agency or department of the state.
„ The child is “eligible for long-term foster care due
to abuse, abandonment or neglect.”
„ It is not in the
h child’s
h ld’ best
b interest to return to
his/her country.
„ The child is unmarried and under the age of 21.

SIJS Order: Must Make Findings

re Each Eligibility Requirement

„ Order must make clear that all the above

findings were made because of “neglect
abuse or abandonment” of the child.

7
 “Long Term Foster Care”
„ Determination made by family court that
family reunification is no longer a viable
option.
„ In these cases it is usually expected for the
child to remain in long-term foster care until
age of 21 unless adopted or placed in a
guardianship situation.
„ Must be due to abuse, neglect or abandonment
and not solely for immigration purposes.

Juvenile Court: Challenges

„ Court must retain jurisdiction until the SIJS
petition and application for permanent
residency both are approved.
„ Often requires asking court to extend
jurisdiction beyond 18 years of age.
„ Advocate with have to educate the judges.
„ If child marries, no longer eligible

8
 Applying to Immigration
1. File Form I-360 - Petition for Special Immigrant
Juvenile Status - with USCIS.
USCIS
2. File Form I-485 Application to Adjust Status (and
Form I-765 Application for Employment
Authorization if desired).
1. If child not in Removal Proceedings, concurrently file I-360
and I-485.
2. If child in Removal Proceedings, once I-360 approved, file
Form II-485
485 w/ Immigration Court.
Court IJ has sole jurisdiction
to adjudicate adjustment
3. Fee for I-360 is $375 and fee for I-485 is $930 plus
$80 biometric fee.
4. File fee waiver if needed.

Adjustment of Status
„ Inadmissibility issues (INA 212);
„ Special discretionary waivers for SIJ
„ i.e. prostitution, prior deports, committed
fraud to enter US, HIV positive, etc.
„ No need for q qualifying
y g relative with status.
Can be for humanitarian reasons, family
unity, or otherwise in the public interest
„ No public charge inadmissibility ground

9
 Adjustment Issues
„ All SIJS applicants are by law deemed to be
paroled and therefore are eligible for
adjustment of status
„ INA §245(h)(1)
„ Do not need to qualify for 245(i) or pay penalty
fee
„ Non-citizens
Non citizens who qualify as SIJ are exempted
from grounds of inadmissibility relate to
unlawful presence
„ INA §237(c)

Revocation of SIJS
„ Becomes 21 before adjusts;
„ Marries;
„ No longer under juvenile jurisdiction;
„ No longer deemed eligible for long term
foster care;
„ Determination made in an administrative or
judicial hearing that it is in “best interest of
the child” to return to parent’s country of
nationality or last habitual residence

10
 Limitation to Family
Benefits
„ May not petition for natural parents as
parental rights were terminated.
„ CIS may take the position that this person
cannot petition for natural brothers and
sisters as theyy no longer
g have “common
parent,” which is how immigration law
defines siblings.

Benefits
1. Child receives lawful permanent
residence in the U.S.
2. After five years may naturalize and
receive U.S. citizenship.

11
 Resources
• National Children
Children’ss Center (U
(U.S.
S Committee for
Refugees and Immigrants)
• Manuals, sample documents for specific consent
letters, juvenile court proceedings, and packet for
immigration applications.
• http://www.refugees.org/article.aspx?id=1559&sub
m=75&area=Participate&ssm=118#tx
p
• Immigrant Legal Resource Center SIJ Manual
• http://www.ilrc.org/resources/sijs/2005%20SIJS%20
manual%20complete.pdf

Additional Resource
„ Article titled “Immigrant Issues
Affecting Children in Foster Care” by
Janet M. Heppard and Anne Chandler,
University of Houston Law Center, from
the SBOT Advanced Family Law
Training in 2006.

12
 The University of Texas School of Law

Presented:
The University of Texas School of Law’s 32nd Annual Conference on Immigration and Nationality Law
October 22-24, 2008
San Antonio, TX

Immigration Relief for Human Trafficking Victims

Erica B. Schommer

Erica B. Schommer
Texas RioGrande Legal Aid
Weslaco, TX

Eschommer@trla.org
956-447-4806

Continuing Legal Education • 512-475-6700 • www.utcle.org

I. Definition of Human Trafficking

Sex trafficking: commercial sex act induced by force, fraud or coercion, or in which the
person performing the act is under age 18. “Commercial sex” means something of value
is being exchanged, although not necessarily with the victim.

Labor trafficking: use of force, fraud or coercion to recruit, transport, harbor, obtain or
employ a person for labor or services in involuntary servitude, debt bondage, peonage or
slavery.

Trafficking occurs with the exploitation of the victim. Victims include people of any
immigration status. Since trafficking involves elements of force, fraud or coercion, it is
often very difficult to identify victims. Be sure to include a few questions in your intake
questionnaire to screen for trafficking. For example, in addition to asking if the person
has ever worked in the U.S., add a couple questions about working conditions in order to
determine whether the person felt free to leave. A sample detailed intake form for human
trafficking is included in the materials.

II. Continued Presence

Only federal law enforcement can request Continued presence (CP). If granted, the
applicant gets an I-94 and employment authorization, normally valid for one year. CP is
designed to stabilize victims and grant them temporary permission to remain in the U.S.
during an investigation. When CP is granted, Health and Human Services is notified and
the person is issued a certification letter. That letter allows the person to access the same
bundle of public benefits as those awarded to refugees. Normally, the turn around time is
about 4-12 weeks and the documents are delivered to the officer who made the CP
request.

III. T Visas

A. Requirements for T Visas

The more permanent immigration remedy for trafficking victims is the T visa, which is
available to trafficking victims who meet the following requirements:
1. Victim of severe form of human trafficking
2. Present in the U.S. on account of human trafficking
3. For victims 15 or over, victim has not refused reasonable requests to
cooperate with law enforcement;
4. Applicant will suffer extreme hardship if returned to home country; and
5. Applicant must be admissible or seek a waiver.

Victim of severe form of human trafficking

Sex trafficking and labor trafficking as defined above constitute severe forms of human
trafficking. See 8 CFR 214.11(a).

1
Present on account of human trafficking
To establish this prong it is not necessary that the victim was brought to the U.S. by the
trafficker. However, the victim has to show why it was not possible to return to his or her
home country after getting away from the traffickers. This can be difficult when years
have passed between when the person got out of the trafficking situation and when the T
visa application is filed. The victim’s affidavit should explain in detail the obstacles to
returning home, including fear of reprisals by the traffickers. See 8 CFR 214.11(g).

Cooperation with law enforcement

What is a reasonable request depends on the specifics of the case. For example, if a
victim is severely traumatized, certain requests for cooperation may not be reasonable.
Minors are technically not required to cooperate by statute, but in practice if a case only
involves minors, a prosecution may be impossible without cooperation.

Unlike U visas, certification is not necessary for a T visa, but form I-194 Supplement B
should be submitted if you can obtain one. If you do not have certification and you are
representing an adult victim, include correspondence with law enforcement that
demonstrates efforts to cooperate and make your client available if applicable. For that
reason, if you arrange interviews by phone, send an email to confirm and print out a copy
to file with the T visa application. See 8 CFR 214.11(h).

Extreme Hardship Factors

The following factors will be considered in making an assessment about extreme
hardship:
• Applicant’s age and circumstances
• Vulnerability to retaliation by traffickers
• Access to U.S. court system to seek redress for trafficking
• Ability of home country to protect victim from traffickers
• Ability to reintegrate in society due to laws/social practices of country that might
penalize victim upon return for having been a victim of trafficking
• Likelihood of re-victimization
• Access to treatment for physical or psychological health needs, especially if
related to trafficking
• Civil unrest or armed conflict in applicant’s country that are likely to affect
applicant’s safety
• Economic hardship is NOT enough

See 8 CFR 214.11(h).

The State Department puts out an annual Trafficking in Persons (TIP) report that has a
section on each country. Those reports are critical to documenting the degree to which a
victim’s home country may be able to protect him or her from the traffickers. In addition
to those reports, you should also get information from organizations working on
trafficking in the country of origin about how successful law enforcement efforts are to

2
combat trafficking. Do research about reintegration. In some societies women and girls
who were trafficked into prostitution are cast out from their communities.

Inadmissibility and Waivers

There are waivers available to waive many of the common grounds of inadmissibility for
T visa applicants. Common inadmissibility issues are:
– Entry without inspection
– Use of false documents
– Prostitution or other criminal activity related to victimization
– Health-related grounds (HIV, tuberculosis)

A waiver is requested on form I-192. The filing fee is $545 and currently cannot be
waived. Again, the fees should be taken into account when deciding when to file
applications for derivatives. If an application is submitted without the I-192, the VSC
will send a RFE requesting the waiver. Due to the high filing fees, applicants may want
to wait to file for derivatives until they have obtained employment authorization through
CP or a T visa.

B. Mechanics of Filing T Visa Application

T visas are adjudicated by the Vermont Service Center. The application is made on form
I-914. There is no cost to file the application and no fee for biometrics. Law
enforcement certifications are done on I-914 Supplement B. The applicant must submit
an I-914 Supplement A for each derivative family member.

T visa applicants can request derivative status for family members

„ If victim under 21, victim’s:
– Spouse
– Children (unmarried, under 21)
– Parents
– Siblings (unmarried, under age 18)
„ If victim over 21, victim’s:
– Spouse
– Children (unmarried, under 21)
For derivatives, USCIS takes the position that it is the age at the time the application is
filed. In addition, the family relationship has to exist at the time that the application is
filed.

For family members outside of the U.S., the Vermont Service Center sends a fingerprint
card with instructions that the derivative member needs to take to a U.S. consulate or
USCIS office abroad for processing. It can be very difficult to arrange those
appointments, transportation, and fees associated with those applications. In some cases,
it may be beneficial to wait to petition for derivatives after the principal has employment
authorization in order to be able to pay all of the fees.

3
 C. T Visa Benefits

T visas are valid for 4 years and include employment authorization. Visa holders can
obtain derivative status for family members. USCIS has not issued regulations regarding
adjustment of status. Therefore, while visa holders ought to be able to adjust status at the
end of their visa validity, that is not a reality at this time. The principal and derivative T
visa holders are entitled to access temporary public benefits.

IV. Other Immigration Remedies

U Visas
Trafficking is one of the crimes listed in the Act related to U visas. A U visa may be a
better option for people who may have problems meeting the other requirements for T
visas. For example, a person who escaped a trafficking situation years earlier may have
problems establishing presence on account of trafficking. Also, if federal law
enforcement is not aware of the case, but it has been investigated at the local level, it may
be better to try a U visa and not risk the victim being placed in removal proceedings.

Asylum
T visas are only available to people who were trafficked in the U.S. A trafficking victim
who flees to the U.S. to escape persecution by traffickers is not eligible to seek a T visa.
There is a developing area of case law on trafficking victims as a particular social group.1
Because this area of the law is evolving, you should consult with experts on this issue,
such as the Center for Gender & Refugee Studies for guidance on how to frame the social
group in your particular case.

V. Special Considerations for Cases Involving Criminal Prosecutions

Trafficking cases that involve criminal prosecutions involve many actors. Your client will
be working with law enforcement, prosecutors, and hopefully a case manager and
counselor. It is important to establish from the outset what your role is, both with your
client and with the other service providers. Survivors of trafficking are often very
traumatized so it is also essential that you make referrals for counseling if that has not
been done. If you are representing a person who is likely to testify in a criminal trial, the
T visa application is discoverable. In some cases, the AUSA may ask you not to file the
T visa until after the criminal case is completed for that precise reason. However, it is
often necessary or desirable to file sooner, especially if the victim has family members
abroad who can immigrate as derivatives.

If criminal charges are pending, do not submit a very detailed affidavit from your client.
Because the application is discoverable, your client’s affidavit could be used on cross-
examination to attack credibility if testimony is not completely consistent with the details
in the affidavit. One option is to submit the initial declaration given to law enforcement

1
For a detailed discussion of the relevant case developments, see Stephen Knight’s article in Immigration
Briefings available at
http://cgrs.uchastings.edu/documents/cgrs/advisories/Knight_%20ImmigBriefings_Trafficking_Asylum.pdf

4
as your client’s personal statement. In most cases, that will already be an exhibit in
criminal proceedings so it does not provide any additional information to the defense. If
you cannot obtain a prior written statement, or it is insufficient, submit a declaration that
is not too detailed regarding specific information that your client may not be able to recall
at a later date. If the statement is later deemed too vague by the VSC, they will request
additional evidence and you can supplement.

Include any and all documents from the criminal proceedings to support your application,
especially if you do not have a law enforcement certification. Newspaper articles are also
good sources of evidence to demonstrate the existence of criminal proceedings.

VI. Resources

The following websites have additional information that can help you prepare your cases.

Non-profit organizations:
Freedom Network USA
http://www.freedomnetworkusa.org/

Global Rights
http://www.globalrights.org/site/PageServer?pagename=wwd_index_49

HumanTrafficking.org - Clearinghouse of information with links to resources in the U.S.

and abroad.
http://www.humantrafficking.org/

Legal Aid Foundation of Los Angeles – contains links to several comprehensive resource
guides
http://www.lafla.org/clientservices/specialprojects/traffic.asp

U.S. Government Agencies:

U.S. Department of Health & Human Services:
http://www.acf.hhs.gov/trafficking/

U.S. Department of State: Office to Monitor and Combat Trafficking in Persons

http://www.state.gov/g/tip/

U.S. Department of Justice: Office for Victims of Crime

http://www.ovc.gov/help/tip.htm

U.S. Department of Justice: National Criminal Justice Reference Service

http://www.ncjrs.gov/spotlight/trafficking/summary.html

U.S. Department of Labor: International Child Labor Reports

http://www.dol.gov/ILAB/media/reports/iclp/main.htm

5
 TRLA Human Trafficking Client Intake & Assessment
Referral information
Date of referral: TRLA Staff:
Referrer’s Name/Telephone:
Referrer’s organization:

Biographic/Family information
First name: Last Name:
Languages:
Age: DOB: Nationality: Ethnicity:
Current address:__________________________________________________
Safe telephone number:________________________________________________
Are you married?____________________
Answer following for spouse and children:
Name DOB Place of birth Is s/he with you? Immigration
If not, where is s/he? status

Trafficking information
What kind of work did you do?
___ Labor – what type:
___ domestic ___ restaurant ___ garment ___ agricultural ___ other_________________
___ Commercial sex act (age when began_____)
___ Other: ____________________________________________________________________

How were you recruited?_________________________________________________________

______________________________________________________________________________
______________________________________________________________________________

Do you know the identity of your traffickers? □ yes □ no

If so, please provide name and location, including nicknames, gang, or affiliations:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________

Approx. Date of escape:

From who/where:

1
Approx. length of servitude:
Were there witnesses or other victims? □ yes □ no

Are you in contact with them? □ yes □ no

If yes, where are they?
If no, can you find them?

Agreed transportation fees: Actual fees:

Other agreed fees: Actual fees:
Agreed Travel Conditions: Actual Travel Conditions:

Agreed employment Actual employment

Agreed Salary/Payment: Actual salary/ payment:

Approx. date of entry: Method of entry:

Documents
Were any of the following taken away from you?
□ identification
□ birth certificate
□ Visa/passport
□ Citizenship documentation from your homeland
□ Child[ren]
Name and address of Person who has these items
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Travel
Did you pay someone to bring you to the US? □ yes □ no
If so, check all that apply:
□ Had to pay more money or work off debt upon arrival
□ Taken to place (city, state) not agreed to
□ Placed in job different from agreement
□ Forced to engage in sexual activity w/ transporter
□ Abused/threatened during the trip
□ Sold/traded to person/group other than person you made arrangement with

Working Conditions, check all that apply:

Date employment began:

2
Name/address of employer/company:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
□ Type of work was different from work you had been promised
□ Pay was less than pay promised
□ Money was deducted from paycheck for food, transportation or housing
□ Work everyday of the week
□ Had to work when sick
□ Hours worked per day:
□ Up to 8
□ 8-12
□ > 12 hours
□ 16 hours
□ Able to quit your job
□ Chained to the area or locked in place where you worked
□ Forced to stand for long periods of time as punishment
□ Could take breaks without asking for permission
□ Could use bathroom while working without asking permission
□ Were you allowed to eat during workday
□ Were you deprived of water
□ Punished if you did not meet a quota
□ Transported to/from work by employer
□ Housing was provided by employer
□ Lived/slept were you worked
□ Forced to participate in sexual acts

Living Conditions, check all that apply:

□ Employer/recruiter arranged for housing
□ Allowed to use bathroom without restrictions
□ Had to ask permission to eat
□ Deprived of food/water
□ Deprived of sleep
□ Deprived of medical attention
□ Free to leave the residence alone
□ Allowed to use telephone
□ Locked in residence

3
 □ Allowed to communicate w/ friends or family
□ Forced to clean/cook in home without pay
□ Sleeping arrangements:
□ Bed
□ Floor
□ Cot
□ Outside
□ Closet
□ Crowded conditions
□ No blankets

Abuse (check all that apply)

Someone in home/work threatened you or your family? □ yes □ no
Have you suffered any of following abuse:
□ Slapped
□ Punched
□ Kicked
□ Burned
□ Sexual Assault
□ Rape
□ Sexual harassment
□ Torture
□ Verbal abuse/humiliation
Did you see anyone else being abused? □ yes □ no
If yes, explain:__________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________

FOR WOMEN ONLY

Were you:
□ Forced to take contraceptives
□ Prohibited from taking contraceptives
□ Forced to terminate pregnancy
□ Denied feminine hygiene products/medications

4
Law Enforcement
Have you had any contact with law enforcement? □ yes □ no
If yes, names of agency, officers and dates if known:___________________________________
______________________________________________________________________________
______________________________________________________________________________

If not, are you willing to be interviewed by law enforcement? □ yes □ no

DETAILED QUESTIONS

1. Recruitment
Where and how were you recruited?

Did you sign a contract? □ yes □ no What were the terms of the contract?

Were you sold? □ yes □ no By whom? To whom?

2. Migration (if any)

Were you kidnapped or coerced into migrating? □ yes □ no How?

How did you travel to the U.S.?

Were you inspected by Immigration upon entry? □ yes □ no If so, what documents did you have?

Was a fee paid for your transportation? □ yes □ no By whom and to whom?

3. Identity theft
Did the employer/trafficker use the victim's identity for another purpose? □ yes □ no

4. Working conditions

5
Were you allowed to communicate and become friends with other workers? □ yes □ no

Were you given the option of quitting your job and finding another job? □ yes □ no

5. Coercion
Were you threatened with physical abuse? □ yes □ no

If so, were any weapons involved? □ yes □ no

Did they threaten to call the border patrol? □ yes □ no

Were you verbally abused, humiliated, or degraded? □ yes □ no

Did you ask if you could leave? □ yes □ no

Why?
Why not?

OTHER NOTES:

Assigned staff:
□ Smuggling □ Labor □ Exploitation □ Servile Marriage □ Trafficking □ Insufficient Info
Referred out to:

6
Immigration Remedies for
Vulnerable
Vu e b e Populations
opu o s

Overview of VAWA and T

Visas

Agenda

„ VAWA self
self-petitions
petitions
„ T visas for trafficking victims
„ Questions

1
Violence Against Women Act (VAWA)

„ Originally enacted in 1994 and

reauthorized in 2000 and 2005
„ Created in part as a response to special
vulnerabilities of immigrant domestic
violence victims
„ Similar to family
family-sponsored
sponsored application
application,
but does not require assistance of the
abuser

Who can file a VAWA self-

petition?
1
1. Abused spouses or former spouses of U U.S.
S
citizens or lawful permanent residents
(LPR);
2. Abused children (including step-children) of
a U.S. citizen or LPR;
3. Abused parents of U.S. citizen sons or
d
daughters;
ht andd
4. Non-abused spouses who are parents of a
child abused by a U.S. citizen or LPR
parent, if filing jointly with his or her child’s
petition.

2
VAWA 2005 update

„Abused children or stepchildren who

were eligible to self-petition before the
age of 21 can now file before turning 25
years old as long as the applicant
demonstrates that the abuse was at
l
least one centrall reason”” ffor the
h ddelay
l iin
filing.
See INA § 204(a)(1)(D)

What does the self-petitioner

have to show?
„ Immigration status of the abuser
„ Marriage (or parent/child relationship)
„ Abuse
„ Residence with abuser
„ Good moral character

3
Status of the abuser

„ Is or was a U.S.
U S citizen or LPR
– Copy of birth certificate, LPR card,
certification of citizenship
– Can request during discovery in civil family
law proceedings
„ Can self-petition within 2 years of LPR
abuser losing status as long as loss of
status is related to the abuse

Marriage issues

„ Self petitioner is or was married USC or

Self-petitioner
LPR abuser
„ Includes common law marriage where
recognized by law
„ Marriage must have been entered into
in “good
good faith
faith”
„ Can file up to two years after the
termination of marriage

4
Abuse issues

„ Battery – 1 incident of physical violence

is sufficient
„ Extreme Cruelty – verbal/psychological
abuse that goes beyond normal marital
problems; any other form of domestic
violence that does not involve battery
„ “Any credible evidence” standard
applies – see 8 CFR 204.2(c)(2)(i)

Residence issues
„ Lived with the abuser in the U.S.
(current or prior)
– Tax returns, school records, leases, utility
bills, civil court pleadings, etc.
„ Either lives in the U.S., was subjected to
abuse by LPR or USC spouse in the
U.S., or the abuser was an employee of
the U.S. government or armed forces
stationed abroad

5
Good Moral Character

„ Self-petitioner
Self petitioner is person of GMC for 3
years prior to filing
– Police clearance letters
– FBI/DPS fingerprint check
– Letter from church, community group, etc.
„ Waivers are available if conduct is
related to the abuse

Mechanics of filing

„ Form I-360 filed with Vermont Service Center

with supporting documents
„ If approved, self-petitioner is granted deferred
action and is eligible to apply for a work
permit – category is (c)(31)
„ Can apply for adjustment of status to become
LPR immediately if abuser was USC or renew
deferred action until priority date comes
current

6
VAWA Motions to Reopen
„ VAWA 2005 revised motions to reopen for those
eligible for VAWA cancellation of removal by
eliminating the filing deadline and numerical
limitations for a person physically present in the U.S.
who establishes prima facie eligibility
„ If filing over one year from the date of the order, you
need to show extraordinary circumstance”or extreme
hardship to the self
self-petitioners
petitioners children
„ Filing a VAWA MTR automatically stays an order of
removal until the motion and any appeals are
adjudicated
See INA 240(c)(7)(c)(iv)

T Visas for Victims of

Human Trafficking
„ Sex Trafficking:g Commercial sex act induced byy
force, fraud or coercion, or in which person
performing the act is under age 18.

„ Labor Trafficking: Using force, fraud or coercion to

recruit, harbor, transport, obtain or employ a person
for labor or services in involuntary servitude,
peonage, debt bondage or slavery.

The physical movement of the victim is not required.

The TVPA protects both U.S. citizens and non-citizens.

7
How are victims trafficked?
Force, fraud and coercion are methods used by
traffickers to induce victims into lives of
servitude, abuse
„ Force: Rape, beatings, confinement
„ Fraud: Includes false and deceptive offers of
legitimate employment, marriage, better life
„ Coercion: Threats of serious harm to, or physical
restraint of, any person; any scheme, plan or pattern
intended to cause victims to believe that failure to
perform an act would result in restraint against them;
or the abuse or threatened abuse of the legal
process.

Trafficking v. Smuggling
TRAFFICKING SMUGGLING
„ Must contain element of force „ Person generally consents to be
fraud or coercion (unless victim smuggled
under 18 and engaged in
commercial sex acts
„ Forced labor and/or exploitation „ No actual or implied coercion
„ Trafficking victims are not
violating the law „ Persons are free to leave,
„ Need not involve actual change jobs, etc.
movement of the victim
„ No requirement of crossing an
„ Must involve crossing an
international border
international border
„ Victim must be involved in
labor/services or commercial
sex acts, i.e. must be “working”

8
 Trafficking Victims Protection
Act (TVPA)
„ Signed into law October 2000
„ Prior to 2000, no comprehensive law to
protect victims of trafficking or to prosecute
traffickers
„ Made human trafficking federal crime
„ Goals of law:
– Prevent human trafficking overseas
– Increase prosecution of human traffickers in United States
– Protect victims, provide Federal and state assistance to
victims

Immigration remedies for

trafficking victims
„ Continued Presence
„ T visas
„ U visas

9
Continued Presence

„ Temporary permission to remain in the U U.S.

S
„ Parole/deferred action and employment
authorization
„ Must be requested by federal law
enforcement agency
„ D i
Designed d to
t keep
k potential
t ti l victim
i ti iin U
U.S.
S
during investigation
„ Access to public benefits

Requirements for T visa

1. Victim of severe form of trafficking
2
2. Present in U.S.
U S on account of trafficking
3. If 15 or older victim must not have refused
to comply with reasonable requests to
assisting with the investigation and/or
prosecution of the crime (note that
prosecution is not a requirement)
4. A li
Applicant t would
ld suffer
ff extreme
t h
hardship
d hi if
returned to home country
5. Applicant must be admissible or seek a
waiver

10
 Cooperation with authorities
„ If victim is severely traumatized
traumatized, requests for
cooperation may not be reasonable
„ A law enforcement certification is helpful, but
it is not a requirement
„ Minors are not required to cooperate by
statute, but in practice it may be difficult to get
relief
li f without
ith t cooperating
ti
„ Save emails/letters to law enforcement to
documents efforts to assist authorities

Extreme Hardship Factors

– Applicant’s
Applicant s age and circumstances
– Vulnerability to retaliation by traffickers
– Access to U.S. court system to seek redress for
trafficking
– Ability of home country to protect victim from
traffickers
– Ability to reintegrate in society due to laws/social
practices of country that might penalize victim
upon return for having been a victim of trafficking

11
Extreme Hardship Factors, cont.

– Likelihood of re-victimization
– Access to treatment for physical or
psychological health needs, especially if
related to trafficking
– Civil unrest or armed conflict in applicant’s
country that are likely to affect applicant’s
applicant s
safety
– Economic hardship is NOT enough

T Visa Benefits

„ Nonimmigrant status for 4 years,

years including
employment authorization
„ Possible to obtain status for derivative family
members
„ Can seek LPR status after 4 years (although
regulations still have not been issued)
„ Access to public benefits for temporary period
of time

12
Special Considerations for T visas

„ If there is a criminal prosecution going

on, you should coordinate with law
enforcement
– Sometimes they may ask you not to file
and/or will not certify until criminal case is
resolved
„ The entire application is discoverable
and anything you submit can be used to
cross-examine your client

Who qualifies as a derivative for

T Visas?
„ If victim under 21
21, victim
victim’s:
s:
– Spouse
– Children (unmarried, under 21)
– Parents
– Siblings (unmarried, under age 18)
„ If victim
ictim o
over
er 21
21, victim’s:
ictim’s
– Spouse
– Children (unmarried, under 21)

13
 Admissibility Issues

„ T visa applicants often need to file an I-192 to

waive grounds of inadmissibility
„ Common inadmissibility issues (INA 212(a)):
– Entry without inspection
– Use of false documents
– Prostitution or other criminal activity related to
victimization
– Health-related grounds (HIV, tuberculosis)
„ Waivers are widely available for T visas

Other Immigration Remedies

Asylum –There is a developing area of case

law on trafficking victims as a particular social
group. In addition, in some circumstances
domestic violence can be severe enough to
be considered persecution based on gender.
– One yyear filing
g deadline to overcome
– Documentation/corroboration difficulties
– Law is unsettled

14
 Resources

„ Asista: http://www.asistaonline.org/
http://www asistaonline org/
„ National Immigration Project:
http://www.nationalimmigrationproject.or
g/
„ Immigrant
g a Legal
ega Resource
esou ce Center:
Ce e
http://www.ilrc.org/

Questions

For more information contact:

Erica Schommer
Texas RioGrande Legal Aid, Inc.
300 S. Texas Blvd
Weslaco TX 78596
Weslaco,
(956) 447-4806
Eschommer@trla.org

15
 The University of Texas School of Law

Presented:
2008 Conference on Immigration and Nationality Law

October 22-24, 2008

San Antonio, Texas

U Visas: Victims of Criminal Activity

Vanna Slaughter LCSW

Catholic Charities of Dallas Inc.
Immigraiton and Legal Services
Dallas, Texas 75235
vanna@ccicsdallas.org
(214)634-7182 Ext 228

Continuing Legal Education • 512-475-6700 • www.utcle.org

 U-visas: Victims of Criminal Activity

This training material was supported by Grant No. 2000-WL-VX-K004 awarded by the
Violence Against Women Office, Office of Justice Programs, U.S. Department of Justice.
Points of view in this document are those of the author and do not necessarily represent the
official position or policies of the U.S. Department of Justice.

OVW Approved May, 2005

1
 U-visas: Victims of Criminal Activity
Introduction

Some immigrant victims of sexual assault and other crimes may not qualify for VAWA self-
petitioning relief for several reasons. The VAWA self-petition requires the abusive party to be the
spouse, parent or the adult son or daughter of the victim. Many sexual assault assailants are
strangers to their victim. Many more are acquainted but may not be married. A VAWA self-
petitioner’s abuser must also be a U.S. Citizen or a Lawful Permanent Resident and many sexual
assault assailants, even if married to the victim, may not be a Lawful Permanent Resident
(commonly referred to as a greencard holder) or U.S. Citizen. Immigrant victims who do not
qualify for relief under VAWA may still qualify for other types of immigration relief such as a U-visa,
a visa created to provide immigration status to crime victims. This chapter contains an overview U-
visa and lists the requirements for eligibility. A battered immigrant who possibly qualifies for either
a U-visa or other VAWA immigration relief should be referred to an immigration attorney or
advocate with knowledge and experience with these types of cases to assess eligibility.

The Violence Against Women Act of 2000

1
The Violence Against Women Act of 2000 (VAWA 2000) created the U-visa for immigrant victims
of criminal activity. This visa offers temporary lawful status to victims of certain criminal activity if
the victim has suffered substantial physical or mental abuse as a result of the crime.2 The victim
must have information about the crime and a law enforcement official (e.g. police, prosecutor) or a
judge must certify that the victim has been helpful, is being helpful, or is likely to be helpful in
investigating or prosecuting the crime.3 The purpose of this legislation was to:

create a new nonimmigrant visa classification that will strengthen the ability of law
enforcement agencies to detect, investigate and prosecute cases of domestic violence,
sexual assault, trafficking and other crimes … committed against aliens, while offering
protection to victims of such offenses in keeping with the humanitarian interests of the
United States.4

This form of relief gives the applicant temporary legal immigration status and the possibility of lawful
permanent residence. The maximum number of U-visas for available in any one year is 10,000 for
the primary applicants. Spouses and children of U-visas applicants, as well as parents of
applicants who are under 16, may also qualify for a U-visa under certain circumstances. There is no
limit on the number of visas available for these qualifying relatives.5

U-visa Interim Relief

The U-visa regulations were published on September 17, 2007 and went into effect October 17,
2007. For nearly seven years preceding the publication of these regulations, eligible immigrant
victims had no means to apply for U-visas. However, the Department of Homeland Security
created a temporary application process for such eligible immigrants.6 A memorandum on interim

1
Violence Against Women Act of 2000 (hereinafter "VAWA 2000"), enacted as div. B of the Victims of Trafficking and
Violence Protection Act of 2000, Pub.L. No. 106-386, §§ 1501–1513, 114 Stat. 1464 (hereinafter VAWA 2000).
2
INA § 101(a)(15)(U)(i); 8 U.S.C. § 1101(a)(15)(U)(i).
3
INA § 101(a)(15)(U)(i); 8 U.S.C. § 1101(a)(15)(U)(i).
4 th
The Violence Against Women Act of 2000 Section by Section Summary, Vol 146, No. 126, Congressional Record, 106
Congress Second Session, Wednesday October 11, 2000, S10196.
5
INA § 214(o)(3); 8 U.S.C. § 1214(o)(3).
6
See generally Memorandum from Michael D. Cronin, Acting Executive Associate Commissioner, Office of Programs, INS,
to Michael A. Pearson, Executive Associate Commissioner, Office of Field Operations, INS (Aug. 30, 2001) (on file with
Legal Momentum and the National Immigration Project of the National Lawyer’s Guild) (hereinafter Interim Guidance).

2
relief instructed DHS7 to grant work authorization and protection from being removed from the U.S.
(deferred action).8 As a result, many advocates are familiar with the U-visa as interim relief but
unaware of the new application process for the U-visa. It is critical that advocates understand the
difference and not rely on materials about U-visa interim relief anymore. According to the
regulations, DHS was to adjudicate the last interim relief applications on October 17, 2007, thirty
days after the new U-visa regulations were published.9

The purpose of this chapter is to assist advocates in identifying sexual assault, domestic violence,
and other crime victims who may be eligible for U-visa status and to direct them to resources that
can help them prepare their cases. If a potential U-visa applicant is identified, she should be
referred promptly to an immigration attorney or advocate who has experience in these types
of cases. The suggested evidentiary documents in this chapter are meant to be guidelines and not
an exhaustive description of the types of evidence that may be offered to support an application for
a U-visa.

BENEFITS OF THE U-VISA

The U-visa is a four year non-immigrant visa, which means that it is a visa of a limited duration not
intended as permanent status to remain in the U.S. However, Congress also created a provision
10
allowing certain U-visa holders to apply for Lawful Permanent Resident Status (LPR or green card
folder) allowing an immigrant to remain permanently in the United States. This visa creates an
opportunity for immigrant crime victims who may not have any other immigration relief to remain
permanently in the United States.

The U-visa has some critical benefits including allowing those approved to lawfully accept
employment in the United States.11 U-visa holders are automatically granted an employment
authorization document that allows them to accept employment. This ensures immigrant victims
the ability to provide for themselves and safely remain in the United States after being victimized.

U-visa applicants may also include their family members in their application and help them obtain
U-visa status. It allows families to remain together in the United States rather than be separated as
crime victims participate in a criminal investigation process. U-visa applicants may also obtain U-
visas for family members abroad. Beyond family reunification, this may be extremely useful for
women whose family members will assist her in child care and support so that she can
economically empower herself and her family. It may also be an urgent safety precaution as many
immigrant crime victims face threats to their family members in their home country if they cooperate
with law enforcement officials in the United States.

WHO IS ELIGIBLE TO APPLY FOR THE NONIMMIGRANT U-VISA?

In order to be eligible for U-visa status, the immigrant victim must:

1. Have suffered substantial physical or mental abuse as a result of having been a victim of
12
the one or more of the criminal activities listed under INA § 101(a)(15)(U)(iii);

7
These adjudications occur at the VAWA unit of the US Citizenship and Immigration Services, Vermont Service Center.
CiteYates, William R., ”Centralization of Interim Relief for U Nonimmigrant Status Applicants” Department of Homeland
Security, October 8, 2003.
8
Forms of temporary status include deferred action, parole and stays of removal.
9
U.S. Department of Homeland Security, New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant
status, DHS Docket Number UCIS-2006-0069, page 10.
10
In order to be eligible for lawful permanent residence, a U-visa holder must prove that she has been physically present for
three years and that her presence is justified “on humanitarian grounds, to ensure family unity, or is in the public interest.”
INA § 245(m); 8 U.S.C. § 1255(m).
11
8 C.F.R. § 214.14(c)(7).
12
INA § 101(a)(15)(U)(i)(I); 8 U.S.C. § 1101(a)(15)(U)(i)(I).

3
 2. Possess information concerning the criminal activity;13

3. Obtain a certification from a law enforcement official, prosecutor, judge, Immigration official,
or other federal or state authority that he or she is being, has been, or is likely to be helpful
to a federal, state, or local investigation or prosecution of a form of listed criminal activity;

4. The criminal activity violated the laws of or occurred in the United States.14

Substantial Physical or Mental Abuse

In order to be eligible for U-visa status, an applicant must have suffered substantial physical or
mental abuse as a result of being a victim of the criminal activity.15 In determining whether the
abuse is substantial, DHS will consider:
• The nature of the injury;
• Severity of the perpetrator’s conduct;
• The severity of the harm suffered;
• The duration of the infliction of harm;
• Permanent or serious harm to appearance;
• And health, physical, and mental soundness.16

DHS will take into account any of all of these factors but no one factor is required.17 DHS has
discretion to include pre-existing conditions as well to consider the severity of the perpetrator’s
conduct even if the actual impact may have been less than intended by the perpetrator. Advocates
and case workers can play a critical role in assisting victims to collect documentation to support this
requirement.

Victim of an enumerated criminal activity

Congress created an extensive list of criminal activities that qualify under the U-visa.

Crimes Covered:

Rape Kidnapping
Torture Abduction
Trafficking Unlawful criminal restraint
Incest False imprisonment
Domestic violence Blackmail
Sexual assault Extortion
Abusive sexual contact Manslaughter
Prostitution Murder
Sexual exploitation Felonious assault
Female genital mutilation Witness tampering
Being held hostage Obstruction of justice
Peonage Perjury
Involuntary servitude Slave trade

This enumerated list provides federal, state, and local officials with guidelines on the types of
federal, state, or local crimes for which victims should be provided certifications. These crimes are
broadly described in order to capture the diversity of state and federal criminal violations. As such,
13
INA § 101(a)(15)(U)(i)(II); 8 U.S.C. § 1101(a)(15)(U)(i)(II).
14
NA § 101(a)(15)(U)(i)(IV); 8 U.S.C. § 1101(a)(15)(U)(i)(IV).
15
INA § 101(a)(15)(U)(i)(I); 8 U.S.C. § 1101(a)(15)(U)(i)(I).
16
8 C.F.R. § 214.14(b)(1).
17
8 C.F.R. § 214.14(b)(1).

4
this list is not an exclusive list and CIS will consider substantially similar criminal activity to fall
within the activity covered.18

The regulations incorporate a broad framework for how a victim can satisfy the requirement that
she be a victim of an enumerated criminal activity. The applicant may be a direct victim or an
indirect victim of the criminal activity. Direct victims include those who are proximately harmed by
the criminal activity.19 This means that a bystander of a criminal activity who is harmed in the
process is also eligible as a direct victim of the criminal activity.20

Indirect victims may also apply for U-visa in specific circumstances. If the criminal activity renders
the primary victim deceased (e.g. murder, manslaughter) or incompetent or incapacitated, the
Spouse, Children under 21 years of age, and if the direct victim is under age 21, the parents and
siblings under age 18 qualify as victims.21

Indirect victims are eligible to file their own applications for a U-visa when the crime is murder or
manslaughter or when the primary victim is under age 16, incapacitated, or incompetent.22 This
provision will allow eligible indirect victims to apply even when the primary victim is or was a U.S.
Citizen or Lawful Permanent Resident (LPR or green card holder) and not in need of her own U-
visa.

Victims must also show that they are not also culpable of the same criminal activity.23 Some U-visa
victim applicants may have previous criminal convictions unrelated to the U-visa qualifying criminal
activity.24 In such cases, the applicant will not be disqualified from applying but may be
inadmissible, or not allowed to be admitted into the United States. If an applicant is inadmissible,
she may qualify for a waiver of inadmissibility. That waiver may be granted with or without a formal
request. Attorneys should file U-visa applications without the waiver of inadmissibility and wait for
DHS to request the waiver. This will allow applicants to avoid additional filing fees when not
required.

Possess Information

The U-visa was enacted to encourage victims of criminal activity to feel safe in reporting crimes
against them without adverse immigration consequences. U-visa applicants must prove that they
25
possess information about the criminal activity. Their knowledge of the criminal activity against
them is a critical component of the U-visa application. Applicants who were under 16 when the
criminal activity occurred or lack the capacity or competence do not have to prove that they
possess information if a parent, guardian, or next friend possesses that information.26 The next
friend is a person who acts in a legal proceeding on behalf of an individual who is incompetent or
incapacitated.27

Obtain certification

18
8 C.F.R. § 214.14(a)(9).
19
8 C.F.R. § 214.14(a)(14).
20
U.S. Department of Homeland Security, New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant
status, DHS Docket Number UCIS-2006-0069, page 12.
21
8 C.F.R. § 214.14(a)(14)(i).
22
8 C.F.R. § 214.14(a)(14)(i).
23
8 C.F.R. § 214.14(a)(14)(iii).
24
8 C.F.R. § 214.14(a)(14)(iii).
25
INA § 101(a)(15)(U)(i)(II); 8 U.S.C. § 1101(a)(15)(U)(i)(II).
26
8 C.F.R. § 214.14(b)(2).
27
8 C.F.R. § 214.14(a)(7).

5
DHS requires all applicants to provide certification from a state, local, or federal agency (Form I-918
Supplement B) in order to grant U-visa status.28 The form requires the law enforcement official,
judge, or other authorized state, local, or federal employee to certify that the applicant has been, is
being, or is likely to be helpful and that the applicant is a victim of a qualifying criminal activity. The
certification form also requires the government signatory to demonstrate their authority as a
supervisory or designated agent to sign on behalf of their department and that their agency is
eligible to certify.29

The requirement that an applicant “has been helpful, is being helpful or is likely to be helpful”30
includes past, present, and future helpfulness. Congress adopted this approach to ensure that
certifications were not limited to cases in which prosecutions were underway. Prosecution could not
occur if victims were not given protection from deportation and intimidation by crime perpetrators
that kept victims from reporting crimes and participating with investigations of criminal activity
whether or not the case was ultimately prosecuted or a conviction obtained. For this reason, victims
were granted access to U-visa protection very early after reporting crimes. The U-visa is available
to an individual crime victim who is “helpful, was helpful, or will be helpful” in the investigation or in
the prosecution of criminal activity. Whether or not cases move forward in the criminal justice
system is complex. A key congressional goal is to encourage victims to come forward and report
crimes and to secure their assistance in criminal investigations, not only prosecutions. For this
reason, U-visas are available to victims regardless of whether he or she serves as a witness,
whether the investigation or prosecution results in a conviction, when there is an investigation of
criminal activity that has not yet or does not result in a prosecution, when the criminal case is
dismissed, and when the case is initiated and the perpetrator evades services.

In assessing how helpful one has to be, advocates should understand some critical clarifications.

► The criminal activity does not have to be prosecuted.

► If prosecuted, there is no requirement that the prosecuted criminal activity is a
qualifying criminal activity enumerated for U visa applicants
► The perpetrator need not be convicted of any criminal activity.

Though it is not required that the case be prosecuted, the applicant must continue to cooperate
31
through the duration of the U-visa status. If the case is prosecuted and the victim is perceived not
to be helpful, the law enforcement agent may contact DHS with this information and the U-visa may
be revoked. It is critical for victims who are reporting criminal activity to understand that although
they can obtain U-visa status based on reporting criminal activity, their helpfulness does not end
with the initial report of the criminal activity.

Though the certification is mandatory in U-visa applications, many different agencies qualify as
certifying agencies eligible to sign the certification form. The eligible agencies and individuals
include32:

► Federal, state, and local law enforcement agencies (e.g. police, sheriffs, Assistant U.S.
attorneys, federal marshals)
► Federal, state, and local prosecutors
► Federal, state, and local judges
► Child Protective Services
► Equal Employment Opportunity Commission
► Department of Labor

28
8 C.F.R. 214.14(c)(2)(i).
29
8 C.F.R. 214.14(c)(2)(i).
30
INA § 101(a)(15)(U)(i)(III); 8 U.S.C. § 1101(a)(15)(U)(i)(III).
31
8 C.F.R. 214.14(b)(3).
32
8 C.F.R. 214.14(a)(2).

6
 ► Other Federal, state, and local Investigative Agencies

The certification must be signed by a supervisor or a person designated by the supervisor.33 There
are very few jurisdictions that had any established protocol at the time the U-visa regulations were
issued. As a result, the initial applicants may encounter law enforcement or other government
agencies that lack the understanding or protocols to respond to certification requests. It will be
critical for advocates to work with law enforcement, prosecutors, and other government agencies
(e.g. EEOC, labor or child abuse investigators) to understand the role of the certification and help
them to establish procedures and protocols that encourage signing of certifications.

Violated the laws of or occurred in the United States

The final requirement is that the criminal activity either violated the laws of the United States or
34
occurred in the United States. DHS has defined the United States broadly to include all of the
following:

► Indian land including any Indian reservation within United States jurisdiction, dependant
Indian communities, and Indian allotments35
► Military installations including transportation (vessels, aircrafts) under Department of
Defense jurisdiction or military control or lease36
► United States territories including American Samoa, Swain Islands, Bajo Nuevo (the
Petrel Islands), Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman
Reef, Midway Atoll, Navassa Island, Northern Mariana Islands, Palmyra atoll, Seranilla
Bank, and Wake Atoll.37
► U.S. territories include Guam, Puerto Rico, and the U.S. Virgin Islands38

Criminal activity violating the laws of the United States occurring outside the United States include
any criminal activities described in federal statutes that extend extraterritorial jurisdiction.39 Any
activity that would violate the laws of the United States but that takes place abroad would not
satisfy this requirement.

U VISAS FOR CERTAIN FAMILY MEMBERS OF THE CRIME VICTIM

U-visas are also available for family members of the direct or indirect victims of the criminal
activities. A U-visa victim applicant can include or later add to the U visa application, petitions for
her family members. For those over age 21, family members include the spouse or children.40 For
victims under age 21, family members include the spouse, children, parents, and unmarried siblings
under age 18.41

Spouses and children of U-visa applicants as well as parents of U-visa applicants who are under
the age of 16 can also receive U-visas if:
• they can demonstrate that receipt of the visa is necessary to avoid extreme hardship; or
• a government official certifies that the investigation or prosecution would suffer without the
assistance of the spouse, child, or parent.

33
8 C.F.R. 214.14(a)(3).
34
INA § 101(a)(15)(U)(i)(IV); 8 U.S.C. § 1101(a)(15)(U)(i)(IV).
35
8 C.F.R. 214.14(a)(4).
36
8 C.F.R. 214.14(a)(6).
37
8 C.F.R. 214.14(a)(11).
38
INA § 101(a)(38); 8 U.S.C. § 1101(a)(38).
39
8 C.F.R. 214.14(b)(4).
40
INA § 101(a)(15)(U)(ii); 8 U.S.C. § 1101(a)(15)(U)(ii).
41
INA § 101(a)(15)(U)(ii); 8 U.S.C. § 1101(a)(15)(U)(ii).

7
There is no cap on the number of U-visas that can be issued to the spouses, children or parents of
U-visa recipients.42 A sibling’s age is determined as of the date when the sibling’s U-visa
application is filed.43 Family members who received interim relief and are no longer meet the age
criteria, are still eligible under the U-visa statute and should apply based on those requirements.44
Family members who are perpetrators of the crime are not eligible. Family members also include
children who are born after the application is approved as long as an additional application is filed
on their behalf.45

Interim Relief Holders

Many victims who filed for and were eligible for U-visas were granted interim relief prior to the
release of U-visa regulations. Those with interim relief will need to supplement their U-interim relief
application by filing the U-visa application form and any additional evidence they may have by April
14, 2008.46 DHS has the discretion to reevaluate the status of any interim relief holders if they do
not apply for a U-visa by this deadline.47 Interim relief holders are not required to provide a new
certification. The certification filed along with the victim’s interim relief request is deemed to meet
the certification requirement under the U-visa regulations.48 Previously submitted certifications from
interim relief applications will qualify for those who file by April 14, 2008.49 For the purposes of
applying for Lawful Permanent Resident status (green card), an interim relief holder’s U-visa status
once approved will be retroactive to the grant of interim relief.50 Once regulations governing access
to lawful permanent residency for U-visa holders are issued, victims with U interim relief or a U-visa
for over three years will be immediately eligible to apply for permanent residence.

Removal Proceedings

Many potential U-visa applicants may be or have been in immigration removal proceedings, which
take place in immigration court. They begin with a document called a Notice to Appear. This form
if in the applicant’s possession will help advocates to identify for a victim’s immigration attorney that
a potential applicant has had a case in removal proceedings. It is critical that any attorney working
with the victim know this information.

Victims who are currently still in removal proceedings or in detention may apply for a U-visa. An
51
attorney can assist an applicant in applying for a motion to terminate removal proceedings that
would end the applicant’s case in removal proceedings. Family members who are eligible to apply
for U-visas are also eligible to terminate their removal proceedings.52 Those who already have a
final removal order may file a motion to stay their removal.53 This would prevent them from being
removed from the United States while their U-visa application is pending. After the U-visa is
approved, any final order the U-visa holder has will be effectively cancelled.54 However, if a U-visa

42
INA § 214(o); 8 U.S.C. § 1214(o).
43
8 C.F.R. 214.14(f)(4).
44
INA § 101(a)(15)(U)(ii); 8 U.S.C. § 1101(a)(15)(U)(ii).
45
8 C.F.R. 214.14(f)(4)(i).
46
U.S. Department of Homeland Security, New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant
status, DHS Docket Number UCIS-2006-0069, page 12.
47
U.S. Department of Homeland Security, New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant
status, DHS Docket Number UCIS-2006-0069, page 12.
48
8 C.F.R. 214.14(c)(1).
49
U.S. Department of Homeland Security, New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant
status, DHS Docket Number UCIS-2006-0069, page 10.
50
8 C.F.R. 214.14(c)(6); 8 C.F.R. 214.14(f)(6)(i).
51
8 C.F.R. 214.14(c)(1)(i); 8 C.F.R. 214.14(f)(2)(i).
52
8 C.F.R. 214.14(c)(1)(i); 8 C.F.R. 214.14(f)(2)(i).
53
8 C.F.R. 214.14(c)(1)(ii); 8 C.F.R. 214.14(f)(2)(ii).
54
8 C.F.R. 214.14(c)(5)(i); 8 C.F.R. 214.14(f)(6).

8
is denied, the applicant may be reissued a Notice to Appear and once again placed in removal
proceedings.55

CONFIDENTIALITY AND CREDIBLE EVIDENCE STANDARD

Confidentiality: As with other types of cases under the Violence Against Women Act, DHS is
required to keep all information about U-visa applications confidential.56 They cannot release
information about the existence of a case to any person who is not authorized to access that
information for a legitimate law enforcement purpose. Furthermore, if the perpetrator of the crime
or any of his or her family members provides information to DHS about the crime victim, DHS
cannot rely solely upon that information to make an adverse decision or any other case the victim
may be involved in (e.g. removal action). Further, DHS is precluded from relying on information
provided by the abuser or his family members to initiate or take any part of an enforcement action
against the victim57 on the victim’s U-visa case.

Credible Evidence Standard: As with petitions filed under VAWA, DHS is required to consider “any
credible evidence” when deciding U-visa cases and applications for adjustment of status
58
(permanent residence) based on the U-visa provisions. DHS is prohibited from requiring one
specific type of evidence in support of the application and must accept “any credible evidence”
submitted to support each requirement. The credible evidence standard was first created by the
Violence Against Women Act for battered spouse waiver, VAWA self-petition and VAWA
cancellation of removal cases recognizing that victims of domestic violence and other violent crimes
may have difficulty obtaining certain types of evidence.59

WAIVER OF INADMISSIBILITY

There are several red flag issues that can make an applicant for any immigration application
inadmissible into the United States. It is extremely important that all victims who may qualify for a
U-visa or another form of immigration relief be screened as early as possible to identify red flags.
Any red flags could complicate their immigration case and therefore require representation by an
immigration attorney experienced in working on violence against women cases. However, the U-
visa application process allows various waivers for these inadmissibility factors. The U-visa
provisions include several waivers for inadmissibility. Waivers are not available for those who have
60
committed Nazi genocide, torture, torture, or extra judicial killings. Those who have committed
violated or dangerous crimes and security-related crimes will only be granted waivers for
extraordinary circumstances.61 For all other grounds of inadmissibility, including those who enter
the U.S. unlawful, waivers are available if it is the public or national interests for DHS to grant a
waiver to the U-visa victim.62

ADJUSTMENT OF STATUS

If a U-visa holder has been physically present in the United States for three years after being
granted U-status, he or she may apply for adjustment of status to lawful permanent residence (a
“green card”).63 The applicant must demonstrate that lawful permanent residency is justified on
humanitarian grounds, to ensure family unity, or because it is in the public interest.64 Applicants

55
8 C.F.R. § 214.14(c)(5)(ii); 8 C.F.R. § 214.14(f)(6)(iii).
56
IIRAIRA of 1996 § 384, 8 U.S.C. § 1367 (2001).
57
For full discussion, see Confidentiality chapter.
58
8 C.F.R. § 214.14(c)(4); 8 C.F.R. 214.14(f)(5).
59
See INA § 204(a)(1)(J); 8 U.S.C. § 1154(a)(1)(J).
60
INA § 212(d)(14), 8 U.S.C. § 1182(d)(14).
61
8 C.F.R. § 212.17(b)(2).
62
8 C.F.R. § 212.17(b)(1)
63
INA § 245(m)(1), 8 U.S.C. § 1255(m)(1).
64
INA § 245(m)(1), 8 U.S.C. § 1255(m)(1).

9
may be required to file for waivers of inadmissibility. Because fee waivers are not currently being
accepted, applicants may want to wait for DHS to request the submission of the inadmissibility
waiver. If inadmissibility red flags occurred after obtaining a U-visa the victim can apply for an
inadmissibility waiver under INA Section 212(d)(14). DHS also has the discretion to adjust the
status of a spouse, child, or parent65 of a U-visa holder whose status has been adjusted if it is
necessary to avoid extreme hardship.66 This applies to family members who were not originally
granted U-visa relief. If these family members are outside the United States, they may obtain an
immigrant visa abroad at a U.S Consulate.67 Applications for lawful permanent residency cannot be
filed by U-visa holders until U-visa adjustment regulations are published.

DOCUMENTARY EVIDENCE FOR U VISA APPLICATIONS

‰ “A Cover Letter: “The letter should explain how the applicant meets the requirements for
the U-Visa. The letter should be a roadmap to the exhibits filed in support of the
requirements. It should also provide necessary identification information, including
applicant’s full name and date and place of birth. If the applicant’s spouse, child, or, parent,
will also be seeking interim relief, the cover letter should state this and should list
information such as the family members’ names, dates of birth, and relationship to the
principal applicant.
‰ Signed statement from the applicant: A detailed declaration should describe the crime
victimization and how the applicant meets each U-Visa requirement
‰ The Applicant’s Personal Identification Information
‰ Form I-918 Application for U Nonimmigrant Status
‰ Form I-918 Supplement B U Nonimmigrant Status Certification
‰ Additional evidence to support the requirements
‰ Form I-918 Supplement A Petition for Qualifying Family Member of a U-1 Recipient for any
family members included (may be added later)
‰ Form I-765 Application for Work Authorization is not required for principal applicants but is
required for all family members.
‰ Form I-192 Application for Advance Permission to Enter as a Non-Immigrant if the applicant
is inadmissible
‰ Fees: There are no filing fees associated with the form I-918. However, a biometrics
(fingerprinting) fee is required but applicants may qualify for a fee waiver. In addition, the I-
765 and I-192 requiring filing fees.

The following is a list of suggested documents that may be submitted to prove each element of a U-
visa case. This list is meant to serve as a guide, and additional types of evidence may also be
submitted in support of the application. Furthermore, not all documents listed below will be
available in every case.

In addition to a signed statement and Supplement B law enforcement certification, an

application for U non-immigrant status should include evidence of the following:

Evidence of Substantial Physical and Mental Abuse as a Result of the Criminal Activity:

… Records from a health care provider documenting the diagnosis and treatment of physical
injuries or a psychological condition resulting from the criminal activity

… Affidavits from victim advocates, shelter workers, counselors, or mental health professionals,
detailing any physical and mental abuse or harm that the applicant has experienced and the
effect that the abuse has had on the applicant and the applicant’s family

65
The U-visa holder must be a “child” under immigration law (unmarried and under 21 years old) for the parent to qualify.
66
INA § 245(m)(3); 8 U.S.C. § 1255(m)(3).
67
INA § 245(m)(3); 8 U.S.C. § 1255(m)(3).

10
… Affidavit of the applicant detailing the substantial physical and mental abuse or harm suffered
as a result of the criminal activity

… Copies of any police/ incident reports on domestic violence or sexual assault or listed criminal
activity

… Copies of any protection orders/ restraining orders against the perpetrator

… Affidavits and certifications from neighbors, landlords, friends, or family who witnessed the
criminal activity or harm or injuries that resulted

… Affidavits from police officers or prosecutors describing the violence that the applicant has
experienced

… Photographs showing injuries, damage from the criminal activity (e.g. torn clothing, broken
door, etc.)

… Records of any 911 calls

Evidence that the Victim Possesses Information Concerning the Criminal Activity:

… Affidavits and certifications from police officers, prosecutors, EEOC investigators, judges, child
abuse investigators, Department of Labor investigators detailing the applicant’s knowledge of
the criminal activity

… Copies of any police reports or statements that the applicant has made to a law enforcement
agency

… Copies of claims for Victims of Crime Act (“VOCA”) assistance filed as a result of the criminal
activity

… Copies of reports filed with state child abuse investigators

… Transcripts of testimony that the applicant has given to a state, local, or federal law
enforcement agency or court

… Affidavits from witnesses that may place the applicant at the scene of the criminal activity or
attest to the applicant’s knowledge of the criminal activity

… Copies of reports made to sexual assault health professionals and law enforcement with regard
to evidence collection in rape cases.

Evidence That The Crime Victim Has Been Helpful, Is Helpful, or Is Likely to Be Helpful to a
Federal, State, or Iocal Investigation or Prosecution:

… Copies of any police reports or complaint reports made to law enforcement officials.

… Certifications and affidavits from police officers and prosecutors detailing the applicant’s
helpfulness

… Copies of any police reports or statements that the applicant has made to a law enforcement
agency

… Copies of reports filed with state child abuse investigators

11
… Transcripts of testimony that the applicant has given to a state, local, or federal law
enforcement agency or court

… Copies of reports made to law enforcement with regard to evidence collection in rape cases.

Evidence That Criminal Activity Violated the Laws of the United States or Occurred in the
United States or its Territories:

… Copies of any police reports or statements that the applicant has made to a law enforcement
agency

… Copies of claims for Victims of Crime Act (“VOCA”) assistance filed as a result of the criminal
activity

… Copies of reports filed with state child abuse investigators

… Transcripts of testimony that the applicant has given to a law enforcement agency

… Copies of any arrest warrants, police reports, or domestic violence incident report

APPLICANT PROCEDURE

All U visa applicants should be filed with Vermont Service Center.68 Applications filed by victims
outside of the United States must also be filed with the Vermont Service Center following the same
process as all other U-visa applicants. Once an application is approved, Vermont Service Center
will notify the applicant and grant employment authorization. If the applicant is abroad, Vermont
Service Center will contact the appropriate consular agency to grant the applicant entry into the
United States as a visa holder.69

When Congress created the U-visa, they also capped the number of U-visas that could be issued in
a year. DHS will only grant 10,000 principal U visas pr year. Once the cap is met, DHS will grant
deferred action, which is a temporary status with employment authorization, and place the
applicants on a waitlist for the actual U-visa. The cap does not count towards family members who
are included in an application. However, DHS will not grant U-visa status to family members before
the main victim applicant receives U-visa status. Therefore, if a family member’s principal applicant
is placed on the waitlist, the family members will too be placed on the waitlist and all cases of the
victim and each of his or her family members will be processed together.70

CONCLUSION

It is important to note that the U-visa can help several groups of victims of violence against women,
including victims of sexual assault and battered immigrants who were not covered by the original
VAWA self-petition or cancellation of removal provisions. Immigrants who are abused by a
boyfriend or another person who is not a spouse or parent or by a spouse or parent who is not a
U.S. citizens or permanent resident can obtain U-visas. The U-visa will also help non-citizen victims
of other crimes, including victims of rape or sexual assault who may not know or be related to the
perpetrator and domestic workers who are abused or held hostage in the home by their employers.

The standard for being granted a U-visa is in some ways more difficult than for self-petitioning
under VAWA. To qualify, the battered immigrant must suffer substantial physical or emotional

68
8 C.F.R. § 214.14(c)(1).
69
8 C.F.R. § 214.14(c)(1).
70
8 C.F.R. § 214.14(d)(2).

12
abuse and must cooperate with law enforcement. If an immigrant victim has never called the police
and reported the abuse and is afraid or unwilling to do so, it will not be possible to apply for a U-
visa.

No one should apply for a U-visa without the assistance of an immigration advocate or attorney
who has experience in working with immigrant victims.71 This chapter serves only as a basic
introduction and should not be relied upon to apply for U relief without first consulting an attorney.
Attorneys undertaking their first U-visa cases should consult with national experts involved who are
technical assistance providers.72 Because the U-visa is relatively new and regulations were
published in September 2007, few immigration practitioners or advocates will be familiar with U-visa
relief. Attorneys helping immigrant victims should be encouraged to consult technical assistance
providers.

72 72
The following organizations can provide information and technical assistance on U visa cases:
Immigrant Women Program, Legal Momentum -- telephone: (202) 326-0040, fax: (202) 589-0511, E mail
iwp@legalmomentum.org; Address: 1101 14th Street, N.W., Suite 300, Washington, D.C. 20005; ASISTA telephone: (515)
244-2469; Email: questions@asistaonline.org; Address: 515 28th Street, Des Moines, Iowa 50312

13
 CATHOLIC CHARITIES OF DALLAS, INC.
IMMIGRATION & LEGAL SERVICES DIVISION

On-going Safety Questionnaire

As a matter of routine practice ILS Case Managers should inquire as to the on-going safety of all VAWA, U Visa
and T Visa clients each time one of these clients comes to our office for any type of follow up assistance on their
cases. All clients in these categories should be assured that their on-going personal safety is very important to us
and that we appreciate their cooperation in answering the following confidential questions. These questions should
only be asked in the privacy of an individual office. If any safety concerns are identified from these questions a
Program Director should be alerted and, together with the Program Director, the Case Manager should prepare a
service plan appropriate to the concerns revealed by the client.

Yes No
Do you believe you (or your children) continue to be at risk for harm by your abuser/perpetrator or
anyone else within or outside of the abuser’s/perpetrator’s family?

Do you remain in contact with your abuser/perpetrator?

Do you have a personalized Safety Plan? (If “No” provide client safety plan literature and offer
assistance to prepare one.)
Is there a Protective Order against your abuser/perpetrator?

Is it safe for us to send correspondence to the address you have given us?

Are you aware of the Texas AG’s Address Confidentiality Program? (ACP) (If “No” provide
information to local advocates certified to do registration.)
Is it safe for us to call you at the telephone number you have given us?

Do you have a personal cell phone? (If “No” provide client about free cell phone resources.)

Do you feel that your own emotional condition is such that you might be a threat to yourself, your
children or anyone else?
Do you feel that you are in need of other non-legal services that we might help you to arrange?

Is there anything else concerning your safety that you would like to make us aware of?

Date: _________________________ Client Name: ___________________

Case Manager: _________________ Case No: ______________________

Procedure to follow after doing questionnaire:

____ Enter a thorough casenote in Law Logix
____ Consult with a Program Director if client reveals safety concerns
____ File original questionnaire on the left side of client case folder on top of most recent questionnaire
____ Attach a pink colored tab on most recent questionnaire
____ Give yellow carbon copy to Victims’ Program Director

Attachment 1
 S:\Common Forms\#15 Fee Waiver Request Form 1-08.doc

Fee Waiver Request & Declaration

Principal Applicant
Requesting Fee Waiver : __________________________________
Alien Number: ___________________________________________
Application Form No. ______________________________________

I am unable to pay the fee(s) for the application(s) listed below which pertain(s) to me and/or my
dependents. In accordance with 8 C.F.R. § 103.7(c), I am requesting a fee waiver.

Applicant’s Name Relationship to Me Application No. Fee

Situation & Criteria

I am applying for a fee waiver based on the following situation and criteria:
Public Benefits. Within the last 180 days, I qualified for or received a “federal means-tested public
benefit.” Please see attached evidence.
Low Income. My annual household income of $______ which taxes were paid for the most recent tax
year (if high enough to pay taxes on), is at or below the poverty level of $______, as indicated in the most
recent poverty guidelines set by the Secretary of Health and Human Services. Please see attached income
tax returns.
□ Age. I am elderly (age 65 or over).
□ Disability. I have a disability that has been determined by the Social Security Administration, Health
and Human Services, Veteran’s Administration, or other appropriate federal agency. Please see attached
documentation of my disability determination.
Dependents. I have ___ (number of) dependents in my family household who are seeking derivative
status or benefits concurrently with me (the principal applicant or beneficiary). Please see attached
evidence of my living arrangements.
□ Special Situation. I am in a special situation that requires humanitarian or compassionate
consideration, described below. Please see attached evidence, if available.
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
Fee Waiver Request & Declaration for: _______________________________________________
A-number:________________________
Attachment 3-1

1
 Attachment 3-1
Overall Financial Picture

Information about my household and family members:

I live in the same household with (number of) persons, listed below. I am attaching evidence of my
living arrangements.

Name Age Relationship to me Employed (yes/no) Income

Information about my income

My total income each month (including that of my dependents, if applicable), from all sources, is $______.
Below I have listed all the sources of my income and the amount from each source. I am attaching
evidence of my income from these sources.

Source $ Amount per month

Wages/salary
SSI
TANF
Food Stamps
Other public benefits (as specified)
Other income (as specified)
TOTAL

Information about my assets

My total assets (including those of my dependents, if applicable), from all sources, are in the amount of
$_____. Below I have listed all of my assets and the amount each is worth. I am attaching evidence of my
assets.

Source $ Amount
Cash
Checking/savings accounts
Real estate
Personal property (as specified)
Other assets (as specified)
TOTAL
Fee Waiver Request & Declaration for: _______________________________________________
A-number:________________________
Attachment 3-2

2
Information about my expenses

My living expenses each month (including those of my dependents, if applicable) total $_______. I am
listing each expense below. I am attaching evidence of my expenses.

Source $ Amount per month

Housing (rent/mortgage)
Food
Utilities (electric/gas/phone)
Transportation
Medical
Child care
Clothing
Spousal and/or child support
Auto loan
Auto insurance
Credit cards
Other debts
Other expenses (specify)
TOTAL

I declare under penalty of perjury that the preceding is true and correct.

______________________________________ ________________
Signature of Declarant Date

Certification of Translation

I, ________________, affirm that I am fluent in __________ and English and that I have accurately
translated this declaration from English into the ____________ language to the declarant.

_______________________________________
Signature of Translator

Fee Waiver Request & Declaration for: _______________________________________________

A-number:________________________
Attachment 3-3

3
 S:\TR Sheets\U Visa I-918 With Prior Int. Rel. 6-3-08.doc
U VISA TECHNICAL REVIEW SHEET FORM I-918
For First-time U Visa Self Petitioners
Case # ________ Caseworker: ___________ Date Opened: ________ Date to TR-1 __________

Case/File Management Issue Yes No

Case completed to file within 10 days of opening?
If No, Brought to supervisor’s attention?
Appropriate fees collected, or grant intake and label?
Case summary and case notes properly entered?
File properly organized, tabbed, punched, etc?
Contract & fee schedule completed?
Case Monitoring and Red Flags completed?
Other immigration relief explored?
Are copies of other immigration cases in file?
Casenotes address potential conflicts?
Law Logix Issues to Check at TR Yes No
Full questionnaire completed?
All obviously answerable ?’s have response?
Correct process identified?
Activities dated and initialed?
?’s regarding charges answered correctly?
?’s regarding grant coverage answered?
Names and text not entered in all uppercase?
Client’s country of origin correctly identified?
Client’s county of residence correctly identified?

Envelope:
________ Address to mail U Visa Package: USCIS-Vermont Service Center
________ Certified mail slips correctly completed 75 Lower Welden Street
St. Albans, VT 05479
APPLICATION PACKAGE SHOULD BE ORGANIZED Sec. 1: I-918 & I-765 packages for lead petitioner (one binder clip)
AS FOLLOWS WITH A SEPARATE BINDER CLIP Sec. 2: I-918 & I-765 packages for each derivative (one binder clip)
FOR EACH SECTION:

SECTION 1
_____ Cover Letter with contents of package identified
Fee Waiver Package (if applicable) OR _____ $80 money order for Biometric Fee stapled to G-28
_____ Fee waiver declaration
____ Documentation to support fee waiver
_____ Documentation is clearly labeled and relevance identified
_____ G-28

LEAD U VISA PETITIONER

Form I-918 Petition for U-Nonimmigrant Status & Documentation:
Part 1.__________ Part 2.__________ Part 3. _________
Part 4.__________ Part 5.__________ Part 6.__________ Part 7.__________
TR 1 by:
_____ Copy of valid passport
_____ Criminal documents relating to investigation & prosecution & identifying case outcome Date:
_____ Medical records relating to injuries sustained by this petitioner Passes:
_____ Counseling documentation specific to this petitioner Does Not Pass
_____ Update on or outcome of criminal case clearly identified and verified in the casenotes.

Form I-918 Supplement B, U Nonimmigrant Status Certification: TR 2 by:

Part 1 _________ Part 2 ________ Part 3: 1___ 2 ___ 3 ___ 4 a.___b.___ c___ 5 ___ 6 ____ Date:
Part 4 _________ Part 5 ________ Part 6: (signature of certifying official identified in Part 2)___________ Passes:
Does Not Pass
SECTION 2 - DERIVATIVIES
Derivative #1 Form I-918a Petition for U-Nonimmigrant Status & Documentation:
Part 1.__________ Part 2.__________ Part 3. _________
Fee Waiver Package (if applicable) OR
Part 4.__________ Part 5.__________ Part 6.__________
_____ $80 money order for Biometric Fee stapled to G-28 _____ Copy of valid passport
_____ Full copy of lead petitioner’s fee waiver declaration _____ Criminal docs relating to investigation & prosecution & case outcome
____ Documentation to support fee waiver _____ Medical records relating to injuries sustained by this petitioner
_____ Documentation is clearly labeled and relevance identified _____ Counseling documentation specific to this petitioner
_____ G-28 _____ Outcome of criminal case clearly identified and verified in the casenotes.

Attachment 4-1
SECTION 2 - DERIVATIVIES
Derivative #1
Fee Waiver Package (if applicable) OR
_____ $80 money order for Biometric Fee stapled to G-28
_____ Full copy of lead petitioner’s fee waiver declaration
____ Documentation to support fee waiver
_____ Documentation is clearly labeled and relevance identified
_____ G-28
SECTION 2 - DERIVATIVIES
Derivative #2
Fee Waiver Package (if applicable) OR
_____ $80 money order for Biometric Fee stapled to G-28
_____ Full copy of lead petitioner’s fee waiver declaration
____ Documentation to support fee waiver
_____ Documentation is clearly labeled and relevance identified
_____ G-28
SECTION 2 - DERIVATIVIES
Derivative #3
Fee Waiver Package (if applicable) OR
_____ $80 money order for Biometric Fee stapled to G-28
_____ Full copy of lead petitioner’s fee waiver declaration
____ Documentation to support fee waiver
_____ Documentation is clearly labeled and relevance identified
_____ G-28
SECTION 2 - DERIVATIVIES
Derivative #4
Fee Waiver Package (if applicable) OR
_____ $80 money order for Biometric Fee stapled to G-28
_____ Full copy of lead petitioner’s fee waiver declaration
____ Documentation to support fee waiver
_____ Documentation is clearly labeled and relevance identified
_____ G-28
Attachment 4-2
Form I-918a Petition for U-Nonimmigrant Status & Documentation:
Part 1.__________ Part 2.__________ Part 3. _________
Part 4.__________ Part 5.__________ Part 6.__________
_____ Copy of valid passport
_____ Criminal docs relating to investigation & prosecution & case outcome
_____ Medical records relating to injuries sustained by this petitioner
_____ Counseling documentation specific to this petitioner
_____ Outcome of criminal case clearly identified and verified in the casenotes.
Form I-918a Petition for U-Nonimmigrant Status & Documentation:
Part 1.__________ Part 2.__________ Part 3. _________
Part 4.__________ Part 5.__________ Part 6.__________
_____ Copy of valid passport
_____ Criminal docs relating to investigation & prosecution & case outcome
_____ Medical records relating to injuries sustained by this petitioner
_____ Counseling documentation specific to this petitioner
_____ Outcome of criminal case clearly identified and verified in the casenotes.
Form I-918a Petition for U-Nonimmigrant Status & Documentation:
Part 1.__________ Part 2.__________ Part 3. _________
Part 4.__________ Part 5.__________ Part 6.__________
_____ Copy of valid passport
_____ Criminal docs relating to investigation & prosecution & case outcome
_____ Medical records relating to injuries sustained by this petitioner
_____ Counseling documentation specific to this petitioner
_____ Outcome of criminal case clearly identified and verified in the casenotes.
Form I-918a Petition for U-Nonimmigrant Status & Documentation:
Part 1.__________ Part 2.__________ Part 3. _________
Part 4.__________ Part 5.__________ Part 6.__________
_____ Copy of valid passport
_____ Criminal docs relating to investigation & prosecution & case outcome
_____ Medical records relating to injuries sustained by this petitioner
_____ Counseling documentation specific to this petitioner
_____ Outcome of criminal case clearly identified and verified in the casenotes.
 U NONIMMIGRANT VISAS FOR
VICTIMS OF CRIMES

The University of Texas School of Law

2008 Conference on Immigration and Nationality Law
San Antonio,
Antonio Texas

U VISA BACKGROUND

HISTORY: Created in October 2000 as part of

the Victims of Trafficking and Violence
Prevention Act
PURPOSE OF VISA: Strengthens ability of law
enforcement
f t to
t investigate
i ti t and d prosecute
t
designated crimes; offers protection to crime
victims and their family members

1
 U Non-immigrant Visa
INA Sec. 101(a)(15)(U)
z Applicant suffered “substantial physical or mental
abuse” as a result of victim of criminal activity
z Applicant (or in the case of an alien child under
the age of 16, the parent, guardian of applicant)
possesses information concerning criminal
activity
z Th criminal
The i i l activity
i i violated
i l d U.S.
U S law
l
z Immigrant has been helpful, is being helpful, or is
likely to be helpful to a Federal, State, or local law
enforcement official (If under age 16, this
requirement may be met by parent or guardian)
3

BENEFITS OF U VISA

z Nonimmigrant status in U.S. for up to 4 years,

and may be extended
z Employment authorization
z Possibility of nonimmigrant status for family
members
z Possibility of adjusting status to LPR after 3
years of U status.

2
 LIMITS AND WAIVERS

z Annual limit of 10,000 U-1 visas. This limit

does not include U visas granted to family
members.

z CIS may waive all inadmissibility grounds

grounds,
other than INA § 212(a)(3)(E) [genocide and
Nazi persecutions], if the waiver is in the public
interest.

TYPES OF CRIMINAL ACTIVITY

COVERED IN STATUTE
z Abduction
z Rape z False Imprisonment]
z Torture
z Blackmail
z Trafficking
z Extortion
z Incest
z Domestic violence z Manslaughter
z Sexual Assault z Murder
z Abusive Sexual Contact z Felonious Assault
z FGM z Witness Tampering
z Prostit tion
Prostitution z Obstruction of Justice
z Sexual Exploitation
z Perjury
z Being Held Hostage
z Attempt, conspiracy, or
z Peonage
Solicitation to commit any of the
z Involuntary Servitude
above mentioned crimes
z Slave Trade
z Any similar activity in violation of
z Kidnapping
federal, state or local criminal law

3
 ADJUSTMENT OF STATUS TO LPR
z 3 yrs continuous presence in U.S. in U status; a single 90 day
or aggregate 180 day absence breaks continuous presence,
unless absence related to investigation or prosecution of
crime or otherwise justified;
z Applicant has not unreasonably refused to assist in a
criminal investigation or prosecution;
z Applicant’s
Applicant s continued presence in the US is justified on
humanitarian grounds, to ensure family unity, or is otherwise
in the public interest; and
z Applicant has not engaged in genocide and Nazi
persecutions.

VAWA 2005 Amendments to

U Visa Provisions

1. Addition of unmarried siblings under 18 to list

of derivatives
2. Extreme Hardship Requirement for
derivatives eliminated
3
3. Duration of status of U non-immigrants
non immigrants
4. Change of nonimmigrant status to T or U

4
 New Regulations

z Interim regulations, but. . .

z Went into effect October 17, 2007
z Add new section to 8 CFR, § 214.14
z Text of new regs, and DHS’s summary
analysis of them
them, available at
http://www.uscis.gov/files/pressrelease/U-
visa_05Sept07.pdf

New Forms for U visas

z I-918 for principal applicants

z I-918 Supplement A for derivative beneficiaries
z I-918 Supplement B – certification form
z I-192 – not a new form – use for waivers of
inadmissibility grounds

10

5
 Fees for U visas

z I-918, 918 Supp A, 918 Supp B: FREE

z Note that applicants over 14 must pay $80
biometrics fee
z I-192: $545
– This is NOT WAIVEABLE
– VSC has indicated that U applicants may file
applications without waiver applications; if VSC
wants a waiver, they will issue RFE

11

What to Submit: Those with Interim

Relief

z Do not need to file I-918, Supplement B, law

enforcement certification
z VSC “suggests” re-submitting initial U interim
relief package, but not required
z USCIS will consider evidence previously
submitted for interim relief
z May file additional evidence

12

6
 What to Submit: New Applications

z Form I-918, Petition for U Nonimmigrant Status

z Form I-918 Supplement A for derivatives
z Form I-918, Supplement B, Law Enforcement Certification
z Any “additional evidence” petitioner wants USCIS to consider
z Statement by the Petitioner
z If inadmissible, Form I-192
– Note: VSC has said waiver app not req’d
req d for initial filing
filing, will issue an
RFE

13

Form I-918

z http://www.uscis.gov/files/form/I-918.pdf
z Most of the questions relate to the grounds of
inadmissibility

14

7
 Form I-918, Supplement B

z Form must be completed by a certifying official

of a certifying agency which is conducting
investigation or prosecution of the qualifying
crime. New 8 CFR 214.14(c)(2)(i)
z Must be signed
g within the six months
immediately preceding the submission of form
I-918

15

Certifying Official

z Head of the certifying agency or any person(s)

in a supervisory role who has been specifically
designated by the head of the agency to issue
certifications. New 8 CFR 214.14(a)(3)

16

8
 Certifying Agency

z A Federal, State or local law enforcement

agency, prosecutor, judge, or other authority
that has responsibility for the detection,
investigation, prosecution, conviction or
sentencing of qualifying criminal activity.

17

“Additional Evidence” – victim of

qualifying criminal activity

z Trial transcripts
z Court docs
z News articles
z Police reports
z Od
Orders off protection
t ti
z Affidavits of other witnesses such as medical
personnel

18

9
 “Additional Evidence” – nature of abuse
suffered

z Reports and affidavits from police, judges,

other court officials, medical personnel, school
officials, clergy, social workers
z Evidence of order of protection
z Combo of photo of visibly injured applicant
supported by affidavits of individuals w/
personal knowledge of the facts

19

“Additional Evidence” – possesses

information re the crime

z Reports and affidavits from police, judges,

other court officials

20

10
 “Additional Evidence” – petitioner’s age
or incompetence

z Where petitioner is child under 16 or is incapacitated or

incompetent, parent, guardian or next friend may submit evidence
on his/her behalf. If so,
– Must provide evidence of qualifying relationship to the petitioner
z Birth certificates
z Court docs naming individual as petitioner’s next friend
– Must provide evidence of age, incapacity or incompetence of the
petitioner
z Birth certificates
z Medical records
z Reports of licensed medical professionals showing incompetence or
incapacity

21

“Additional Evidence” – Petitioner has

been helpful

z Trial transcripts, court docs, police reports,

news articles, copies of reimbursement forms
for travel to and from court, affidavits of other
witnesses or officials
z If under 16,, incompetent
p or incapacitated,
p ,
parent, guardian or next friend may submit
evidence (with same documentation as above)

22

11
 “Additional Evidence” – qualifying
criminal activity

z Copy of statutory provisions showing elements

of the offense
z Factual info about the crime showing it is
similar to the list of qualifying criminal activity
z If criminal activity took place outside UU.S.,
S must
include statutory provisions providing
extraterritorial jurisdiction and showing violation
of federal law/prosecutable in federal court

23

Statement by the Petitioner

z Required
z Describe facts of his/her victimization
z Nature of the criminal activity
z When it occurred
z Who was responsible
z Events surrounding crime
z How it came to be investigated or prosecuted
z Wh t substantial
What b t ti l physical
h i l and/ord/ mentalt l abuse
b resulted
lt d
z If under 16, incompetent or incapacitated, parent, guardian or next
friend must submit statement w/ as much info re crime and
physical/mental abuse as possible.

24

12
 What to Submit: Derivatives

z Principal must submit I-918A for each

qualifying derivative
z File along with I-918, or after – may file
anytime while in U status
z While I-918 is pending: file I-918A with copy of
I 918
I-918
z After principal in U status: file I-918A with I-94
showing U status

25

Supporting Evidence: Derivatives

z Submit along with I-918A:

– Evidence of qualifying relationship to principal (e.g.
birth and/or marriage certificates)
– I-192 with fee if inadmissibility waiver needed

26

13
 Adjudication

z In adjudicating, USCIS must consider “any

credible evidence” – same as for VAWA
applications
z Info provided by U applicants protected from
disclosure

27

Waivers

z I-192 form
z http://www.uscis.gov/files/form/i-192.pdf
z General waiver form for nonimmigrant visas
z USCIS will update form to reflect U
applications
z Write “N/A” on questions that don’t pertain

28

14
 Waiver eligibility

z ALL inadmissibility grounds waiveable except

212(a)(3)(E). INA § 212(d)(14)
z Regs indicate that for “violent or dangerous
crimes” or security grounds under 212(a)(3)
DHS will g
grant waiver only y in “extraordinary
y
circumstances.”

29

Standard for granting waiver

z “In the national or public interest.”

z Hard to say yet how VSC/DHS will interpret
this standard.
z In many cases, being a U victim should in
theory satisfy the “national
national or public interest”
interest
standard.

30

15
 Key Inadmissibility Issues

z Entry w/o inspection – INA § 212(a)(6)(A)

z Overstaying – INA § 212(a)(7)(B)
z USCIS has not said anything about public
charge considerations

31

Waiver for Lack of Passport

z INA § 212(a)(7)(B)(I) requires nonimmigrant to

have passport valid for at least six months
z Waiver is possible where there are “unforeseen
emergency” reasons for not having passport
z File this waiver on form II-193;
193; fee is $545

32

16
 Employment Authorization

z Incident to status for Us – both principals and

derivatives
z 8 CFR 274a.12(a)(19) and (20) updated to
reflect this
z EAD will be valid for no longer than period of U
validity
lidit
z If EAD expires before U expires, file I-765 with
fee (or fee waiver request)

33

EADs for Principal Applicants

z Automatically issued
z Employment authorization is “incident to
status”
z No need to file I-765

34

17
 EADs for Derivatives

z Derivatives must file I-765 along with the I-918

Supplement A
z Derivatives must pay I-765 fee (or request a
fee waiver)

35

Renewal EADs for those with interim

relief

z For those granted interim relief who have not

yet filed I-918, and whose EAD expires before
filing of I-918, USCIS will issue new EAD
based on interim relief
z Must file I-765 with filing
g fee

36

18
 Travel

z Must obtain a U visa in order to re-enter the US

in U status
z BEWARE unlawful presence bars!!!
z May file for waiver of passport requirement if
emergency U-related
U related reasons prevent U holder
from obtaining passport
z File on form I-193

37

Adjustment

z U holders will be eligible to file for adjustment

three years after interim relief was granted.
z No regulations yet on adjustment

38

19
 U resources online

z vawaupdates@yahoogroups.com
z http://www.ilrc.org/uvisa.php
z http://www.asistaonline.org/u.visa.asp
z http://www.legalmomentum.org/legalmomentu
m/programs/iwp/

39

20
 TAB 10
Primer: Getting a Green Card
PRIMER: GETTING A
GREEN CARD

Presented by
T. Douglas Stump

32nd Annual Conference

on Immigration and Nationality Law
October 2008
Copyright © 2008, American Immigration Lawyers Association. Reprinted, with permission, from Navigating the Fundamen-
tals of Immigration Law 265 (2008–09 ed.).
ADJUSTMENT OF STATUS FOR BEGINNING PRACTITIONERS
updated by Vincent W. Lau*
INTRODUCTION
Adjustment of status (AOS) is the process used
by a foreign national who is physically present in the
United States to become a lawful permanent resident
(LPR). AOS is an alternative to obtaining an immi-
grant visa through a U.S. consulate abroad, a process
known as “consular processing” (CP). Depending on
processing times at U.S. Citizenship and Immigra-
tion Services (USCIS) service centers, AOS may be
preferred by foreign nationals over CP because: (1)
it avoids the expense and inconvenience of travel to
the home country; (2) AOS applicants, including
dependent family members, are entitled to employ-
ment authorization and permission to travel while
the AOS application is pending; (3) employment-
based AOS applicants receive job mobility (i.e.,
“portability”) benefits provided under recent legisla-
tion; and (4) there are more options for reconsidera-
tion of an unfavorable decision by USCIS.
This article is an introduction to the basic elements
of AOS and covers eligibility issues, the documents
needed to file an adjustment application, where and
when to file the application, employment authoriza-
tion and advance parole, and AOS before the immi-
gration court.
AUTHORITIES
The law governing AOS is set forth in the Immi-
gration and Nationality Act of 1952 (INA) at §245.
Regulations detailing eligibility and procedure for
Updated from Navigating the Fundamentals of Immigration
Law 271 (2007–08 ed.). Copyright © 2007, American Immi-
gration Lawyers Association (AILA), available from AILA
Publications, 1-800-982-2839, www.ailapubs.org.
Articles do not necessarily reflect the views of the American
Immigration Lawyers Association.
*
Vincent W. Lau practices immigration with the law firm
of Flynn & Clark, P.C. located in Cambridge, MA. He has
been a member of AILA (NE Chapter: Ethics Committee
Co-chair, 2004–05, YLD co-chair, 2002–03; and N. CA
Chapter) and is on the Board of Directors of the Asian
American Lawyers Association of Massachusetts. Mr. Lau
has contributed to a number of AILA and Massachusetts
Continuing Legal Education publications and has spoken at
local and national forums on immigration. He received his
B.A. from Yale College and his J.D. from Boston College.
265
AOS applications are found at 8 Code of Federal
Regulations (CFR) §§245.1–.22, 1245.1–.22.
ELIGIBILITY
AOS, if used, is the final step in the immigration
process.
Basic eligibility requirements for AOS are listed
in 8 CFR §§245.1, 1245.1. Unfortunately, this sec-
tion and the other regulations relating to AOS are
not a model of clarity, and careful reading is re-
quired to understand the sometimes-overlapping eli-
gibility criteria. First, some basic concepts of eligi-
bility will be discussed. Second, the specific grounds
of ineligibility listed in the regulations will be de-
scribed briefly.
Note that AOS is considered to be a discretionary
benefit.1 Although the applicant is statutorily eligi-
ble, USCIS may deny the application based upon a
determination that discretion should not be favorably
exercised.2
Physical Presence in the United States
The applicant must be physically present in the
United States at the time the AOS application is
submitted.3 Specific proof of physical presence is
not usually required, but the applicant should be
prepared to present proof that he or she was physi-
cally present on the filing date if requested.
Admitted, Paroled, and in Valid Status
The applicant, in most cases, must have been
admitted or paroled to the United States following
inspection by an immigration officer.4 Exceptions to
this rule include certain special immigrants (as de-
fined in Immigration and Nationality Act (INA)
§101(a)(27)(J) and (K)), who are considered to be
paroled for the purposes of applying for AOS de-
1
See Immigration and Nationality Act of 1952 (INA)
§245(a), Pub. L. No. 82-414, 66 Stat. 163 (codified as
amended at 8 U.S. Code (USC) §§1101–1524).
2
See Ka Fung Chan v. INS, 634 F.2d 248 (5th Cir. 1981).
3
8 CFR §§245.1(a), 1245.1(a).
4
INA §245(a); 8 Code of Federal Regulations (CFR)
§§245.1(b)(3), 1245.1(b)(3).
266 NAVIGATING THE FUNDAMENTALS OF IMMIGRATION LAW (2008–09 ED.)
spite the manner of actual entry,5 and persons quali-
fying for AOS pursuant to INA §245(i).6
Proof of admission is usually an I-94 card com-
pleted by the applicant when entering the United
States and endorsed at the border or port of entry.7
However, certain applicants are exempt from the
I-94 requirement.8 If the I-94 card has been lost or
was not issued, the applicant may request an I-94 or
replacement via Form I-102, Application for Re-
placement/Initial Nonimmigrant Arrival-Departure
Document. If no I-94 card was issued despite in-
spection, the applicant must prove lawful entry to
the examining officer by other means.9
Following lawful entry, the applicant also must
have maintained his or her nonimmigrant status to
be eligible to apply for AOS.10 Except for immediate
relatives of U.S. citizens,11 special immigrants as
defined in INA §101(a)(27)(H), (I), (J), or (K), and
certain applicants protected by the provisions at INA
§§245(i) and (k), unauthorized work or other failure
to maintain lawful status—such as overstaying the
period of admission—will result in ineligibility for
AOS.12 In most cases, departure from the United
States will not “cure” prior violations of status or
unauthorized employment.13 Therefore, the appli-
cant’s complete history must be examined to deter-
mine if the AOS application may be made.
Immigrant Visa Immediately Available
The applicant must be eligible to receive an immi-
grant visa and the immigrant visa must be immedi-
ately available for him or her to apply for AOS.14 The
means by which an applicant becomes eligible to re-
5 cation, if applicable—I-526, or I-360) is properly
INA §§245(g) and (h); 8 CFR §§245.1(a), 1245.1(a) (spe-
cial immigrant juveniles) and §§245.8(a), 1245.8(a) (certain
persons having served in the military).
6
INA §245(i); 8 CFR §§245.1(b), 1245.1(b).
7
8 CFR §§235.1(f), 1235.1(f).
8
Id.
9 16
See Form I-102 Instructions, available at www.uscis.gov/
files/form/i-102.pdf.
10
See 8 CFR §§245.1(b)(4), (5), (6), (9) and (10),
1245.1(b)(4), (5), (6), (9) and (10).
11
“Immediate relative” is defined in INA §201(b)(2)(A)(i).
Generally, it is a spouse, child (as defined in INA
§101(b)(1)), or parent of a U.S. citizen.
12
See 8 CFR §§245.1(b)(10), 1245.1(b)(10).
13
8 CFR §§245.1(d)(3), 1245.1(d)(3).
14
INA §245(a); 8 CFR §§245.1(a), 1245.1(a).
ceive an immigrant visa are outside the scope of this
article and are addressed elsewhere in this volume.
In the case of immediate relatives of U.S. citi-
zens, the Petition for Alien Relative (Form I-130)
and the AOS application may be made simultane-
ously—sometimes referred to as “one-step” process-
ing—by direct mail to USCIS National Benefits
Center (NBC) for initial processing, then adjudica-
tion by the governing USCIS district office.15 Addi-
tionally, concerning employment-based LPR appli-
cants, as of July 31, 2002, the Petition for Immigrant
Worker (Form I-140) and the AOS application may
be filed concurrently at USCIS’s service center if an
immigrant visa is immediately available.16 There are
various reasons why a practitioner may or may not
want to file an AOS application concurrently with an
I-140 petition; it is the practitioner’s responsibility
to weigh the benefits and risks of doing so with the
client on a case-by-case basis.
Whether an immigrant visa is immediately avail-
able is determined with reference to the classifica-
tion in which the applicant is attempting to immi-
grate.17 With the major exception of immediate rela-
tives of U.S. citizens (who are subject to no numeri-
cal limitations18), immigrant categories are assigned
a limited number of visas each year.19 Moreover, the
number of visas available in each category is allo-
cated on a per-country basis.20 The result of this al-
location system is that for some categories in which
the demand for immigrant visas outstrips the supply,
a waiting line is formed.
A person’s place in the queue is determined by
his or her “priority date,” which is defined as the
date upon which the immigrant petition (Forms I-
130, I-140—or underlying alien employment certifi-
filed.21 The diversity visa lottery is allocated in a
15
8 CFR §§245.2(a)(1), (2), 1245.2(a)(1), (2); 69 Fed. Reg.
67751 (Nov. 19, 2004) (direct mail program).
67 Fed. Reg. 49561 (July 31, 2002). See D. Shenoy, “The
Concurrent Filing Rule—An Old Rule with a New Impact,”
AILA New York Chapter Immigration Law Symposium
Handbook 3 (AILA 2002).
17
See INA §§201 and 203.
18
INA §201(b)(2)(A)(i).
19
See INA §201.
20
See INA §202.
21
8 CFR §§204.1(c) (family-based petitions) and 204.5(d)
(employment-based petitions).
ADJUSTMENT OF STATUS FOR BEGINNING PRACTITIONERS
similar system based on approval number.22 The pri-
ority dates before which visas are being granted are
listed in the Department of State’s (DOS) Visa Bul-
letin, published monthly. It may be obtained at
http://travel.state.gov/visa/frvi/bulletin/bulletin_314
3.html; by e-mail: listserv@calist.state.gov; or by
recorded phone message, on (202) 663-1541. There
is a direct link to the Visa Bulletin on the AILA In-
foNet home page, under “Processing Times.” Diver-
sity visa lottery numbers are also listed in the Visa
Bulletin. If the applicant’s priority date is before the
date listed in the Visa Bulletin, a visa is considered
to be immediately available.
Note, however, that the visa is not assigned until
the AOS application is granted. Therefore, a visa
must be immediately available both at the time the
AOS application is made and on the date the appli-
cation is granted. If a waiting line develops in the
applicable category while the AOS application is
pending, then the application will be held in abey-
ance until a visa becomes available. The applicant
may maintain status as an AOS applicant for the en-
tire time the AOS application is pending.
Admissible to the United States
Applicants for AOS must be admissible to the
United States and not deportable.23 A detailed dis-
cussion of the grounds of inadmissibility24 and
deportability25 is included elsewhere in this volume.
Derivative Family Members
Most categories for immigration (with the major
exception of immediate relatives of U.S. citizens)
allow for AOS for certain family members along
with the principal applicant.26 These family mem-
bers are sometimes referred to as “derivatives” be-
cause their ability to immigrate derives from the
family member who is the principal applicant. As
with dependent family members for nonimmigrant
visa purposes, the derivative family members in-
clude a spouse and unmarried children under 21.27
To be a derivative child, the applicant must meet the
definition of that term set forth in INA §101(b)(1).
22
See INA §203(e)(2).
23
INA §245(a).
24
INA §212.
25
INA §237.
26
See INA §203(d).
27
INA §101(b)(1)(A)–(F).
267
No person may derive the ability to immigrate
based on a family relationship to an immediate rela-
tive of a U.S. citizen.28 However, if a marriage is the
basis of the immigration application, children who
are under 18 at the time of the marriage will qualify
for AOS based on a separate immigrant petition by
the U.S. citizen.29
Grounds of Ineligibility
The specific grounds of ineligibility for AOS are
listed in 8 CFR §§245.1(b), 1245.1(b) (restricted
aliens) and §§245.1(c), 1245.1(c) (ineligible aliens).
The difference between these two categories is that
“restricted aliens” may apply for AOS if they qualify
under INA §245(i), but “ineligible aliens” may not
apply for AOS in any case.
“Restricted aliens” include those who:
ƒ Entered the United States in transit without a
visa;30
ƒ On arrival to the United States were serving in
any capacity on board a vessel or aircraft or were
destined to join a vessel or aircraft in the United
States to serve in any capacity thereon;31
ƒ Were not admitted or paroled;32
ƒ On or after January 1, 1977, were employed in
the United States without authorization prior to
filing an AOS application;33
ƒ On or after November 6, 1986, are not in lawful
immigration status on the date of filing the AOS
application;34
ƒ On or after November 6, 1986, fail to maintain
continuously a lawful status (other than through
28
See INA §203(d); 8 CFR §204.2(a)(4).
29
The children are also immediate relatives of a U.S. citizen
pursuant to the definition of “child” in INA §101(b)(1),
which includes step-children.
30
8 CFR §§245.1(b)(1), 1245.1(b)(1).
31
8 CFR §§245.1(b)(2), 1245.1(b)(2).
32
8 CFR §§245.1(b)(3), 1245.1(b)(3). However, 8 CFR
§§245.1(a), 1245.1(a) and 245.8, 1245.8 provide exceptions
by considering certain special immigrants to be paroled for
adjustment of status (AOS) purposes.
33
See 8 CFR §§245.1(b)(4), 1245.1(b)(4), which also pro-
vide exceptions to ineligibility for immediate relatives of
U.S. citizens, certain special immigrants, and certain nurses.
34
See 8 CFR §§245.1(b)(5), 1245.1(b)(5), which also pro-
vide exceptions to ineligibility for immediate relatives of
U.S. citizens and certain special immigrants.
268 NAVIGATING THE FUNDAMENTALS OF IMMIGRATION LAW (2008–09 ED.)
no fault of his or own or for technical reasons)35
since entry;36
ƒ Were admitted as a visitor under the visa waiver
provisions of 8 CFR §§212.1(e), 1212.1(e);37
ƒ Were admitted as a Visa Waiver Pilot Program
(now a permanent program)38 visitor;39
ƒ Seeks AOS pursuant to an employment-based im-
migrant visa petition and is not maintaining a law-
ful nonimmigrant status at the time of filing;40 and
ƒ Have ever been employed in the United States
without authorization or have otherwise at any
time violated the terms of their admission.41
“Ineligible aliens” include those who:
ƒ Are seeking or engaging in “gainful employ-
ment” in the United States and are not the benefi-
ciary of a labor certification issued by the De-
partment of Labor (unless exempt from this re-
quirement);42
ƒ Are subject to the two-year foreign residence
requirement of INA §212(e), unless such re-
quirement has been fulfilled or waived, and in the
case of a physician who was granted a waiver
based on the “Conrad State 30” program, the
terms of INA §214(k) and 8 CFR §§212.7(c)(9),
1212.7(c)(9) have been met (having to do with
serving three years in the medically underserved
area for which the waiver was granted);43
ƒ Have an A, E, or G nonimmigrant status or an
occupational status that would entitle him or her
35
8 CFR §§245.1(d)(2), 1245.1(d)(2), which include a list of
situations that might result from “no fault of the applicant or
for technical reasons.”
36
See 8 CFR §§245.1(b)(6), 1245.1(b)(6), which also pro-
vide exceptions to ineligibility for immediate relatives of
U.S. citizens and certain special immigrants.
37
8 CFR §§245.1(b)(7), 1245.1(b)(7) (pertaining to aliens
entering Guam pursuant to §14 of Pub. L. No. 99-396, “Om-
nibus Territories Act”).
38
See Visa Waiver Permanent Program Act, Pub. L. No.
106-396, 114 Stat. 1637 (Oct. 30, 2000).
39
See 8 CFR §§245.1(b)(8), 1245.1(b)(8), which also pro-
vide exceptions to ineligibility for immediate relatives of
U.S. citizens.
40
8 CFR §§245.1(b)(9), 1245.1(b)(9).
41
See 8 CFR §§245.1(b)(10), 1245.1(b)(10), which also pro-
vide exceptions to ineligibility for immediate relatives of
U.S. citizens, certain special immigrants, and others.
42
8 CFR §§245.1(c)(1), 1245.1(c)(1).
43
8 CFR §§245.1(c)(2), 1245.1(c)(2).
to such a nonimmigrant status, unless he or she
first signs and submits the written waiver re-
quired by INA §247(b) and 8 CFR §247;44
ƒ Are claiming eligibility for AOS as an immediate
relative or other family-based category and are
not the beneficiary of a valid, unexpired immi-
grant petition (Form I-130);45
ƒ Are already admitted as a lawful permanent resi-
dent on a conditional basis under INA §§216 or
216A (based on marriage to a U.S. citizen, the
duration of which marriage was less than two
years at the time the immigrant visa was granted)
regardless of any other visa category for which
he or she may be eligible;46
ƒ Are admitted to the United States as a fiancé(e)
or spouse (K-1 or K-3 status) or the dependent of
a fiancé(e) or spouse (K-2 or K-4 status) unless
the AOS application is based on marriage to the
K visa petitioner and, in the case of a fiancé(e),
the marriage was contracted within 90 days of
entry into the United States;47
ƒ Are S status nonimmigrants, unless the AOS ap-
plication is made pursuant to the request of law
enforcement authorities as specified in INA
§101(a)(15)(S) and 8 CFR §§245.11, 1245.11;48
and
ƒ Seek AOS based upon a marriage occurring on or
after November 10, 1986, and while the applicant
was in exclusion, deportation, or removal pro-
ceedings or judicial proceedings related thereto.49
Note that the absolute bar to adjustment of arriv-
ing aliens in removal proceedings has been re-
moved.50
44
8 CFR §§245.1(c)(3), 1245.1(c)(3).
45
8 CFR §§245.1(c)(4), 1245.1(c)(4).
46
8 CFR §§245.1(c)(5), 1245.1(c)(5).
47
8 CFR §§245.1(c)(6), 1245.1(c)(6).
48
8 CFR §§245.1(c)(7), 1245.1(c)(7).
49
See 8 CFR §§245.1(c)(8), 1245.1(c)(8), which provide a
detailed explanation of the procedure and exceptions relating
to this ground of ineligibility. See also INA §245(e).
50
71 Fed. Reg. 27585 (May 12, 2006), published on AILA
InfoNet at Doc. No. 06051561 (posted May 15, 2006); see
M. Aytes, “Eligibility of Arriving Aliens in Removal Pro-
ceedings to Apply for Adjustment of Status and Jurisdiction
to Adjudicate Applications for Adjustment of Status” (Jan.
12, 2007), published on AILA InfoNet at Doc. No. 07030661
(posted Mar. 6, 2007) (hereinafter USCIS Memorandum,
Jan. 17, 2007); see also M. Kenney, “USCIS Adjustment of
Status of ‘Arriving Aliens’ with an Unexecuted Final Order
continued
ADJUSTMENT OF STATUS FOR BEGINNING PRACTITIONERS
APPLICATION PROCEDURE
The AOS application is made initially at the ap-
propriate USCIS service center (unless the applicant
is in removal proceedings, or other exceptions, such
as asylum, apply).51 Generally, the application is
adjudicated at the district office having jurisdiction
over the residence of the applicant if it is a family-
based application, and at the service center if it is
any other type of application (employment-based,
special immigrant, etc.).52 An AOS application made
in the course of removal proceedings is made with
the immigration judge.53
The application is made on Form I-485,54 but
several other forms and documents must be submit-
ted along with this form to comply with the regula-
tions and to prove eligibility.
Forms and Documentation Required
Following is a list of the most common forms
and documentation required to file an AOS case.
Note that not all documentation is required for each
case, and also that some cases may require addi-
tional documentation not included in this list.
ƒ Application to Register Permanent Residence or
to Adjust Status, Form I-485;
ƒ Supplement A to Form I-485 (if the case is being
filed pursuant to INA §245(i));
ƒ Biographic Information, Form G-325A (for ap-
plicants between the ages of 14–79);55
ƒ Photographs meeting USCIS specifications (see
Form M-603, USCIS Is Making Photos Simpler,
www.uscis.gov/files/nativedocuments/M-603.pdf).
of Removal” (Mar. 8, 2007), published on AILA InfoNet at
Doc. No. 07031260 (posted Mar. 15, 2007) (American Im-
migration Law Foundation (AILF) Practice Advisory) (here-
inafter AILF Practice Advisory, Mar. 8, 2007).
51
8 CFR §§245.2(a)(1), 1245.2(a)(1). Initial filing for family-
based and most other non–employment-based applications gen-
erally is made at the National Benefits Center (NBC), through
the “Direct Mail” program, rather than at the local USCIS dis-
trict office. 69 Fed. Reg. 67751 (Nov. 19, 2004). See instruc-
tions on Form I-485; see also USCIS website for Form I-485
instructions and applicable Special Instructions and
https://egov.immigration.gov/crisgwi/go?action=offices.typ
e&OfficeLocator.office_type=SC for processing guidelines
and procedures for all service centers.
52
8 CFR §§245.2(a)(1), 1245.2(a)(1).
53
Id.
54
8 CFR §§245.2(a)(3), 1245.2(a)(3).
55
Id.
269
The number of photographs required depends on
the type of case and ancillary benefits sought;
ƒ Medical Examination of Aliens Seeking Adjust-
ment of Status, Form I-693, and Supplement
(supplied by the Centers for Disease Control and
Prevention to the Designated Civil Surgeons) (to
document that there are no medical grounds for
denial);56
ƒ Affidavit of Support, Form I-864 (for family-
based cases or those employment-based cases in
which the sponsor is a relative)57 or I-134 (for
dependent family members in employment-based
cases) (to document that there is no ground for
denial based on likelihood of becoming a “public
charge”);58
ƒ Approval Notice, Form I-797 (for Form I-130,
I-140, I-360 or I-526 petition, if applicable);
ƒ Copy of applicant’s passport and Form I-94 (to
prove lawful entry);59
ƒ Copies of all previous I-20s, DS-2019s (formerly
IAP-66s), Form I-797 Approval Notices for non-
immigrant status, as applicable (to prove mainte-
nance of nonimmigrant status);
ƒ Copy of birth certificate (to prove identity and
also necessary family relationship, if applicable);
ƒ Copy of marriage certificate, if applicable (both
for cases in which the marriage forms the basis of
the AOS application and dependent spouses in
other cases);
ƒ Copy of official proof of termination of any prior
marriage, if applicable;
ƒ Proof of offer of employment by petitioner in
employment-based cases;
ƒ Readable copy of photo ID, such as drivers li-
cense or identity page of passport for identifica-
tion and security background check purposes;60
ƒ Application for Employment Authorization,
Form I-765 if applying for employment authori-
zation;61
56
INA §212(a)(1); 8 CFR §§245.5, 1245.5.
57
INA §§212(a)(4)(C) and (D).
58
INA §212(a)(4).
59
8 CFR §§235.1, 1235.1.
60
Security clearances through the Interagency Border In-
spection System (IBIS) must be processed for all AOS appli-
cants as of April 2002. See “April News Flash”, published on
AILA InfoNet at Doc. No. 02062441 (posted June 24, 2002).
270 NAVIGATING THE FUNDAMENTALS OF IMMIGRATION LAW (2008–09 ED.)
ƒ Application for Travel Document, Form I-131 if
applying for advance parole;62
ƒ Filing fees (the current schedule of filing fees
should be consulted as filing fees are subject to
change, available on the Internet under “Immigra-
tion Forms” at http://uscis.gov/portal/site/uscis; and
ƒ Notice of Entry of Appearance as Attorney or Rep-
resentative, Form G-28 (if represented).63
Manner of Application and Receipts
Applications made at the service center must be
submitted by mail or courier. Applications at the
district office, when required or permitted, may be
made either by mail, by courier, or in-person de-
pending on local requirements and preferences. In
any case, proof of the date of filing is often critical.
Therefore, a traceable method of delivery, such as
U.S. Postal Service Express Mail; Federal Express;
UPS; or certified mail, return receipt requested, is
strongly recommended. If ever filed in person, often
a cash register receipt is all that is provided. How-
ever, this will contain the applicant’s file number
and should be saved to prove filing. When mailed to
a service center, a receipt Form I-797C will be is-
sued and sent to the applicant or his or her counsel.
Some district offices also issue receipt notices by
mail.
Case Processing
Each USCIS office has its own variation on the
procedure for processing AOS applications. Gener-
ally, following the filing, the applicant, if age 14 or
older, will receive a biometrics notice with an ap-
pointment for fingerprinting. Applicants will be re-
quired to appear in person at the nearest USCIS ap-
plication support center to have their fingerprints
taken and transmitted to the Federal Bureau of In-
vestigation (FBI) for a background check. A photo-
graph and signature may also be taken, as necessary.
Some time later, the applicant is scheduled for an
interview. In some cases, though, certain applicants
for AOS will not be interviewed.64 These applicants
can include employment-based applicants, as well as
61
8 CFR §§274a.12(c)(9), 1274a.12(c)(9).
62
8 CFR §223.2.
63
8 CFR §103.2(a)(3).
64
See USCIS Memorandum, “Revised Interview Waiver
Criteria for Form I-485 Application to Register Permanent
Residence or Adjust Status” (Jan. 5, 2005), published on
AILA InfoNet at Doc. No. 05030262 (posted Mar. 2, 2005).
children and parents of U.S. citizens. This practice
varies from one USCIS service center or district of-
fice to another.
Once the AOS application is approved, the appli-
cant must obtain temporary evidence of permanent
resident status. The approval notice alone is not suf-
ficient evidence for admission to the United States
or for employment authorization. An I-551 tempo-
rary stamp in the alien’s unexpired passport or a
temporary resident card can be issued at the nearest
USCIS district office for both family-based and em-
ployment-based applicants.65 These are generally
valid for one year, which is normally ample time for
the applicant to receive the actual permanent resi-
dent card, Form I-551, (the infamous green card)
from USCIS. If production of the permanent resident
card is delayed, the I-551 stamp or temporary card
may be initially obtained, or renewed, in one-year
increments. However, if the I-551 appears to be lost
in the mail or is not forthcoming within a reasonable
period of time, it may be necessary to file a Form I-
90 with the appropriate service center ultimately to
obtain the issuance of the card.
Timeframes for processing AOS applications
vary dramatically by district and service center. Cur-
rent service center and district office processing
times for AOS applications are available on the
AILA InfoNet or on USCIS’s website.66
ANCILLARY BENEFITS
AOS applicants are entitled to the ancillary bene-
fits of employment authorization and travel permis-
sion abroad/entry document (advance parole) while
awaiting adjudication of their case. These benefits
are discussed in more detail below. Note, however,
that it is not always necessary or advisable for all
AOS applicants to apply for these benefits. For ex-
ample, if the applicant is in valid H or L status, she
may continue to travel and continue to work under
the terms of her underlying status and work authori-
zation.67 If the H or L status is maintained, denial of
65
Issuance of the I-551 temporary stamp varies among dis-
trict offices, in practice.
66
For the most current times, see AILA InfoNet, “Processing
Times,” on the home page, or the government website, at
https://egov.immigration.gov/cris/jsps/ptimes.jsp.
67
See 8 CFR §§245.2(a)(4)(ii)(C), 1245.2(a)(4)(ii)(C) (travel
with advance parole) and 8 CFR §§274a.12(b)(9),
1274a.12(b)(9) and (12) (work authorized incident to H or L
status for specific employer).
ADJUSTMENT OF STATUS FOR BEGINNING PRACTITIONERS
the AOS application does not result in the loss of
authorized status and consequent unlawful presence.
For another example, if the applicant has in-
curred more than 180 days of unlawful presence, he
or she will trigger the bar to admissibility by travel-
ing outside the United States even with an advance
parole document.68 Therefore, a request for ancillary
benefits must be considered carefully.
Employment Authorization
Applicants for AOS are eligible for employment
authorization.69 In most circumstances, USCIS is
required by regulation either to adjudicate the Ap-
plication for Employment Authorization (Form I-
765) within 90 days of filing or issue an interim em-
ployment authorization.70 USCIS will grant em-
ployment authorization in increments not exceeding
one year during the period the application is pending
(including periods of administrative appeal or judi-
cial review). An employment authorization docu-
ment (EAD) may be extended annually as long as
the application for AOS remains pending.
Applicants who are seeking AOS through em-
ployment-based, asylee, and refugee cases must seek
renewal of EADs through the regional service cen-
ters in sufficient time before expiration of the cur-
rent EAD to be assured of continuous employment
authorization. Processing times at the NBC also
should be consulted to determine the appropriate
time for submission of renewal applications in fam-
ily-based cases.
Practice Pointer: On February 4, 2008, USCIS
announced that it would deny any applications for
EAD extensions filed more than 120 days before the
EAD expiration date.71 By regulation, when an EAD
approval has been delayed beyond 90 days at
USCIS’s service center, AOS applicants may apply
68
INA §212(a)(9)(B).
69
8 CFR §§274a.12(c)(9), 1274a.12(c)(9).
70
8 CFR §§274a.13(d), 1274a.13(d). Note, however, that
USCIS offices have considered the 90-day clock to be
stopped if a request for evidence (RFE) has been issued on
the I-765 or underlying application or petition. See USCIS
Liaison Meeting Minutes (Sept. 26, 2006), published on
AILA InfoNet at Doc. No. 06112165 (posted Nov. 21, 2006)
(hereinafter USCIS Liaison Meeting Minutes, Sept. 26,
2006).
71
“USCIS Updates Website Information on Filing for an
EAD Extension (Updated 2/5/08),” published on AILA In-
foNet at Doc. No. 08020430 (posted Feb. 5, 2008).
271
for an interim EAD.72 With the standardization of
the direct mail program nationally, a district office
no longer accepts EAD applications for filing, in-
cluding interim EAD applications.73 USCIS has
stated a firm commitment to insure EAD application
adjudication by its service centers within the 90-day
regulatory timeframe.74 Fortunately, EAD issuance
equipment has not yet been removed from the local
offices as a fail-safe.75 The district office should be
consulted, therefore, for warranting circumstances to
have the EAD issued locally.
Employment-based AOS applicants are eligible
for employment authorization without prejudice to
their underlying nonimmigrant status. H-1 or L-1
nonimmigrant workers or their dependents who ob-
tain an EAD based on the AOS application, but who
do not obtain employment with the EAD, are not in
violation of their nonimmigrant status.76 Under the
concept known as “dual intent,” USCIS may con-
tinue to approve both H-1 and L-1 petitions despite
the fact an application for labor certification or an
immigrant visa is pending or has been approved.77
Advance Parole and Travel
Most AOS applicants should not leave the United
States without first obtaining advance parole.78
USCIS regulations deem an application abandoned
if an applicant leaves the United States while his or
her adjustment application is pending without first
obtaining advance parole.79 Applicants for AOS who
have been unlawfully present in the United States
for 180 days or more at the time of filing an adjust-
ment application (for example, immediate relatives
or those filing pursuant to INA §245(i)) should not
72
USCIS Liaison Meeting Minutes, Sept. 26, 2006, supra
note 70.
73
USCIS Memorandum, “Elimination of Form I-688B, Em-
ployment Authorization Card” (Aug. 18, 2006), published on
AILA InfoNet at Doc. No. 06090560 (posted Sept. 5, 2006).
74
USCIS Liaison Meeting Minutes, Sept. 26, 2006, supra
note 70.
75
Id.
76
INS Memorandum, “AFM Update: Revision of March 14
2000 Dual Intent Memorandum” (May 16, 2000), reprinted
in 77 Interpreter Releases 672 (May 22, 2000), published on
AILA InfoNet at Doc. No. 00052603 (posted May 26, 2000)
(hereinafter INS Memorandum, May 16, 2000).
77
8 CFR §§214.2(h)(16), (l)(16), amended by 64 Fed. Reg.
29208, 29211 (June 1, 1999).
78
See INA §§211 and 212(a)(7)(A).
79
8 CFR §§245.2(a)(4)(ii), 1245.2(a)(4)(ii).
272 NAVIGATING THE FUNDAMENTALS OF IMMIGRATION LAW (2008–09 ED.)
seek permission to travel abroad while their applica-
tion is pending to avoid the three– and ten-year bars
to immigration.80
An employment-based AOS applicant need not
apply for advance parole for travel, however, if he is
maintaining H or L status and has or can obtain a
visa for re-entry. (This includes family members in
H-4 or L-2 status).81 Note that if an AOS applicant
applies for an EAD and engages in “open market”
employment, the H or L status is then violated and
can no longer provide a basis for work or travel.
Family members are dependent on the principal ap-
plicant for their H-4 or L-2 status. So if the principal
applicant uses an EAD outside the bounds of the H
or L approval, the dependent family members are no
longer in valid H-4 or L-2 status either.
Whether travel utilizing an advance parole nulli-
fies H or L status is not clear, but a legacy Immigra-
tion and Naturalization Service (INS) Headquarters
memorandum from Paul W. Virtue on the subject
supports the position that it does not.82
OTHER CONSIDERATIONS
While any point of eligibility or documentation
may become problematic in a particular case, certain
situations often arise in the course of AOS that
should be specifically noted.
Benefits of INA §245(k) for
Employment-Based AOS Applicants
Employment-based AOS applicants in either the
first, second, or third preference categories and spe-
cial immigrants defined at INA §101(a)(27)(C) may
adjust status notwithstanding any ineligibility under
§245(c)(2), (c)(7), and (c)(8) resulting from accept-
ing unauthorized employment, failing to maintain
lawful nonimmigrant status, or otherwise violating
the terms of a nonimmigrant visa, under the follow-
ing conditions:
(1) on the date of filing AOS the applicant is present
in the United States pursuant to a lawful admis-
sion;
(2) subsequent to such lawful admission, the appli-
cant has not, for an aggregate period exceeding
180 days—
80
See INA §§212(a)(9)(B)(i)(I), (II).
81
8 CFR §§245.2(a)(4)(ii)(C), 1245.2(a)(4)(ii)(C); 72 Fed.
Reg. 61791 (Nov. 1, 2007).
82
INS Memorandum, May 16, 2000, supra note 76.
(a) failed to maintain, continuously, a lawful
status;
(b) engaged in unauthorized employment; or
(c) otherwise violated the terms and conditions
of admission.
In other words, employment-based AOS appli-
cants and special immigrants as defined remain eli-
gible for AOS even if, since their last lawful entry to
the United States, they have accumulated up to 180
days lapse of lawful status, unauthorized employ-
ment, or other violation of the terms of admission.
However, there is a serious question about
whether §245(k) continues to protect an AOS appli-
cant who continues to incur status violations after
the filing date.83
Flexibility for Employment-Based AOS
Applicants Under AC21—“H-1B Cap
Exemption” and “Portability”
The American Competitiveness in the 21st Cen-
tury Act (AC21)84 improved the flexibility of the
AOS process and increased its attractiveness over
CP in a number of ways:
ƒ AC21 §106(a) created an exemption from the
six-year cap on H-1B eligibility for individuals
who have filed either a labor certification appli-
cation or an employment-based I-140 at least 365
days prior to the filing of an application to extend
their H status beyond the statutory six-year limit.
AC21 §106(b) directs the attorney general to “ex-
tend the stay of an alien who qualifies for an ex-
emption under subsection (a) in one-year incre-
ments until such time as a final decision is made
on the alien’s lawful permanent residence.”
ƒ AC21 §104(c) also allows individuals who are
beneficiaries of an employment-based first, sec-
ond, or third preference petition, i.e., Form I-140,
83
See USCIS Liaison Meeting Minutes, Sept. 26, 2006, supra
note 70; USCIS Liaison Meeting Minutes (Oct. 28, 2004),
published on AILA InfoNet at Doc. No. 05012163 (posted
Jan. 21, 2005); Letter from H. R. Klasko “INS General Coun-
sel List of Resolved Issues” (Dec. 10, 1999), published on
AILA InfoNet at Doc. No. 99122271 (posted Dec. 22, 1999).
See also A. Paparelli and J. Valdez, “Never Say i (Unless You
Must): Employment-based Options for Adjustment of Status
that Avoid INA §245(i),” available at
www.entertheusa.com/publications/never_say_i.pdf.
84
The American Competitiveness in the 21st Century Act
(AC21), Pub. L. No. 106-313, 114 Stat. 1251 (relevant por-
tions codified at INA §§204(j) and 212(a)(5)(A)(iv)).
ADJUSTMENT OF STATUS FOR BEGINNING PRACTITIONERS
a three-year extension beyond the six-year limit
where the individual could have filed for an AOS
application but for visa unavailability. The Ser-
vice has indicated in a memorandum that despite
the name of this statutory section, “One-Time
Protection Under Per Country Ceiling,” more
than one extension may be granted.85
ƒ AC21 §106(c) amended INA §204 to permit an
individual with an approved employer-sponsored
I-140 petition whose AOS application has been
pending for 180 days or more to change jobs
without jeopardizing the validity of the underly-
ing approved I-140 filed by the previous em-
ployer, “if the new job is in the same or a similar
occupational classification as the job for which
the petition was filed.”86
On June 19, 2001, legacy INS issued initial guid-
ance to its service center directors concerning im-
plementation of AC21 provisions.87 With respect to
AOS applications, the guidance states that legacy
INS/USCIS will not deny an AOS application due to
the applicant having changed employers if the fol-
lowing criteria are met:
ƒ The new job is in the same or a similar occupa-
tional classification;
ƒ The applicant notifies legacy INS/USCIS by let-
ter of his or her change of intent to work for the
original employer; and
85
W. Yates, “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 of 2000 (AC21) (Public Law
106-313)” (May 12, 2005), published on AILA InfoNet at
Doc. No. 05051810 (posted May 18, 2005). According to
this guidance, extensions requested under the “one-time pro-
tection” may be for a period up to three-years and may be for
more than one extension.
86
See INA §§204(j); 212(a)(5)(A)(iv) (emphasis supplied).
No offer of employment is required for EB-1, I-140 petitions
for aliens of extraordinary ability; applicants in this category
already have the flexibility to change jobs that AC21 now
gives to applicants in other employment-based categories, in
more limited terms, once their adjustment applications have
been pending for 180 days or more.
87
See M. Pearson, Office of the Executive Assoc. Comm’r,
“Initial Guidance for Processing H-1B Petitions as Affected
by the ‘American Competitiveness in the Twenty-First Cen-
tury Act’ (Pub. L. No. 106-313) and Related Legislation
(Pub. L. No. 106-311 and Pub. L. No. 106-396)” (June 19,
2001), published on AILA InfoNet at Doc. No. 01062031
(posted June 20, 2001).
273
ƒ The new employer submits a letter verifying the
offer of employment, job title, job description,
and salary.
Given the option of concurrent filing of the I-140
immigrant petition and the AOS application, what
about portability where the I-140 is still pending but
not yet adjudicated? In further, interim guidance is-
sued on December 27, 2005, USCIS instructed its
service centers and regional directors to approve the
pending I-140 petition if approvable generally,
based on a preponderance of the evidence and when
there is no post-filing issue such as ability to pay.88
In the same guidance, USCIS addressed other im-
plementing concerns and enunciated in particular
various factors to help determine whether the new,
ported employment constitutes “same or similar” to
permit favorable AOS adjudication, including:
ƒ Job duties in the underlying labor certification
application and initial I-140 petition, compared
with those of the new employment;
ƒ Dictionary of Occupational Titles (DOT) and/or
Standard Occupational Classification (SOC)
codes applicable to the I-140 job, compared with
the same for the new employment position; and
ƒ Previous wage, compared with the new wage, to
see whether there is a substantial discrepancy.89
No implementing regulations have been issued
by legacy INS/USCIS to date.
Practice Pointer: USCIS service centers may re-
fer adjustment applications involving job changes
under AC21 to local USCIS offices for interviews.
In addition, service centers may ask in a request for
evidence for documentation establishing the legiti-
macy of the new employer and the job offer, as well
as financial documentation to assure that through the
new, ported job the AOS applicant will not become
a public charge upon adjustment.90
Additionally, if the sponsoring employer with-
draws the I-140 before the I-485 has been pending
180 days, or if the I-140 is denied or revoked at any
time (except when it is revoked based on a with-
88
M. Aytes, “Interim Guidance for Processing I-140 Em-
ployment-based Immigrant Petitions and I-485 and H-1B
Petitions Affected by the ‘American Competitiveness in the
Twenty-First Century Act of 2000’ (AC21) (Pub. L. No.
106-313)” (Dec. 27, 2005), published on AILA InfoNet at
Doc. No. 06092763 (posted Sept. 27, 2006).
89
Id.
90
Id.
274 NAVIGATING THE FUNDAMENTALS OF IMMIGRATION LAW (2008–09 ED.)
drawal that was submitted after the I-485 has been
pending 180 days), USCIS considers the underlying
I-140 no longer valid for portability purposes.91
Overall, clients should be carefully advised regard-
ing the use of portability and the advisability of
maintaining valid nonimmigrant status as a back-up
to portability.
Age-Out Cases
AOS applicants whose status is derivative of their
parents and who turn 21 years of age prior to the ad-
judication of their application lose eligibility to adjust
their status based upon the principal’s original appli-
cation. USCIS service centers and district offices
generally will expedite an AOS application involving
a child who is aging-out if the problem is clearly
identified and brought to their attention.
The Child Status Protection Act (CSPA) provides
relief from age-outs in certain situations.92 This law
took effect on August 6, 2002, and is not retroac-
tive.93 Detailed guidance regarding who is protected
by CSPA and how it is applied is provided in two
legacy INS memoranda, as well as a recent USCIS
clarification.94 If CSPA applies, an expedited request
will not normally be necessary.
Affidavit of Support
A correctly completed and documented I-864 is
required in all family-based and certain employ-
ment-based cases as a filing requirement.95 Inability
to fulfill the I-864 requirements will result in denial
91
Id.
92
See Child Status Protection Act of 2002 (CSPA), Pub. L.
No. 107-208, 116 Stat. 927 (Aug. 6, 2002), published on
AILA InfoNet at Doc. No. 02080740 (posted Aug. 7, 2002).
93
See §8 of CSPA.
94
See J. Williams, “The Child Status Protection Act” (Sept.
20, 2002), published on AILA InfoNet at Doc. No. 02092732
(posted Sept. 27, 2002), and “The Child Status Protection
Act—Memorandum Number 2” (Feb. 14, 2003), published
on AILA InfoNet at Doc. No. 03031040 (posted Mar. 10,
2003); M. Aytes, “Clarification of Aging-Out Provisions as
They Affect Preference Relatives and Immediate Family
Members Under the Child Status Protection Act Section 6
and Form I-539 Adjudication for V Status” (June 14, 2006),
published on AILA InfoNet at Doc. No. 06062870 (posted
June 28, 2006); see also M. A. Kenney, “2006 Update on the
Child Status Protection Act: New Administrative Interpreta-
tions” (Sept. 26, 2006), published on AILA InfoNet at Doc.
No. 06090662 (posted Sept. 26, 2006) (AILF Practice Advi-
sory).
95
See generally 8 CFR §213a.
of the case. Therefore, the I-864 requirements must
be fully understood and complied with before a case
is filed.
On June 21, 2006, USCIS published a final rule
stipulating the affidavit of support requirements.96
Other than revising the standard I-864 and I-864A
for sponsors, USCIS introduced a new I-864EZ for
certain petitioning sponsors relying on their own
employment to meet the requirements, as well as a
new I-864W for immigrants exempt from filing.
Standardizing policy nationally, USCIS now re-
quires that the affidavit of support must be filed ini-
tially with the AOS application and that it must be
sufficient both at the time of filing and at the time
the AOS application is adjudicated.97 USCIS gener-
ally infers that the affidavit of support is sufficient at
adjudication if it was sufficient at time of filing.98
NSEERS
In 2002, legacy INS established the National Se-
curity Entry-Exit Registration System (NSEERS)
which required individuals from designated coun-
tries and those who fit certain profiles warranting
monitoring in the interest of national security to pre-
sent themselves to legacy INS for registration.99
NSEERS governs registration upon arrival and de-
parture from the United States.100 Regulations also
required individuals to register annually with local
offices; these have since been suspended.101 When
evaluating an applicant for AOS it is important to
consider whether the individual was subject to
NSEERS requirements at any time. Failure to com-
ply with such requirements may have negative, but
not necessarily insurmountable, consequences for
adjusting.102
96
71 Fed. Reg. 35732 (June 21, 2006), published on AILA
InfoNet at Doc. No. 06062160 (posted June 21, 2006).
97
See M. Aytes, “Consolidation of Policy Regarding USCIS
Form I-864, Affidavit of Support (AFM Update AD06-20)”
(June 27, 2006), published on AILA InfoNet at Doc. No.
06063013 (posted June 30, 2006).
98
See id. regarding exception to the inference after one year
has passed and a specific reason exists raising a question
whether sufficiency continues.
99
8 CFR §264.1.
100
8 CFR §264.1(f)(8).
101
68 Fed. Reg. 67578 (Dec. 2, 2003).
102
8 CFR §264.1(f)(8).
ADJUSTMENT OF STATUS FOR BEGINNING PRACTITIONERS
SPECIAL CIRCUMSTANCES IN
WHICH AOS MAY BE REQUESTED
Note that the regulations provide for a number of
means to adjust status other than through the prefer-
ence (family– and employment-based) categories.103
A few of the major options are discussed here. How-
ever, this is not an all-inclusive list, and the particu-
lar situation of any potential applicant should be
thoroughly researched.
NACARA
In November 1997, President Clinton signed into
law the Nicaraguan Adjustment and Central Ameri-
can Relief Act (NACARA).104 Under NACARA,
there are two distinct forms of relief—§§202 and
203. Section 202 of NACARA allows eligible Nica-
raguans and Cubans to apply for AOS to that of
LPR. Section 203 of NACARA allows eligible Sal-
vadorans, Guatemalans, and nationals of the former
Soviet bloc to apply for relief from deportation.
The NACARA application (Form I-881) is de-
tailed, lengthy, and requires thorough preparation.
The application should be supported by exhibits to
show the required period of continuous physical
presence in the United States (depending on the
ground of eligibility), evidence of the applicant’s
good moral character during that time, and that ei-
ther the applicant or the applicant’s U.S. citizen or
LPR spouse, child, or parent will experience ex-
treme hardship if the applicant is forced to return to
his or her native country. American Baptist
Churches (ABC) class members have a limited re-
buttable presumption of extreme hardship.105
Asylees and Refugees
If an alien has held refugee or asylee status for at
least one year, he or she may be eligible to adjust
103
See generally 8 CFR Parts 245, 1245.
104
See the Nicaraguan Adjustment and Central American
Relief Act (NACARA), enacted as Title II of the District of
Columbia Appropriations Act for fiscal year 1998, Pub. L.
No. 105-100, 111 Stat. 2160 (Nov. 19, 1997).
105
American Baptist Churches (ABC) v. Thornburgh, 760 F.
Supp 796 (N.D. Cal. 1991). ABC class members generally
share several identifiable factors that lead to a finding of
extreme hardship. See also INS Memorandum, J. Langlois,
Director, Asylum Division, “Implementation of Amendment
to [LIFE Act] regarding Applicability of INA Section
241(a)(5) (reinstatement) to NACARA 203 Beneficiaries”
(Feb. 22, 2001), published on AILA InfoNet at Doc. No.
01022702 (posted Feb. 27, 2001).
275
status to that of an LPR. Derivative asylees and
refugees can also apply to adjust status.
An asylee applicant must demonstrate that he or
she is not firmly resettled in any foreign country and
must continue to meet the definition of a refugee
pursuant to INA §101(a)(42)(A) or is a spouse or
child of an asylee. Upon the approval of an applica-
tion for AOS, permanent residence is back-dated one
year.106
The granting of AOS for a refugee results in
permanent residence being granted as of the date of
arrival in the United States.107 An AOS application
is made at least one year after the foreign national
has been in the United States in refugee status.
A separate application packet must be prepared
for principal applicants and for each spouse or child
who derived asylee or refugee status from the prin-
cipal. Note that there is no filing fee for Form I-485
for refugee applicants.
Battered Spouse or Child
Under the Violence Against Women Act of 1994
(VAWA),108 spouses and children of U.S. citizens or
LPRs may self-petition to obtain permanent resi-
dence. VAWA allows certain battered immigrants to
file for immigration relief without the abuser’s
knowledge or assistance in order to seek safety and
independence from the abuser.
The VAWA provisions are codified at INA
§204(a) and 8 CFR §204. Basically, an alien must
qualify in one of three categories:
ƒ Spouse—A spouse may self-petition if he or she
is a battered spouse married to a U.S. citizen or
LPR and meets other eligibility requirements.109
Unmarried children under the age of 21 (who re-
side in the United States and have not filed their
own self-petition) may be included as derivative
beneficiaries.110
ƒ Parent—An alien may also self-petition as the
parent of a child who has been abused by his or
her U.S. citizen or LPR spouse. The unmarried
children (under age 21) including those who may
106
8 CFR §§209.2(f), 1209.2(f).
107
INA §209(a)(2).
108
The Violence Against Women Act of 1994 (VAWA),
Pub. L. No. 103-322, 108 Stat. 1902–1955 (codified as 8
USC §§1151, 1154, 1186a note, 1254, 2245) (VAWA).
109
8 CFR §204.2(c)(1).
110
8 CFR §204.2(c)(4).
276 NAVIGATING THE FUNDAMENTALS OF IMMIGRATION LAW (2008–09 ED.)
not have been abused may be included on the pe-
tition as derivative beneficiaries if they reside in
the United States and have not filed their own
self-petition.
ƒ Child—A battered child (under 21 and unmar-
ried) who has been abused by his or her U.S. citi-
zen or LPR parent, may also self-petition. How-
ever, the alien filing as a child cannot include his
or her child or children on the self-petition as a
derivative beneficiary.
A practitioner should be aware that a number of
improvements have been made to the Violence
Against Women Act under both the “Violence
Against Women and Department of Justice Reau-
thorization Act of 2005” and the “Battered Immi-
grant Women Protection Act of 2000.” Both self-
petitioners and applicants for cancellation of re-
moval and suspension of deportation need to refer to
the updates in this section of law prior to proceeding
with such a filing.111
Practice Pointer: The self-petitioner who is the
beneficiary of a Form I-130 petition filed by the abu-
sive spouse or parent can transfer the priority date of
the I-130 to the Form I-360 self-petition.
Note also that the self-petitioning provisions for
victims of domestic violence apply equally to vic-
tims of either sex.
Diversity Lottery
The Diversity Lottery (DV) program was enacted
to provide a more diverse immigrant pool by creat-
ing a means of immigration for those foreign nation-
als without employment sponsorship or family ties
in the United States. It is available to people who
come from countries with low admission rates. Un-
der the DV program, 55,000 annual immigrant visas
are allotted to qualified foreign nationals.112 Spouses
and children shall receive an immigrant visa if ac-
companying or following-to-join the spouse or par-
111
Violence Against Women and Department of Justice Re-
authorization Act of 2005, Pub. L. No. 109-162, 119 Stat.
2960, and Victims of Trafficking and Violence Protection
Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464; see AILF
Legal Action Center Practice Advisory, “Applying for Ad-
justment of Status After Re-entering the United States With-
out Being Admitted: I-212s, 245(i) and VAWA 2005” (June
5, 2006, amended Oct. 18, 2006), published on AILA In-
foNet at Doc. No. 06060674 (posted Oct. 19, 2006) (herein-
after AILF Practice Advisory, Oct. 18, 2006).
112
INA §203(c).
ent.113 DOS holds the lottery every year and ran-
domly selects approximately 110,000 applicants
from qualified entries. Because more people will be
notified of selection than will actually be granted
visas, applicants selected for the DV program must
act quickly. Once the 55,000 cap is reached or the
fiscal year ends, the DV program for that year is
closed.
Applicants who are selected may make applica-
tion for a DV-1 immigrant visa at a U.S. consular
office abroad or if in the United States apply for
AOS to LPR by filing Form I-485, but only during
the fiscal year in which they were selected. Because
a visa number is not allocated until AOS processing
is completed, consular processing may offer the di-
versity lottery applicant a greater chance of receiv-
ing an immigrant visa than AOS.
DOS’s website at www.travel.state.gov provides
detailed information on registering for the lottery
and provides answers to frequently asked questions.
LIFE Act
The Legal Immigration and Family Equity Act of
2000 (LIFE Act)114 extended INA §245(i) by replac-
ing the old eligibility cutoff date of January 14,
1998, with a new date of April 30, 2001. This al-
lowed more persons eligible for permanent residence
based on a family relationship or job offer to be-
come permanent residents without leaving the coun-
try. Most people who entered the United States
without inspection, overstayed an admission, acted
in violation of the terms of their status, worked
without authorization, entered as a crewman, or
were admitted in transit without a visa, are consid-
ered out of status and would be unable to adjust
status to LPR without §245(i).
Eligible aliens had until April 30, 2001, to file an
immigrant visa petition (an I-130, I-140, or I-360)
with USCIS or a labor certification with DOL in
order to take advantage of this provision. Note that
the LIFE Act added a new “physical presence” re-
quirement for people who filed a petition or labor
certification after January 14, 1998, but on or before
April 30, 2001. Specifically, aliens were required to
prove that they were in the United States on Decem-
ber 21, 2000, (the date this measure became law).
Note also that an applicant is only able to use the
113
INA §203(d).
114
Legal Immigration and Family Equity Act of 2000 (LIFE
Act), Pub. L. No. 106-553, 114 Stat. 2762.
ADJUSTMENT OF STATUS FOR BEGINNING PRACTITIONERS
benefits of a filing under §245(i) once. USCIS had
taken the position that if the I-485 is denied, the
alien then loses the §245(i) benefit from the immi-
grant petition or labor certification.115 But thankfully
USCIS softened this harsh interpretation, to the op-
posite effect that the §245(i) benefit is used once an
I-485 is approved and the applicant has adjusted
status.116 The grandfathering eligibility travels with
the applicant.
A penalty fee of $1,000 is paid with the filing of
Form I-485 Supplement A, which is submitted with
the standard Form I-485 AOS application. This fee
is imposed along with any other USCIS filing fees.
Practice Pointer: Section 245(i) allowed only
people who illegally entered the United States or
were ineligible for AOS under §245(c) to apply for
AOS in the United States if they were otherwise eli-
gible. The filing of a petition for an alien relative or
alien labor certification does not confer on an in-
tending immigrant, who is otherwise in the United
States illegally, protection from removal, eligibility
for employment authorization, or other benefits un-
der the Act.
Note that special considerations apply to those
who have re-entered (or attempt to re-enter) the
United States after having been unlawfully present
in the United States for more than one year or or-
dered removed, making them inadmissible under
INA §212(a)(9)(C). They may or may not be able to
retain benefits under §245(i), depending upon the
jurisdiction.117 As courts are unsettled on this par-
ticular issue, thorough research is necessary on the
latest developments to advise clients accordingly.
115
See C. Liao and B. Wolfsdorf, “How the USCIS Stole the
Holidays—A Practice Advisory on 245(i) Grandfathering,”
published on AILA InfoNet at Doc. No. 03122917 (posted
Dec. 29, 2003) (“If an applicant has filed an I-485 Supple-
ment A and paid the $1,000 filing fee and if the underlying I-
485 adjustment is properly denied, the alien cannot file under
245(i) again based on that grandfathering document unless
the denial was in error”).
116
See W. Yates, “Clarification of Certain Eligibility Re-
quirements Pertaining to an Application to Adjust Status
under Section 245(i) of the Immigration and Nationality
Act” (Mar. 9, 2005), published on AILA InfoNet at Doc. No.
05031468 (posted Mar. 14, 2005).
117
See AILF Practice Advisory, Oct. 18, 2006, supra note
111.
277
Registry
Registry allows persons who entered the United
States prior to January 1, 1972, to adjust their status
to LPR. The registry provision is found at INA
§249. The alien must establish that he or she is not
inadmissible pursuant to INA §212(a) as a criminal
procurer, other “immoral person,” subversive, viola-
tor of the narcotics laws, or smuggler of aliens. In
addition, a registry applicant must establish continu-
ous residence in the United States since his or her
initial entry, that he or she is a person of good moral
character, that he or she is not ineligible for citizen-
ship, and is not deportable under INA §237(a)(4)(B).
Application for registry is made on Form I-485
and should be accompanied with sufficient proof to
establish continuous residence in the United States
prior to January 1, 1972. A medical exam is not re-
quired for registry applicants.
AOS BEFORE AN
IMMIGRATION JUDGE
An alien who is placed in removal proceedings
(i.e., a Notice to Appear (NTA) is filed by USCIS
with the immigration court) becomes subject to the
jurisdiction of the immigration court.118 In this situa-
tion, the immigration judge has the authority to adju-
dicate and approve the alien’s application for AOS.119
The alien must meet the eligibility requirements, in-
cluding having an I-130 or I-140 immigrant visa peti-
tion previously approved by USCIS.
RESCISSION
Under the provisions of INA §246, the status of a
person adjusted under INA §245 or §249 shall be re-
scinded if it appears that the individual was in fact not
eligible for AOS. USCIS must seek rescission within
five years.120 All family members who derived status
from the person rescinded also lose their status.
118
Whether or when an NTA will be issued upon the denial
of an AOS application depends on various factors. See M.
Aytes, “Disposition of Cases Involving Removable Aliens”
(July 11, 2006), published on AILA InfoNet at Doc. No.
06090871 (posted Sept. 8, 2006).
119
See, e.g., INA §240A(b), 8 CFR §1245.2(a)(1); but see 71
Fed. Reg. 27585 (granting USCIS jurisdiction over AOS
applications generally of arriving aliens in removal proceed-
ings); USCIS Memorandum, Jan. 17, 2007; and AILF Prac-
tice Advisory, Mar. 8, 2007, supra note 50.
120
See, e.g., Bamidele v. INS, 99 F.3d 557 (3d Cir. 1996)
(five-year statute of limitations proscribing untimely rescis-
continued
278 NAVIGATING THE FUNDAMENTALS OF IMMIGRATION LAW (2008–09 ED.)

Rescission requires only a showing that the alien

was ineligible for adjustment at the time it was granted.
There is no affirmative requirement of a showing of
fraud or material misrepresentation. Once status is re-
scinded, the alien is placed in the status he or she held
prior to the adjustment. This may mean that the alien
will be placed in removal proceedings if the nonimmi-
grant status held prior to adjustment has expired. Re-
scission is not required prior to the commencement of
removal proceedings under INA §240. A final order of
removal will rescind an AOS.121

sion of LPR status barred INS from deporting alien for ob-
taining AOS through sham marriage). Note that USCIS sim-
ply may initiate removal proceedings against the alien with-
out first going through formal rescission procedures and the
“order of removal issued by an immigration judge shall be
sufficient to rescind the alien’s status.” 8 USC §1256(a).
121
INA §246(a).
Copyright © 2008, American Immigration Lawyers Association. Reprinted, with permission, from Navigating the Fundamen-
tals of Immigration Law 279 (2008–09 ed.).
THE FUNDAMENTALS OF LAWYERING AT CONSULAR POSTS
updated by Jan M. Pederson*
SCOPE OF ARTICLE
The practice of immigration law to an unprece-
dented extent involves effectively representing non-
immigrant and immigrant visa applicants before
U.S. embassies and consulates. This article reviews
the basic procedures for applying for nonimmigrant
(NIV) and immigrant (IV) visas at U.S. consular
posts abroad. It focuses on the statutory and regula-
tory framework and provides practice tips for effec-
tive representation in the context of consular abso-
lutism in the post-9/11 world.
In addition to the relevant sections of the Immi-
gration and Nationality Act (INA), the regulations of
the U.S. Citizenship and Immigration Services
(USCIS) and the Department of State (DOS), the
USCIS Adjudicators Field Manual (AFM) and DOS
Foreign Affairs Manual (FAM), one must be famil-
iar with the most recent cables from the DOS Visa
Office and the specific policies and procedures of
the consular post where application will be made.
SOURCES OF AUTHORITY
Statutory References
ƒ INA of 1952, Pub. L. No. 82-414, 66 Stat. 163
(codified as amended at 8 USC §§1101–1524).
Updated from Navigating the Fundamentals of Immigration
Law 285 (2007–08 ed.). Copyright © 2007, American Immi-
gration Lawyers Association (AILA), available from AILA
Publications, 1-800-982-2839, www.ailapubs.org.
Articles do not necessarily reflect the views of the American
Immigration Lawyers Association.
*
Jan M. Pederson is the principal at Pederson Immigration
Law Group, PC. Recognized by The Washington Post as one
of the “seven leading lawyers” in Washington, D.C. Ms. Pe-
derson has been dedicated to the practice of immigration and
nationality law for over 25 years. She served as chair of the
Washington, D.C. Chapter of the AILA and as an elected di-
rector of the national Board of Governors of AILA for 18
years. She has been an editor of the annual AILA Visa Proc-
essing Guide and Consular Post Handbook: Process and
Procedure at U.S. Consulates and Embassies since inception
and is a frequent author and speaker on the topic of consular
processing.
The author wishes to thank Jessica Marks, Esquire, Associ-
ate with Pederson Immigration Law Group for her invaluable
input, research and editing of this article.
279
ƒ Title II, Chapter 1—Selection System, INA
§§201–210A.
ƒ Title II, Chapter 2—Qualifications for Admission
of Aliens, INA §§211–218.
ƒ Title II, Chapter 3—Issuance of Entry Docu-
ments, INA §§221–224.
ƒ Title II, Chapter 4—Inspection; Apprehension;
Examination; Exclusion; and Removal, INA
§§231–235.
ƒ INA §245 (Adjustment of Status).
ƒ INA §248 (Change of Nonimmigrant Status).
Regulatory References
ƒ 8 Code of Federal Regulations (CFR) §248
(USCIS change of nonimmigrant status).
ƒ 8 CFR §245 (USCIS adjustment of status).
ƒ 22 CFR §§40–42 (DOS)
Instructions/Interpretive Materials
Dept. of State, Foreign Affairs Manual (FAM), 9
FAM Notes to 22 CFR §§40.0 et seq., Appendices B
(Documents), C (Reciprocity), and E (Clearance
Procedures and Visa Issuing Posts), containing
Country and Territory Index. These provisions gov-
ern DOS procedures pertaining to the issuance of
visas and serve to interpret those sections of the INA
involving visa issuance. The FAM can be accessed
online at http://foia.state.gov/regs/search.asp. Other
sources of information include:
ƒ Consular post websites—Websites of consular
posts can be accessed at www.travel.state.gov/
travel/tips/embassies/embassies_1214.html. Al-
ways check the consular post website for impor-
tant substantive and procedural details before
commencing representation of a client and/or
when communicating with the post.
ƒ Chief consular officers—A list of the chief con-
sular officer at each post can be found at
http://foia.state.gov/mms/koh/keyoffcity.asp.
ƒ DOS websites—www.travel.state.gov and
www.state.gov, are useful sources of information.
The visa reciprocity tables and information relat-
ing to the availability of civil documents listed by
country are available online at www.travel.state.
gov/visa/frvi/fees/fees_1341.html.
280 NAVIGATING THE FUNDAMENTALS OF IMMIGRATION LAW (2008–09 ED.)
ƒ The AILA Visa Processing Guide and Consular
Posts Handbook: Process and Procedure at U.S.
Consulates and Embassies (2007–08 ed.)—This
annual AILA publication provides post-specific
detailed real time information on personnel, con-
tact information, processes, procedures, as well
as practice tips from AILA attorney authors with
a wealth of consular experience. This publication
appears in AILALink, as well as in hard copy.
ƒ The Information Superhighway—AILA InfoNet,
www.aila.org, provides invaluable up-to-date in-
formation posted by the AILA National Office and
AILA members. Information includes DOS cables,
memos, and valuable minutes of meetings between
visa office officials and AILA. Members may make
inquiries of other members about practices at par-
ticular consular posts on the site.
ƒ Visa Bulletin—The Visa Bulletin, found at
DOS’s website at http://travel.state.gov/visa
/frvi/bulletin/bulletin_1360.html, is a monthly
DOS publication describing immigrant visa pref-
erences, the numerical system, and the world-
wide movement of priority dates within the pref-
erence categories. The Visa Bulletin contains im-
portant information regarding DOS policies,
regulations, and matters affecting immigrant visa
issuance. It also provides diversity visa lottery
program information.
ƒ Benders Immigration Bulletin—(BIB). Avail-
able online at http://bibdaily.com and in hard
copy. The editors of BIB provide multiple up-
dates on a daily basis and have an excellent ar-
chived system.
ƒ Interpreter Releases—Interpreter Releases is a
weekly publication which reports and analyzes
current developments, cases, regulations, and
other matters involving immigration law and
agency procedures. It regularly reproduces the
latest cables from DOS and correspondence from
USCIS. Interpreter Releases can be accessed
online through www.westlaw.com, which is a
subscription service.
ƒ Immigration Briefings—A publication providing
in depth analysis of current immigration issues.
This publication is available from Westlaw
online.
ƒ Immigration Bulletin—Siskind’s Immigration
Bulletin is a weekly publication available online
at www.visalaw.com/bulletin.html, which covers
U.S. immigration news, laws, and procedures.
ƒ Immigration Law and Procedure (Revised Edi-
tion)—A multi-volume treatise, published by
Matthew Bender and Company, authored by C.
Gordon, S. Mailman, and S. Yale-Loehr, cover-
ing all aspects of U.S. immigration law and pro-
cedure, including extensive appendices.
ƒ Shusterman—Immigration website with a
wealth of practical information on immigrating to
the United States—www.shusterman.com.
IMMIGRANT VISAS
Consular Processing vs. Adjustment of Status
Permanent residence (green card) status is con-
ferred either through issuance of an IV by a U.S.
consular post abroad or through approval of an ad-
justment of status (AOS) application (Form I-485)
by USCIS in the United States. For those present in
the United States, both alternatives may be avail-
able. AOS through USCIS permits an applicant
whose immigration case is denied the right to chal-
lenge the denial in administrative tribunals (immi-
gration court and the Board of Immigration Appeals
(BIA)) and in federal courts. Denial of an IV at a
consular post based on questions of fact are essen-
tially no reviewable, although questions of law are
reviewable through the DOS advisory opinion proc-
ess, which is user-friendly and effective, if proper
procedure is followed.
IV applicants must be concerned with the three-
and ten-year bars to admissibility based on prior
unlawful presence, which generally do not apply to
those eligible to adjust status in the United States.
While processing at a consular post abroad entails
the time and expense of traveling overseas, consular
processing often saves years of uncertainty and
anxiety while waiting for USCIS adjudication of an
I-485. If there is no reason to believe a client is in-
admissible and counsel, after researching consular
post policies and procedures and after completing
due diligence, determines that IV processing will
proceed smoothly, consular processing may be cho-
sen because of time saving and the certainty of a
specific appointment date and time. The certainty
factor alone is worth the trip abroad. Inexperienced
practitioners should have an AILA mentor review a
consular processing case before proceeding. Be cer-
tain clients either have a valid visa to return to the
United States (e.g., E, H, or L), or an advance parole
travel document, if possible, as insurance against an
unforeseeable glitch at an IV consular interview,
such as a long security clearance delay.
THE FUNDAMENTALS OF LAWYERING AT CONSULAR POSTS
For too long, attorneys have been steeped in the
routine of AOS without considering the benefits of
consular processing and fail to advise clients of the
opportunity and benefits, which include rapid proc-
essing in most cases and the certainty which comes
with knowing the date, time and place of the IV in-
terview. The most important caveat is that counsel
knows the client’s entire visa history, background,
and prior representations on visa applications. Cli-
ents must be thoroughly prepared for the IV inter-
view, leaving no question unanswered. Clients are
often quizzed on their knowledge of job duties and
employment history in employment cases at IV in-
terviews. Review all documents filed on behalf of
the client with the client. Do not make the possibly
disastrous error of believing that a USCIS approved
I-130 or I-140 cannot be questioned by a consular
officer. They often are, so prepare your client for
intensive questioning on information contained in a
labor certification, I-140, or I-130 petition.
Practice Pointer: Interviews are often waived in
employment-based AOS cases by USCIS, while in-
terviews at U.S. consular posts cannot be waived. If
a client does not interview well and the attorney will
not be present at the IV interview, AOS may be cho-
sen, even though IV processing is frequently far
more rapid.1
Do not proceed with consular processing blindly.
Know your consular post before sending a client.
Research post personnel, policies, idiosyncrasies,
hot button issues, and attitude toward your client’s
type of case and attorney representation. AILA men-
tors are available to answer consular processing
questions and a listing can be found in the AILA
Membership Directory. It is prudent to use this re-
1
On April 1, 2006, U.S. Citizenship and Immigration Ser-
vices (USCIS) began to phase in bi-specialization in the fil-
ing and adjudication of employment-based I-485 Adjustment
of Status (AOS) applications and all such applications are
currently filed with either the Nebraska Service Center
(NSC) or with the Texas Service Center (TSC) for adjudica-
tion. Jurisdiction is determined in most cares by the place of
residence of the I-485 applicant. Check on www.uscis.gov to
determine proper place of filing. Adjudication times have
been greatly reduced at TSC while NSC adjudication times
have tended to be far longer than TSC. Family cases con-
tinue to follow a tortuous route through the Chicago lock box
to the Missouri Benefits Center (MBC) to district offices for
interviews, with widely divergent processing times, depend-
ing on the local office processing times and interview waiver
policies.
281
source for both post-specific and general consular
processing questions.
Eligibility
An alien is eligible for an immigrant visa if he or
she meets the substantive, quantitative, and qualita-
tive restrictions imposed by the INA.
Immigrant Visa Categories
An applicant for an immigrant visa must estab-
lish entitlement under one of the classifications
enumerated under the INA.2 An alien is eligible to
receive an immigrant visa if:
ƒ The alien is the beneficiary of an approved visa
petition granting family-based immediate relative
or preference classification, or employment-
based preference classification; or
ƒ The alien is a derivative family member (i.e.,
spouse or unmarried minor child under 21 of
preference aliens); or
ƒ The alien is entitled to special immigrant status
under INA §101(a)(27); or
ƒ The alien qualifies for a visa under special legisla-
tion, such as the Chinese Student Protection Act of
1992,3 Vietnam Amerasian program, or certain
provisions of the Immigration Act of 1990,4 such as
the diversity visa lottery provisions.
Numerical Control and Priority Dates
The allocation of immigrant visas is controlled
by a system of worldwide numerical limitations,
based upon foreign state chargeability and the
chronological order of the visa applicant’s priority
date.5 Aliens who are subject to the numerical limi-
tations of the INA may establish a priority date
through the proper filing of a labor certification ap-
plication or a preference visa petition, as required.6
The date of filing—assuming subsequent approval
of the underlying labor certification and/or prefer-
ence petition—establishes the priority date for visa
issuance. For some immigrant classifications and
nationalities, there is a long wait between the time a
priority date is established and a visa number is
2
22 CFR §40.1(h).
3
Chinese Student Protection Act of 1992, Pub. L. No. 102-
404, 106 Stat. 1969.
4
Immigration Act of 1990 (IMMACT90), Pub L. No. 101-
649, 104 Stat. 4978.
5
22 CFR §42.51(b).
6
22 CFR §42.53.
282 NAVIGATING THE FUNDAMENTALS OF IMMIGRATION LAW (2008–09 ED.)
available for immigration. Once established, it is
important to maintain the priority date, and counsel
is well advised to advise clients on actions that could
impact the priority date—such as marriage, divorce,
or change of employment.
The American Competitiveness in the 21st Cen-
tury Act (AC21)7 made significant changes in an
attempt to ameliorate the harm which immigrant
visa issuance delays and AOS delays caused to
American businesses and visa applicants by over-
subscribed per-country limits and USCIS backlogs.
First, §106 of AC21 recaptured employment-based
visa numbers which were available but not used in
fiscal years 1999 and 2000 and made them available
to the first three employment-based preferences
(EB-1, EB-2, EB-3), beginning FY 2001. Second,
sec. 104 of AC21 removed the per-country visa limit
in instances where the overall visa number usage for
employment-based visas are less than the numbers
available without regard to those per country limits.
This provision impacts primarily persons born in
China, India, and the Philippines. DOS’s visa office
is required to compare the visa usage to the available
numbers on a quarterly basis. If the total number of
available employment-based visas is greater than the
number of qualified applicants who may otherwise
be issued such visas (during the same period), the
per-country limitations on employment-based immi-
grant visas will be lifted for the remainder of that
quarter. This change has had a broad positive im-
pact, as there was no retrogression for employment-
based immigrant until the later part of 2004. Current
cut-off dates for the numerically limited visa catego-
ries are available at www.travel.state.gov/visa
/frvi/bulletin/bulletin_1360.html.
Practice Pointer: The employment-based second
preference (EB-2) category for India and China be-
came oversubscribed on October 1, 2005, and has
experienced serious retrogression in those categories
for those countries. The EB-3 and other worker
categories are oversubscribed worldwide and for-
ward movement of the cut-off date is slow. Without
legislative relief to increase the number of employ-
ment-based immigrant visas, the retrogression is
expected to continue and may in the future impact
the worldwide EB-2 category.8
7 2 C. Gordon, S. Mailman, and S. Yale-Loehr, Immigration
American Competitiveness in the 21st Century Act (AC21),
Pub. L. No. 106-313, 114 Stat.1251.
8 See 22 CFR §§42.31–33.
Current information on priority dates and trends in immi-
grant visa number usage can be found on the Department of
continued
The launching of the PERM labor certification
system on March 28, 2005,9 helped cause unprece-
dented retrogression in the employment-based cate-
gories—EB-1, EB-2, and EB-3. PERM processing
condensed a front-end delay of three years into a 45
to 60-day delay.
Some aliens are not subject to the numerical limi-
tations of the INA.10 These include:
ƒ “Qualifying relatives” of U.S. citizens;
ƒ Battered spouses/children;
ƒ Returning resident aliens;
ƒ Certain former U.S. citizens;
ƒ Qualifying ministers of religion and religious
workers; and
ƒ Certain widows and widowers of U.S. citizens.
Historically, special immigrants defined under
INA §101(a)(27) were not subject to numerical limi-
tations, but IMMACT90 subsumed most of these
categories under the employment-based fourth pref-
erence category, allocating approximately 10,000
visas per year to this category.11
Aliens who are subject to the numerical limita-
tions of the INA12 include:
ƒ Family-based preference immigrants;
ƒ Employment-based preference immigrants in-
cluding immigrant entrepreneurs/investors;
ƒ Diversity immigrants; and
ƒ Family unity immigrants.
In general, immigrants subject to numerical con-
trols are charged to the country quota for the foreign
state or dependent area of their birth,13 regardless of
citizenship. To prevent the separation of family
members born in different countries and for whom a
visa number may not be available, the INA provides
for “cross-chargeability,” a system in which a
State’s (DOS) website on the Visa Bulletin at
http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html.
9
69 Fed. Reg. 77325 (Dec. 27, 2004).
10
See 22 CFR §§42.21–23.
11
Law and Procedure §39.06 (rev. ed. 1996).
12
13
22 CFR §42.12(a).
THE FUNDAMENTALS OF LAWYERING AT CONSULAR POSTS
spouse or parent’s place of birth may be used to de-
termine country of chargeability.14
Admissibility—In addition to meeting the sub-
stantive categorical requirements for an immigrant
classification and having a visa number available, if
required, a visa applicant must otherwise be admis-
sible. The applicant must pass muster under §212(a)
of the INA, which delineates grounds of inadmissi-
bility. It is important to distinguish between grounds
of inadmissibility under §212(a) and removability
under INA §237, as there are distinctions. Once an
applicant has departed the United States to apply for
a visa at a U.S. consular post abroad, the grounds of
removability no longer apply.
Jurisdiction
In most instances, consular processing involves
returning to the country of the alien’s nationality or
last residence. There are circumstances, however,
when the alien is unable or unwilling to return and
may be able to process the immigrant visa in a third
country. Such circumstances may include fear of
persecution, lack of consular services, or other hard-
ship. DOS gives little weight to avoidance of costly
travel or loss of time as a justification for third coun-
try processing.
In instances where DOS has not designated
homeless IV processing posts for an affected nation-
ality, it is incumbent on counsel to locate a third
country processing post where the IV application
will be accepted.
Home Country Processing
22 CFR §42.61(a) provides that:
All aliens should apply in the country of resi-
dence, Unless otherwise directed by [DOS], an
alien applying for an immigrant visa shall make
application at the consular office having jurisdic-
tion over the alien’s place of residence; except
that, unless otherwise directed by [DOS], an alien
physically present in an area but having no resi-
dence therein may make application at the consu-
lar office having jurisdiction over that area if the
alien can establish that he or she will be able to
remain in the area for the period required to
process the application.
Finally, a consular post may, as a matter of dis-
cretion, or shall, at the direction of DOS, accept an
14
See Immigration and Nationality Act (INA) §§202(b)–(c);
22 CFR §42.12 (b), (e).
283
immigrant visa application from an alien who is nei-
ther a resident of nor physically present in, the area
designated for that office for such purpose. For the
purposes of this section, an alien physically present
in the United States shall be considered to be a resi-
dent of his or her country of citizenship or last resi-
dence prior to entry into the United States.15
Third Country Processing
Consular posts are not obligated to accept a visa
application from an alien who does not reside in the
consular district. The successful jurisdiction plea
normally requires a showing of hardship, extenuat-
ing circumstances, or humanitarian considerations
on behalf of an alien who is “homeless” or unable or
unwilling to return to his or her country of national-
ity.16 IV applicants who are citizens of countries
where no U.S. consular post exists, e.g., Afghani-
stan, Iran, Iraq, Libya, and Somalia, may apply at
consular posts designated by DOS.17 A list of current
IV homeless processing posts, which can be found at
9 FAM 42.61, Exhibit I, is as follows:
Homeless Nationalities Processing Posts
Afghanis Islamabad
Bosnians Zagreb
Eritreans Cairo (temporary; for im-
migrant visa and visa 92
applicants)
Nairobi (temporary; for
IV applicants and petition-
based NIV applicants)
Iranians Abu Dhabi
Ankara
Frankfurt (family-based
applicants only)
Vienna (limited)
Naples
Iraqis Amman
15
22 CFR §42.61(a).
16
See generally 9 U.S. Department of State, Foreign Affairs
Manual, (FAM) Notes to 22 CFR §42.61; see also 64 Inter-
preter Releases 1094 (Sept. 28, 1987) for an extensive discus-
sion of “orphan” immigrant visa applicants (those applicants
who cannot apply for an immigrant visa in their own country
or country of last residence either because no consular post
exists or because the applicant cannot return for other reasons).
17
69 Interpreter Releases 1373 (Oct. 26, 1992); 70 Inter-
preter Releases 789 (June 14, 1993).
284 NAVIGATING THE FUNDAMENTALS OF IMMIGRATION LAW (2008–09 ED.)
Homeless Nationalities Processing Posts
Casablanca
Libyans Tunis
Lebanese Abu Dhabi
Damascus
Nicosia
Somalis Nairobi
Dar Es Salaam
Djibouti
Sudanese Cairo (temporarily)
These designations are fluid and are intertwined
with global politics. Moreover, it is often possible to
obtain consent from other consular posts to process
such cases.
In recent years, DOS has encouraged consular
posts in home countries as well as in third countries
to streamline IV processing consistent with security
concerns by requesting all IV posts to accept em-
ployment-based immigrant visa cases for beneficiar-
ies whose last residence was in the post’s consular
district upon presentation of: (1) original I-797 ap-
proval notice for I-140; (2) copy of I-140 petition as
filed with supporting documents (no certified copy
necessary); and (3) copy of I-824 filing receipt.18
Many months of waiting solely for an approved em-
ployment-based petition to work its way from
USCIS to the DOS National Visa Center (NVC) to
the processing post can be saved. In practice, consu-
lar posts honor this to a greater or lesser extent de-
pending on the type of case and the perceived fraud
risk. An employment-based applicant who has
worked for Microsoft in H-1B status for five years
and has an approved permanent alien labor certifica-
tion and I-140 with Microsoft would be a likely can-
didate for IV processing with the above documents,
as are physicians and nurses.
DOS also authorized and encouraged posts to ac-
cept on a discretionary basis, employment-based
immigrant visa applications for persons not consid-
ered resident in that consular district for applicants
who are homeless or facing hardship as a result of
long processing delays at USCIS.19 Posts accepting
such discretionary cases may cease to do so at any
18
DOS Cable, 00 State 180792 (Sept. 2000), “Processing
I-140 Petitions for Applicants Residing in the U.S.,” pub-
lished on AILA InfoNet at Doc. No. 00092773 (posted Sept.
27, 2000).
19
Id.
time, and may stop accepting cases if the volume
becomes too high.
An applicant seeking to apply for an immigrant
visa in a third country also must qualify for admis-
sion to that country. Inquiry should be made as to
whether a visa to enter the third country may be ob-
tained before selecting a third country consular post.
USCIS will generally issue advance parole to appli-
cants applying in a third country to facilitate admis-
sion into a third country and permit return to the
United States if a processing delay is encountered.
The Office of International Affairs Headquarters, of
USCIS, must issue advance parole for applicants
who are or have been in proceedings.
Practice Pointer: If a third country consular post
willing to accept jurisdiction is located before the
petition (e.g., I-130, I-140, I-360) is filed, designate
the post on the petition and, annotate the first page
of the petition in red ink to indicate the post has ac-
cepted jurisdiction. Include with the petition evi-
dence a third country has accepted jurisdiction or the
NVC will not honor the designation. This will
eliminate later having to transfer a petition from one
consular post to another, which takes many months.
Contact the embassy or consulate of the third
country in the United States to determine their poli-
cies for issuance of visas to individuals of the cli-
ent’s nationality and for the purpose intended. Such
visas are more likely to be granted if the client can
show proof of the immigrant visa appointment
and/or “advance parole” documenting the client’s
right to return to the United States even if the immi-
grant visa is not granted.20
Third Country Processing of
Employment-Based Immigrant Visas
If searching for a consular forum for an I-140
beneficiary in the United States who is not consid-
ered resident in that consular district, counsel should
call, e-mail, or fax a request to the consular post to
accept jurisdiction. A written request should include:
(a) short statement of factors that make the applicant
unable to apply in the home country, and/or an ex-
planation of the hardship faced as a result of long
processing delays; (b) a copy of the I-797 notice of
approval of the I-140 petition; (c) a copy of the peti-
tion; (d) USCIS filing receipt for the I-824 if an I-
20
See letter from J. Cummings, Acting Director, Refugee,
Asylum, and Parole INS, published at 71 Interpreter Re-
leases 47 (Jan. 3, 1994).
THE FUNDAMENTALS OF LAWYERING AT CONSULAR POSTS
485 has been filed; and (e) completed visa applica-
tion Forms DS-230-I and II. The post should also be
satisfied that the beneficiary would be able to remain
in the host country long enough to complete process-
ing of the case.21 Confirm with the post in writing
that jurisdiction has been accepted.
Posts must accept for processing any IV applicant
who is physically present in their consular district
provided the applicant has the permission of the host
government to remain there legally for a period suf-
ficient to complete processing of the application.22
Consular posts in relatively low fraud/low vol-
ume countries are often more willing to accept dis-
cretionary jurisdiction than those in countries with
high fraud/high volume. Of course, in the post-9/11
world, consular officers may be reticent to accept
discretionary jurisdiction over an appropriate IV
case because of the fear of criticism by other gov-
ernment agencies.
Policies of consular posts regarding the accep-
tance of “orphan” immigrant visa applicants are sub-
ject to change without notice.
Inter-Post Case Transfers
An applicant whose case is pending at one consular
post may seek to have the case transferred to another
post. This process is not without some peril (i.e., de-
lays, misplaced, or lost files), and the applicant who
attempts the transfer bears the risk as well as the bur-
den of justifying the request. If a client insists on a file
transfer against counsel’s advice, it is advisable to have
client state in writing that counsel advised against a
transfer and counsel is requesting a transfer at the cli-
ent’s instruction. It is often far more efficacious for an
applicant to fly to the IV interview at the original proc-
essing post than to endure the frustration of attempting
to have a file transferred and obtain a new interview.
There are also other country specific considerations in
determining whether to request a file transfer when the
applicant has relocated from one country to another
during visa processing. In countries such as Pakistan
and Bangladesh, where consular officers and local em-
ployees are knowledgeable about the reliability of civil
documents and local variations in names and name
spellings, it may be in the applicant’s interest to retain
21
9 FAM 42.61 N 2.2-2. DOS Cable, 00 State 180792 (Sept.
2000), “Processing I-140 Petitions for Applicants Residing
in the U.S.,” published on AILA InfoNet at Doc. No.
00092773 (posted Sept. 27, 2000).
22
9 FAM 42.61 N3.1.
285
the case in the initial country rather than to relocate the
case to the adopted country for processing.
Dual Processing of I-130 Relative Petitions
In I-130 family-based petition cases, where the
beneficiary is in the United States, AOS or consular
processing for the beneficiary may be selected or
both pathways may be pursued simultaneously to
permit the beneficiary to choose the most rapid path
to permanent residence, assuming statutory eligibil-
ity for both. In non-quota relative cases and prefer-
ence cases where the priority date is current, appli-
cants eligible for AOS concurrently file Forms I-
130/I-485 with the National Benefits Center for
processing. Stand alone I-130 petitions (those not
filed with an I-485) are now filed with the Chicago
Lockbox and are then routed to, and adjudicated by,
the USCIS center with jurisdiction over the peti-
tioner’s place of residence in the United States. The
routing instructions are complex.23 Following the
strategy of “dual processing” will permit the client
to choose the quickest option for permanent resi-
dence, which will often be consular processing.
In the wake of the Adam Walsh Act, DOS has
implemented far more restrictive requirements for
petitioners to directly file an I-130 with the consular
post where there is no USCIS office in the country.
Consular officers overseas are only permitted to ac-
cept I-130 petitions from U.S. citizen petitioners
resident in the consular district for six months or
under limited humanitarian situations. The Visa Of-
fice must approve any other exceptions. Reportedly,
the Visa Office will rarely approve the filing of an I-
130 by a non-resident petitioner with a consular
post. Exceptions have generally been granted to U.S.
military members stationed in Iraq or Afghanistan.
Practice Pointer: Be certain to ascertain that the
beneficiary is eligible to file for adjustment of status
before filing. Review §245 of the INA, as well as the
companion regulations at 8 CFR §245 et seq and the
AFM. Note that persons who entered without in-
spection cannot adjust status under §245, unless a
priority date was established as a principal or deriva-
tive prior to April 30, 2001. Carefully review all of
the persons who can benefit from a §245(i) priority
date to determine whether client can use priority
date from a relative for §245(i) adjustment of status.
23
The instructions are available at www.uscis.gov/portal/
site/uscis/menuitem.5af9bb95919f35e66f614176543f61a/?vg
nextiod=c67c7f9ded54d010VgnVCM10000048f3d6a1RCRD.
286 NAVIGATING THE FUNDAMENTALS OF IMMIGRATION LAW (2008–09 ED.)
Practice Pointer: Do not suspend disbelief in
representing applicants in marriage cases. Do inves-
tigate the bona fides of the marital relationship be-
fore agreeing to represent clients in marriage cases.
It is incumbent upon competent counsel to exercise
due diligence before proceeding. Learn the clients’
cultures to assist in effectively representing the cli-
ents in marriage cases. If the marriage raises red
flags, decline the representation and counsel clients
about the penalties for marriage fraud. Common
sense would suggest that the following scenarios are
often red flags:
ƒ Large age difference between spouses;
ƒ Woman substantially older than man;
ƒ Immediate family members of one or both parties
to the marriage are unaware of the marriage,
unless explained;
ƒ Spouses living apart for other than educational or
professional reasons;
ƒ Marriage not recorded in personnel records for
one or both spouses;
ƒ USC petitioner has had multiple foreign national
spouses for whom marriage petitions were filed;
ƒ Spouses have lived apart in separate countries for
long periods of time with infrequent visits by the
USC to visit the beneficiary abroad, notwith-
standing separation may be caused by a Depart-
ment of Homeland Security (DHS) or consular
marriage investigation.
Practice Pointer: When representing foreign na-
tional males from the list of 26 countries or males or
females from the T-5 countries, I-485 adjudications
are frequently subject to lengthy delays, whereas the
clearances for immigrant visas processed at a consu-
lar post abroad tend to be completed much more
quickly. However, with the implementation of the
February 4, 2008, Aytes Memo, which permits
USCIS to approve adjustment of status applications
if the Federal Bureau of Investigation (FBI) name
check has been pending more than 180 days,24
unless other factors present. Attorneys are optimistic
that security clearance delays for adjustment of
status may be substantially reduced. Nonetheless,
when representing foreign nationals prone to secu-
rity clearance delays, consular processing may be a
much quicker solution. Consular posts do not sched-
24
M. Aytes, “Revised National Security Adjudication and
Reporting Requirements,” Feb. 4, 2008, published on AILA
InfoNet at Doc. No. 08021461 (posted Feb. 14, 2008).
ule IV interviews until security clearances are com-
plete. Mistakes do happen so it is the best practice to
confirm with the consular post that security clear-
ances have been completed. USCIS does not start
the clearances until the I-485 is filed and the biomet-
rics taken.
In all cases, before embarking on consular proc-
essing, conduct in depth, extensive and wide ranging
interview of client to make certain there is no
ground of inadmissibility or other problem in cli-
ent’s background which might cause a delay in visa
issuance.
With dual processing, a client can travel to the IV
interview and if there is a delay in IV issuance, the
client can return to the United States on advance
parole issued in connection with pending I-485. Be
sure to withdraw pending I-485 when client is ad-
mitted as LPR with immigrant visa. And request that
USCIS consolidate I-485 and IV files.
Dual Processing of Employment-Based Petitions
In I-140 employment-based petition cases, AOS
and consular processing may likewise be sought
concurrently through dual processing. Both path-
ways may be pursued, although USCIS attempts to
erect barriers to dual processing. USCIS permits
concurrent filing of the I-140 and I-485, if the prior-
ity date is current.25 USCIS has also implemented
premium processing of I-140s in the EB-1, EB-2,
and EB-3 categories,26 with certain exceptions, pro-
viding far more expeditious processing of eligible
petitions for an additional fee of $1,000. However,
the I-485 in such cases is placed in the I-485 queue
by the filing date of the I-140. With premium proc-
essing of the I-140, consular processing can be pur-
sued more expeditiously than without premium
processing.
The majority of I-140 petitions marked for con-
sular processing are forwarded to the NVC, but be
aware that USCIS examiners often follow the old
practice of automatically marking the case for AOS
if the beneficiary is currently in the United States. In
order to avoid the possibility of delay, any request
25
67 Fed. Reg. 49561–64 (July 31, 2002).
26
On July 2, 2007, USCIS temporarily and indefinitely sus-
pended the premium processing of the enumerated classes of
I-140 petitions due to the backlog in receipting and adjudi-
cating I-140 petitions created by the surge of I-140 and I-485
filings during “Visagate” 2007. Check www.uscis.gov for
updates on the return of Premium Processing.
THE FUNDAMENTALS OF LAWYERING AT CONSULAR POSTS
for consular processing should be marked boldly in
red ink on Forms I-140 and G-28, as well as any
cover letter. If the beneficiary has a foreign address,
indicate that address on the Form I-140 to avoid the
possibility of time delay if the I-140 is erroneously
marked for USCIS processing. It can take years, and
the approval of an I-824, to redirect an I-140 from
an erroneous AOS designation to consular process-
ing and to unearth the approved petition for trans-
mittal to a consular post.
Practice Pointer: Many consular posts are will-
ing to consular process an individual for an immi-
grant visa without waiting for the I-140 petition
from the NVC. DOS has strongly encouraged posts
to process IVs on receipt of the original I-797, a
copy of the I-140 petition and supporting docu-
ments, proof an I-824 has been filed (approval not
necessary) with USCIS requesting the I-140 be sent
to the consular post, Packet 3 materials, and a letter
from the employer describing the hardships in wait-
ing for USCIS AOS processing.27
Given the delays in AOS processing, many ad-
justment applicants have become interested in pursu-
ing consular processing through dual processing.
However, legacy INS issued a memorandum28 that
purported to prohibit dual processing as an ineffi-
cient use of INS resources, clearly ironic, when
mounting backlogs at USCIS gave rise to dual proc-
essing in the first instance. Moreover, USCIS does
not have jurisdiction over consular processing is-
sues. Confused applicants and their attorneys con-
tinue to search for avenues to reduce the many years
of waiting for USCIS to adjudicate an I-485. Dual
processing should be pursued with the caveat that it
is a delicate undertaking that requires understanding
of the process. Given that years can be shaved from
the time a client waits for permanent residence,
competent lawyering requires this option be dis-
cussed with the client.
27
DOS Cable, 00 State 180792 (Sept. 2000), “Processing I-
140 Petitions for applicants residing in the U.S.,” published
on AILA InfoNet at Doc. No. 00092773 (posted Sept. 27,
2000).
28
M. Cronin, “Prohibition on Concurrent Pursuit of Adjust-
ment of Status and Consular Processing” (Aug. 8, 2000),
published on AILA InfoNet at Doc. No. 00101803 (posted
Oct. 18, 2000), reprinted in 77 Interpreter Releases. 1551
(Oct. 30, 2000).
287
Dual Processing vs. Consular Processing
Dual processing is generally preferred by clients
as insurance against the possibility that the issuance
of an immigrant visa might unexpectedly be delayed
after the IV interview. Having an advance parole in
hand, issued in connection with a pending AOS ap-
plication, would generally permit the client to return
to the United States if immigrant visa issuance is
delayed. USCIS has attempted to impede this proc-
ess by attempting to force to choose between AOS
or consular processing, which is ultra vires. Thus, as
a general strategy, counsel should consider filing the
I-140/I-485 and then, when the I-140 is approved,
pursuing consular processing on the original notice
of approval of the petition. The dark cloud over this
process is that once all consular posts are transi-
tioned to Alpha posts, where all processing and
scheduling is completed at the NVC, some posts
may be reluctant to process an IV on the original
notice of approval.
IV Application Process
In petition cases, where the principal will apply
for an immigrant visa at a consular post, the ap-
proved employment based petition is sent by USCIS
to the DOS National Visa Center (NVC) in New
Hampshire for processing the immigrant visa appli-
cation.
Note that in following-to-join (FTJ) employment
based immigrant visa cases, applicants apply by
sending proof of principal’s priority date and per-
manent resident status, proof of relationship and
Packet 3 documents directly to the consular post. No
I-824 or other communication from DHS is required.
If due diligence indicates that consular processing
should be pursued, such should generally be pursued
in FTJ cases. Eliminating document transfers from
USCIS to NVC to the consular posts saves much
time. The Visa Office has announced that NVC will
commence the processing on following-to-join cases
in the near future. Processing through the NVC will
add months on to the processing time of FTJ cases at
most consular posts. It is hoped that consular posts
will continue to have jurisdiction to process FTJ
cases directly without the necessity of processing
through NVC.
The National Visa Center of DOS
The NVC is located in Portsmouth, New Hamp-
shire and is operated primarily by contractors with a
few DOS employees. Attorneys may e-mail the
NVC with inquiries at nvcattorney@state.gov. The
288 NAVIGATING THE FUNDAMENTALS OF IMMIGRATION LAW (2008–09 ED.)
website can be accessed at http://travel.state.gov/
visa/immigrants/types/types_1309.html and has de-
tailed information on processes and procedures.
NVC processes petitions received from USCIS, in-
cluding forms I-130, I-140, I-129F (fiancé(e)), I-
129-K-3, LIFE Act, I-600A (orphan), I-730
(asylee/refugee), I-529 (investor) and I-360 (special
immigrant). The majority of the petitions processed
by the NVC are family petitions. A complete over-
view of the NVC process can be found at AILA In-
foNet in the “Report from the AILA Tour of the Na-
tional Visa Center.”29
The Case Process
When NVC receives an approved petition from
USCIS, the USCIS barcode is scanned into the sys-
tem. Within 24 hours of receipt of a petition at NVC,
there is a record of its receipt by USCIS receipt
number. The next step is data entry, when an NVC
case number is assigned to each case. For the rest of
the processing at NVC, and for processing at post,
this number will be the main case identifier. The
case number must be referenced in all correspon-
dence with NVC and the consular post.
How a Case Number Is Assigned at NVC
Take, for example, the case number
LND2002536018. The number consists of a three-
letter code indicating which overseas U.S. embassy
or consulate will handle the case—in this case, Lon-
don. The 2002 refers to the year in which the case
was created at NVC (not always the same as the
“priority date” year). The next three digits are the
Julian date plus 500. The number 536 would indi-
cate that this case was created on the thirty-sixth day
of the year, or February 5. The final three digits,
018, show that this was the 18th case30 created for
London on February 5.
Once the case number is created, a file folder is
created, and the case undergoes a quality control
29
See “Report from the AILA Tour of the National Visa
Center”, published on AILA InfoNet at Doc. No. 06101860
(posted Oct. 18, 2006).
30
Every month, the Visa Office (VO) establishes qualifying
dates that determine if a petition will be eligible for process-
ing. qualifying dates are the latest priority dates that can be
processed for certain visa categories. An immigrant visa
petition can only become ready for further processing when
the qualifying date in the appropriate visa category has ad-
vanced up to the priority date of the petition. Petitions may
remain at NVC for several months or for many years de-
pending on the visa category and country of birth of the visa.
check to ensure that all the data has been entered
accurately.
Once in the NVC system, the case will then be
processed for the consular post abroad according to
the designation as to the type of review, standard
and appointment. Standard review posts are those
posts where NVC does not collect documents or
schedule the IV appointment. The appointment re-
view posts are the posts where NVC performs
document review, security checks or IV appointment
scheduling. NVC currently does this for 78 posts
worldwide (all posts in Africa, Near East Asia, and
the Western Hemisphere.) They are currently in the
process of converting European posts and will next
convert posts in South Central Asia and East Asia
Pacific.
Once the priority date is within the qualifying
date, which is not the same as the priority, the fol-
lowing steps are taken with respect to both standard
review posts and appointment posts:
1. The IV application processing fee bill and the
Affidavit of support processing fee bill are sent
to the attorney two-four weeks after receipt of a
current priority date case from USCIS.
2. Attorney then mails all fees in the form of certi-
fied checks or money orders (no personal or
law firm checks) to the lock box at the U.S.
Bank in St. Louis in the envelope provided by
NVC. The address of the lock box in St. Louis
is P.O. Box 790136; St. Louis, MO 63179-0136.
3. The affidavit of support fee is $70. The IV fee
is $355 and the security enhancement fee is
$45.
4. The lock box in St. Louis processes the pay-
ment and forwards the fee payment information
to NVC.
5. NVC then mails a packet of forms and instruc-
tions to the attorney of record, which includes
the affidavit of support, the DS-230-I and In-
structions for IV application.
6. Attorney then completes and returns all forms
to NVC. Be sure to complete all forms entirely,
entering a response in each block on each form.
Be sure to include the required tax returns and
supporting documents with the affidavit of sup-
port.
7. NVC reviews all documents and forms for com-
pleteness. One checklist letter may be sent for
missing or incomplete information. Counsel
should be advised, however, that subsequent
THE FUNDAMENTALS OF LAWYERING AT CONSULAR POSTS
checklist letters might be sent, indicating that
even more documentation must be submitted in
order to resume processing of the IV application.
8. When the case record is complete, the file will
be sent electronically and physically to the IV
processing consular post.
With respect to appointment review posts, the
immigrant visa interview appointment date is sched-
uled by NVC. DOS has advised that it anticipates
that all consular posts will become appointment re-
view posts by the end of 2008.
While NVC processing of an entire IV case may
reduce waiting times for immigrant visa interviews
at some posts, attorneys have found that processing
times have increased at efficient posts when all
processing completed by NVC. Thus, converting the
entire world to NVC appointment review processing
is viewed by many experienced practitioners as cre-
ating rather than eliminating processing delays.
However, it will still be possible to process an
employment-based IV on the basis of an original
notice of approval and copies of the I-140 petition
and supporting documents, provided the post agrees
to do so. DOS continues to encourage posts to facili-
tate IV issuance by accepting original notices of ap-
proval to create a post file and issue an IV. Attor-
neys remain concerned that when all processing is
done at NVC, posts may resist assisting meritorious
applicants by processing on an original notice of
approval.
The additional steps in appointment review cases
are as follows:
1. DS-230 Part II must be completed and returned
with DS-230 Part I to NVC.
2. Original or certified copies of civil documents,
including birth, marriage, divorce, death, mili-
tary and police records must be returned to
NVC with the items listed in Item 1 above.
3. Up to two checklist letters may be sent for miss-
ing or incomplete information. Allow two to three
weeks for review of each submission to NVC.
4. If a security advisory opinion (SAO) is re-
quired, NVC initiates the SAO and waits for re-
sponse.
5. Once necessary SAO and visa number (if quota
case) is received, the NVC schedules IV interview
date and sends appointment letter to attorney.
6. NVC then forwards electronic and physical
files to the post after IV date scheduled.
289
DOS’s website at http://travel.state.gov/visa/re-
ciprocity/index.htm, as well as the FAM, includes
information about the availability of certain types of
documents in each country and the appropriate au-
thority to issue the documents. All the required
documents must be submitted in the original or certi-
fied copy to NVC in appointment review post cases.
Clients are often reluctant to part with valuable
originals for fear of loss in transmission by NVC to
the post. Fortunately, loss of documents is report-
edly very rare. Problems have been encountered in
appointment review cases where a civil document
will only be issued where the applicant appears at
the appropriate government office in the home coun-
try and requests it.
A detailed description of required documents is
set forth at 22 CFR §42.65.
ƒ Passport—A passport must be valid for at least
six months beyond the date of visa issuance.
ƒ Birth Certificate(s)—A certified copy of the birth
certificate of each applicant and each child under 21
years of age (even if the child is not applying for a
visa) is required. Delayed issuance birth certificates
are often accepted at many posts, and are preferred
to affidavits of birth. If a birth certificate is unavail-
able, secondary evidence of birth, such as school
records, religious records, or affidavits may be
used, but only if accompanied by a certificate from
the Registrar of Births having jurisdiction over the
place where the person was born attests that a birth
certificate is unavailable.
Practice Pointer: Review birth documents care-
fully and compare them with the information con-
tained in the FAM. Problems are encountered with
Pakistani birth records as they often do not list the
mother thus necessitating a ceremony at the Office
of the Civil Registrar to include the name of the
mother on the birth certificate. A common problem
with Indian birth certificates is that they often do not
list the name of the child and may not list the name
of the mother. Often names are abbreviated. Make
sure all names are completely spelled out.
The only acceptable birth certificate from the Phil-
ippines is a birth certificate printed on National Statis-
tics Office (NSO) paper. The stamp of the NSO on a
birth certificate issued by local authorities or any other
authority is not acceptable. Only if the NSO certifies
there is no record of birth is alternate birth documenta-
tion accepted. The NSO must issue a statement attest-
ing to its unavailability, and the applicant must obtain a
290 NAVIGATING THE FUNDAMENTALS OF IMMIGRATION LAW (2008–09 ED.)
certified birth certificate from the local Registrar of
Births in the place of birth.
ƒ Police Certificates—Each applicant, age 16 or
over, is required to submit a police certificate, if
available, from authorities of the country of na-
tionality and current residence (except the United
States) where the applicant has resided for at
least six months since reaching age 16 and from
other countries where the applicant has resided
for a year or more. The consular officer has the
right to request police clearance certificates from
any other countries if there is reason to believe
the applicant might have a criminal record in
such other country. U.S. police certificates are
not required, but may be requested by a consular
officer. It is good practice for counsel to obtain
the FBI rap sheet for applicants in the event the
client has forgotten about a brush with the law
while in the United States.
ƒ Court and Prison Records—A certified copy of
the applicant’s criminal record, and record of
confinement in any correctional institution, if
any, must be submitted. A complete certified re-
cord, including arrest record, complaint, indict-
ment, and sentencing record is required regard-
less of when the offense occurred or whether
there has been any intervening amnesty, pardon,
or expungement. Also be certain to include a
copy of the statute under which the client was
convicted and sentenced. Be careful to assess
admissibility before applying for an immigrant
visa.
Practice Pointer: If possible, criminal matters
should be discussed in advance of an IV interview
with the consular officer because of the complexity
of issues regarding the immigration consequences of
criminal convictions. An advisory opinion from the
visa office should be obtained in advance of the IV
interview on legal questions of inadmissibility.
ƒ Military Record—An official record of the appli-
cant’s military service, if any, must be submitted.
A record of service conduct and discharge may
be required.
ƒ Marriage Certificate—A certified copy of the
applicant’s marriage certificate, as well as proof
of termination of any previous marriage(s) (e.g.,
divorce decree, death certificate, or record of an-
nulment) must be submitted. Be sure to submit
document in the original language, along with a
certified English translation.
ƒ Photographs—All applicants must submit at
least two photographs, which conform to precise
specifications. Additional photographs may be
required, depending upon the post (many require
four). Photo specifications can be found at
http://travel.state.gov/passport/guide/compositio
n/composition_874.html?css=print.
ƒ Evidence of Financial Support—Evidence of fi-
nancial support is required to document that an
alien will not become a public charge, a ground
of inadmissibility under §212(a)(4) of the INA.
– Form I-134 is required for dependents of em-
ployment-based applicants, if not self-
supporting. Certain employment-based appli-
cants and most family-based applicants must
submit the far more complex I-864 Affidavit
of Support or I-864EZ (short form available
for certain applicants. See form for a listing of
eligibility criteria.
– The Form I-134 or I-864 must be accompa-
nied by supporting documents demonstrating
the affiant has the ability to support the appli-
cant. For most immigrant visa applicants, this
evidence may include a notarized letter or of-
fer of employment, bank statement(s), income
tax return(s), and/or proof of ownership of
real estate, and other financial assets. Affida-
vits of support are legally enforceable con-
tracts when completed on Form I-864 or I-
864EZ. DOS has imposed a processing fee of
$70 for Form I-864.31
The older, less cumbersome version of the Affi-
davit of Support, Form I-134, is still used for em-
ployment-based immigrant visa applicants (without
a significant family ownership interest in the peti-
tioner) and on behalf of his or her accompanying
family members.
Practice Pointer: Affidavit of Support issues are
one of the most common reasons for denial of an
immigrant visa at consular posts, especially in fam-
ily cases. They are complex forms and are often a
puzzle to even seasoned immigration attorneys. De-
tailed instructions on completing the I-864 and I-
864EZ can be found at http://travel.state.gov/visa/
immigrants/info/info_1335.html. To avoid questions
about the authenticity of tax return copies submitted
in support of the affidavit of support, applicants may
wish to request from the Internal Revenue Service
31
65 Fed Reg. 13253–54 (Mar. 13, 2000).
THE FUNDAMENTALS OF LAWYERING AT CONSULAR POSTS
(IRS) copies of tax returns and proof of payment of
taxes. This can be done in person at an IRS office, or
by calling the IRS to request an application form.
Note that either the affiant or the applicant may be
paying taxes on an installment plan. Be sure to ask
to avoid rude surprises at the IV interview.
Practice Pointer: Send the client to the IV inter-
view with an updated I-864, I-864EZ or I-134 and
current, notarized job letters, bank statements, and
tax returns even though updated Forms I-864 and I-
864EZ are no longer required. Some consular posts
require that the person filing the I-864 or I-864EZ
sign an IRS release form authorizing the NVC or the
consular post to obtain copies of tax returns directly
from the IRS. Of course, consular officers may, in
any case, request that such releases be executed to
permit the IRS to directly transmit tax return copies
to the NVC or DOS.
ƒ USCIS Proceedings—Any record of USCIS de-
portation, removal, or exclusion proceedings
must be provided, including a record of voluntary
departure. Applicants who have been previously
granted voluntary departure should also provide
evidence of compliance with the voluntary depar-
ture order, such as passport stamps, plane tickets,
boarding passes, and other credible documenta-
tion. Be sure to obtain the contents of both the
USCIS and the immigration court, Executive Of-
fice for Immigration Review (EOIR) file through
a Freedom of Information Act (FOIA) request for
clients who have been in proceedings. Separate
requests are required for EOIR records and
USCIS proceedings. FOIA response time has be-
come long so filing an early FOIA request is
critical. Responses to FOIA requests are now
usually provided on a CD.
ƒ Translations—All foreign language documents
must be accompanied by a certified translation.
However, most consuls will accept untranslated
documents in the language of the country in
which the consulate is located.
ƒ Unobtainable Documents—If the consular offi-
cer is satisfied that a required document is unob-
tainable, the officer may permit the substitution
of other satisfactory evidence upon a finding that
the document cannot be obtained without hard-
ship.32 The applicant should document the efforts
made to obtain the document in question, such as
copies of applications made for missing docu-
32
22 CFR §42.65(d).
291
ments, letters sent to government offices and/or
relatives seeking the document in question, and
(if possible) a letter from a government office
explaining that the document is not available.
Practice Pointer: There are very few truly “un-
available” birth and marriage documents today. De-
layed birth certificates are generally preferred at
posts in India and Pakistan, rather than “Affidavits
of Birth,” particularly in employment cases. Beware
of tribal birth, marriage, and divorce documents
from African countries, as they are often not authen-
tic. It is imprudent to rely on tribal documents with-
out a factual investigation.
Appointment Packet and Visa Interview
After all the necessary documents have been re-
ceived and reviewed and all security and other clear-
ances obtained, a visa number is obtained from the
Visa Office in Washington, D.C. A final appoint-
ment (formerly known as Packet IV) is sent either
by the NVC or the post.
Medical Examination—All immigrant visa appli-
cants are required to complete a medical examina-
tion performed by a physician designated by the
consular post in the country where the consular post
is located. Applicants are advised to bring any avail-
able vaccination and other medical records with
them. HIV testing is required of all applicants. Infec-
tion with the HIV virus is a ground of inadmissibil-
ity from the United States, although a waiver may be
available.33 Make sure clients’ required vaccinations
have been taken and that the client has a record.
Medical exams from USCIS panel physicians in the
United States are not accepted for consular inter-
views—not ever, so do not ask. It is good practice to
advise clients to have an HIV test before going
abroad to avoid devastating surprises.
Timing may also be an issue. While the medical
exam at most consular posts can be scheduled one to
three days before the interview, there can be a delay
of up to a week at some posts. In addition, the re-
sults of the medical exam, or any follow-up testing
required, may in some cases take several weeks to
complete. The client should call the U.S. embassy
panel physician in advance to make arrangements
33
See AILA’s Visa Processing Guide and Consular Posts
Handbook for information regarding medical exams at many
consular posts. See also the “Sources of Authority” section
in this article.
292 NAVIGATING THE FUNDAMENTALS OF IMMIGRATION LAW (2008–09 ED.)
for the medical exam. Medical exams may usually
be expedited for an additional fee.
The health-related grounds of inadmissibility for
immigrants require proof of vaccination against vac-
cine-preventable diseases, which include: mumps,
measles, rubella, polio, tetanus and diphtheria
toxoids, pertussis, influenza type B, hepatitis B, and
any other vaccinations against vaccine-preventable
diseases recommended by the Advisory Committee
for Immunization Practices. A waiver34 of vaccina-
tions is available if a medical determination is made
that the vaccination is not medically appropriate; or
the attorney general determines the vaccination
would be contrary to the alien’s religious beliefs or
moral convictions.
A trap for the unwary is a medical determination
of substance abuse. If an applicant admits any rec-
reational use of marijuana or other drug usage to the
panel physician, even if only recreational, or has
arrests for driving while intoxicated,35 there is a risk
the physician will make a finding that the applicant
is a substance abuser. Warn clients against casual
chats with the embassy panel physicians, as they are
not confidential. There is no waiver for a substance
abuse inadmissibility determination.
Practice Pointer: The consular post in Ciudad
Juarez has implemented a laudable post policy on
substance abuse determinations. The post will refuse
the visa on the basis of a determination of substance
abuse and will keep the IV case open for three years
to permit the applicant to show rehabilitation. How-
ever, this is the exception, not the rule. It is impor-
tant to advise clients that the panel physician will
note admissions of drug or alcohol use and it can
and will be used against your client.
Visa Interview—The visa application (DS-230
Part II) is executed at the time of the interview in the
presence of the consular officer.36
34
INA §212(g).
35
In June 2007, DOS issued a cable, DOS 079496, requiring
a mandatory referral of both NIV and IV applicants to the
Embassy panel physician for an evaluation of whether an
applicant with one DUI arrest or conviction within the pre-
ceding three years or two or more arrests or convictions at
any time may be inadmissible to the United States under
§212(a)(1)(A)(iii). An alcoholic is not inadmissible to the
United States unless there is harmful behavior associated
with the condition that has posed, or is likely to pose, a threat
to the property, safety, or welfare of the alien or others. 9
FAM 40.11 N8.3.
36
22 CFR §42.67(a)(2).
Eligibility is determined at the interview. Gener-
ally, the consular officer questions the applicant and
reviews the documents within the purview of the
various grounds of “inadmissibility” contained in
INA §212(a). The applicant bears the burden of
proof as to admissibility.
Practice Pointer: Courtesy counts both on the
part of the attorney and the client. The local consular
employees are very often at consular posts for dec-
ades and they have a very long memory—negative
and positive. They are usually the first point of con-
tact with a consular section and consular officers
often rely on their local expertise and knowledge in
case adjudication. Be polite and thank them without
fail, in writing and word. Make sure your client is
prepared for the interview etiquette-wise. Always go
through a mock interview with the client to impart
interview skills and reduce anxiety. A letter to the
ambassador extolling the expertise and courtesy of a
consular official and consular assistant with a copy
to the officer or assistant will long be remembered.
Attorney Representation—The right to represen-
tation at the visa interview continues to be a matter
of controversy and is currently raging in Mexico
with the unilateral barring of lawyers from even en-
tering the consulates. This hostile action was taken
without discussion with the immigration bar or af-
fected U.S. citizens and businesses. Consular posts
in Canada currently honor the right to counsel and
welcome attorney participation out of recognition
that attorneys add value to the process in explaining
complex facts and the application of the law to those
facts. DOS acknowledges that there is an appropriate
role for the attorney in the visa process:
In the sometimes-complex world of visas, a good
attorney can prepare a case properly; weed out
“bad” cases; and alert applicants to the risks of
falsifying information. The attorney can help the
consular officer by organizing a case in a logical
manner, by clarifying issues of concern, by
avoiding duplication of effort and by providing
the applicant with the necessary understanding of
the intricacies of the visa process.37
DOS also recognizes that the threshold decision
of an applicant to engage the services of an attorney
in connection with the visa process, as well as the
37
DOS Cable, 83 State 323769 (Nov. 1983) from Cornelius
D. Scully, III, Director, Office of Legislation, Regulations
and Advisory Assistance, Visa Office, to U.S. Consulate,
Taipei.
THE FUNDAMENTALS OF LAWYERING AT CONSULAR POSTS
entire attorney and client relationship, is not a proper
subject for consular inquiry or investigation. Ques-
tions regarding how a client met an attorney and the
amount and other details regarding legal fees paid
are inappropriate.
Ironically, DOS has an institutionalized anxiety
about according visa applicants the right to counsel
in a meaningful way, including the right of the ap-
plicant to have an attorney present at the visa inter-
view. Although there is statutory authority to sug-
gest that an alien has a right to be accompanied by
counsel,38 DOS takes the position that whether an
attorney is permitted to represent a client at a visa
interview, and under what circumstances, is at the
sole discretion of the consular post and the individ-
ual interviewing consular officer. DOS has stated
specifically that:
[T]he matter is within the discretion of the indi-
vidual case officer conducting the interview and no
supervisory officer may require a case officer to
permit attorneys to be present at visa interviews
conducted by that officer. It is the [DOS’s] further
position that a case officer who elects to permit at-
torneys to be present at interviews conducted by him
or her must do so in all cases in which an attorney so
requests and may not permit some attorneys to be
present while denying others.”39 Where such pre-
cious rights are at stake, impacting U.S. citizens and
businesses as well as the applicants, throwing the
fate of the affected parties to the randomness of
where visa application is made and to which window
an applicant is summoned for an interview is mor-
ally and legally indefensible.
Attorneys are well advised to familiarize them-
selves with the right to counsel policy at the particu-
lar post involved. Consular posts vary widely in
their positions on the right to counsel, from recog-
nizing the right to counsel and facilitating counsel’s
presence at the visa interview to refusing attorneys
admittance to the building where the interview is
conducted. The policies for the many consular posts
are summarized in AILA’s The Visa Processing
Guide and Consular Post Handbook: Process and
Procedure at U.S. Consulates and Embassies and
are often reported on AILA’s InfoNet. In addition,
38
See Administrative Procedure Act, 5 USC §555(b) (1994).
39
9 FAM 40.4 N12.
293
minutes from the liaison meetings with DOS offi-
cials are posted on AILA’s InfoNet.40
Permitting the consular officer who acts as judge,
jury, and prosecutor to determine whether the applicant
is entitled to legal counsel and the parameters of repre-
sentation if permitted at all, is a flagrant violation of
the most basic values of the system of American jus-
tice. Both the American Bar Association and the Ad-
ministration Conference of the United States (ACUS)
have long taken the position that applicants should be
accorded the right to counsel in visa interviews and the
right to appeal visa denials. It is a shameful vestige of a
system that must be changed by either DHS, in its ca-
pacity of having jurisdiction over visa policy, or by
legislation.
During the visa process itself, many consular of-
ficers will discuss individual cases with attorneys by
telephone. Before initiating a dialogue, it is wise to
send a fax letter or e-mail to alert the consular offi-
cer as to the nature of the case (including case num-
ber) and the matter to be discussed.
Visa Issuance
An immigrant visa is valid for travel to the
United States for a period of up to six months after
issuance.41 In some situations, the visa may be is-
sued for a shorter period. For example, the validity
may not extend beyond a date 60 days prior to the
expiration of the applicant’s passport, or, when is-
sued to an accompanying child, may not extend be-
yond the date on which the child becomes 21.42
Certain aliens are not required to present a pass-
port when applying for an immigrant visa.43 Simi-
larly, some aliens are also exempt from obtaining an
immigrant visa in order to enter the United States in
resident status.44
40
Go to www.aila.org, and select Agencies and Liaison,
Department of State, Liaison Reports.
41
INA §221(e).
42
One significant exception permits certain residents of
Hong Kong to extend the period of visa validity beyond the
normal limit set forth in INA §221(c). In order to qualify, the
alien must have elected to take advantage of this “back
pocket” provision, notified the consular post in writing, pro-
vide evidence of continuing eligibility, and have entered the
United States prior to Jan. 1, 2002. INA §221; 22 CFR
§42.72(e).
43
See 22 CFR §42.2.
44
See 22 CFR §42.1.
294 NAVIGATING THE FUNDAMENTALS OF IMMIGRATION LAW (2008–09 ED.)
Visa issuance does not guarantee admission to the
United States and the applicant will be scrutinized at
the point of entry. In the post-9/11 world, many IV
applicants for admission will be subjected to further
scrutiny and security checks at the port of entry.
Consular Petition Returns to USCIS
Another concern in consular processing is puni-
tive consular petition returns to USCIS for consid-
eration of revocation. Long delays are the norm and
the alien is often unable to return to the United
States while the matter is pending. Immigrant visa
petitions, K-1, and K-3 petitions being returned to
USCIS for consideration for revocation are sent by
the consular post to NVC.45 NVC then reviews and
forwards the petition to USCIS. NVC also tracks
and follows up on petitions, enabling counsel to de-
termine the status of a returned petition and take cor-
rective action.
Delays in NVC or USCIS processing of returned
petitions should be communicated to legalnet@
state.gov.
Practice Pointers on Common Causes of I-140
Petition Returns: In labor certification cases, consu-
lar officers often give “skills tests” at visa inter-
views. Make sure the client is fully prepared to
demonstrate skills—particularly in the professions
of computer professionals, accountants (know soft-
ware, GAAP, debits and credits), engineers, archi-
tects, financial analysts, market analysts, physicians,
nurses, cooks, and oriental rug repairers. If the labor
certification is for a cook, make sure the applicant
can cook everything on the menu. If a seamstress,
rug repairer or mechanic—historically suspect labor
certification occupations—make sure the client is
comfortable with skills demonstrations and knowl-
edge tests that may be given at the IV interview.
There is the legendary story of a consular officer
who denied a visa to a claimed auto mechanic be-
cause he didn’t have dirt under his fingernails.
(There were other signs the applicant did not have
the experience claimed; but the clean fingernails
were the tip-off). The denial was sustained. Attor-
neys have reported a recent increase in visa denials
because an applicant cannot speak English, and the
consular officer concludes that English competency
is required for the job duties. This problem report-
edly occurs in Abu Dhabi (Iranian applicants) and
the People’s Republic of China (PRC). There is a
45
9 FAM 42.43 N2.
punitive tendency to return the I-140 petition to
USCIS for consideration of revocation. As both con-
sular officers and attorneys are generally aware, the
issue generally can be resolved more easily by the
consular officer than by USCIS. If counsel can reach
the consular officer before the return of the petition
to USCIS, it is advisable to offer to provide addi-
tional evidence to address the consular officer’s
concerns directly to the consular post.
A consular officer is permitted to issue the visa
even after the petition is returned to USCIS if evi-
dence sufficient to overcome the possible ground of
revocation is submitted to the consular post. If the
issues are resolved at the post, the visa may be is-
sued and the consular officer then notifies NVC and
USCIS that the ground of revocation has been over-
come and the visa can be issued.
An advisory opinion from the Visa Office Advi-
sory Opinion Division (AOD) may be requested in
conjunction with attempting to provide additional
evidence to the consular post. Attorneys may submit
evidence to the AOD as long as copies are provided
to the consular officer.
The duty of competent representation always ex-
tends to preparing a client for the visa interview both
in terms of documentation and types of questions
asked. Never skip this step, regardless of the extra
time and effort it may take to have a phone conver-
sation time zones away and the need for a translator.
It is well worth the effort. Make sure you carefully
prepare the visa applications; that your client is fa-
miliar with the petition and all supporting docu-
ments, and that the client can pass a skills test in
employment-based cases. It is always a good idea
for the visa applicant to have a conversation with the
employer several days before the interview to reaf-
firm the job is still open and to finalize travel ar-
rangements and the like. Remember that many con-
sular officers who are skeptical of a job offer may
pick up the phone and call the U.S. employer and
ask questions about the employer’s business and the
job offer.
Visa Refusal
An immigrant visa can be refused only on the ba-
sis of a ground specifically set forth by statute or
regulation. When an immigrant visa is refused, the
consul is required to give the applicant timely, writ-
ten notification of the provision of law or regulation
on which the refusal is based and to notify the appli-
THE FUNDAMENTALS OF LAWYERING AT CONSULAR POSTS
cant of any statutory provisions under which admin-
istrative relief may be available.46 If the grounds of
ineligibility can be overcome by presenting addi-
tional evidence, the applicant should be given the
opportunity to present this evidence. If the grounds
of ineligibility upon which the visa was refused can-
not be overcome by the presentation of additional
evidence, the principal consular officer at a post, or a
specifically designated alternate, shall review the
case without delay, record the review decision, and
sign and date the prescribed form. If the grounds of
ineligibility may be overcome by the presentation of
additional evidence and the applicant indicates the
intention to submit such evidence, a review of the
refusal may be deferred. If the principal consular
officer or alternate does not concur in the refusal,
that officer shall either: (1) refer the case to the De-
partment for an advisory opinion, or (2) assume re-
sponsibility for final action on the case.47
Often the refusal notice, generally issued on
Form OF-194, does not provide a meaningful expla-
nation as to either the grounds of refusal or whether
they can be overcome. The OF-194 is a pre-printed
form, known as a “blue sheet” and is often vague
and cryptic requiring counsel to contact post to learn
the factual basis for the denial.
INA §221(g) is used as a catch all for both proper
and improper delays in visa issuance for “further
administrative processing.” It can be a trap for the
unwary attorney as immigrant petitions can be re-
turned to USCIS for consideration of revocation be-
fore counsel is advised of such, thus causing inter-
minable delays when, in fact, the client and the at-
torney can in many cases supply answers to the
questions posed by the consular officer without the
necessity for a petition return to USCIS. Absent
fraud, petition returns are widely perceived by attor-
neys to be punitive, resulting in months or even
years of delay while the petition lies in USCIS proc-
essing purgatory, only to be reaffirmed in most
cases. It is critical to develop relationships of trust
and respect with consular officers at posts to maxi-
mize the chance that §221(g) refusals can be quickly
resolved at post rather than suffer a return to USCIS.
Do not panic when a blue sheet is issued. Quickly
interview the client, gather the facts, do the research,
46
22 CFR §42.81(b). See also 17 AILA Monthly Mailing 51
(Jan. 1998); 74 Interpreter Releases 1037–38 (July 7, 1997),
discussing DOS Cable, 97 State 114760 (June 18, 1997).
47
22 CFR §24.81(c).
295
and then send a probative e-mail to the consular post
in an attempt to resolve outstanding issues short of a
petition return. It is a good idea not only to send the
email to the general post email for IV inquiries but
also to copy the chief of the Visa Section and/or
chief of the IV section on the e-mail.
Practice Pointer: Avoid the foot in mouth dis-
ease by refraining from telling the consular officer,
rather than asking, why the visa was denied, and
avoid ballistic tactics when discussing the case with
consular officials. Experience has shown that more
often than not, the reason the client believes a visa
was denied is not the correct reason the visa was
denied. Rather than compose an elaborate brief as to
why the visa was refused in error, based only on
what the client tells you, find out from the consular
officer why the visa was denied and begin baseline
representation from there. This is a common error by
even the most experienced attorneys and the tempta-
tion to transmit a communication expressing right-
eous outrage at a wrongful refusal is difficult to re-
sist. However, the author has found that a few days
of patience will generally result in the attorney better
understanding the reason for the denial and thus,
better able to represent the client’s position with bet-
ter outcomes in the visa process.
Waivers of Inadmissibility
If an immigrant visa is denied, a waiver may be
available. An immigrant visa applicant who is eligi-
ble for a waiver of inadmissibility may only file the
waiver application (Form I-601) at the consulate
after the interview is completed and a formal finding
of inadmissibility has been made. At the present
time, there is no pre-processing for most waiver ap-
plications, an exception being the Form I-212, Ap-
plication for Permission to Re-apply for Admission
Into the United States After Deportation or Re-
moval, which waives inadmissibility under
§212(a)(9)(A) of the INA.
USCIS’s I-601 filing fee may be paid at a state-
side USCIS office and sent to the IV interview with
the client to expedite matters.
The waiver application (I-601) is forwarded to
and adjudicated by the USCIS office overseas hav-
ing jurisdiction over the consular post. It is generally
possible to contact the USCIS officer overseas to
discuss the case. A list of the overseas USCIS of-
fices and their countries of jurisdiction can be ac-
cessed at https://egov.uscis.gov/crisgwi/go?action
=offices.type&OfficeLocator.office_type=OS. This
procedure may involve an independent investigation,
296 NAVIGATING THE FUNDAMENTALS OF IMMIGRATION LAW (2008–09 ED.)
and, generally, a lengthy delay. Attorneys should
prepare a waiver application with probative and
credible documents for presentation at the visa in-
terview, if the ground of inadmissibility is known
prior to the interview.
In a welcome procedural change, Ciudad Juarez
has implemented one-step adjudication for clearly
approvable cases. After the immigrant visa is de-
nied, the applicant makes an appointment by calling
the appointment line and making an appointment.
Information on how to navigate this system is at
http://ciudadjuarez.usconsulate.gov/wwwhivciswaiv
er.html. I-601 applications that are not clearly ap-
provable will go into a queue which is several
months long. This new procedure is expected to re-
sult in shortening the waiver processing time and
enable applications to be tracked with much more
certainty that is presently available. Practitioners
should be on notice that I-601 waiver applications in
Ciudad Juarez now require substantially more proba-
tive evidence and documentation of extreme hard-
ship than in the past. With respect to processing I-
601 forms in Mexico, attorneys are well advised to
ensure clients understand that they must remain in
Mexico during the visa processing, as if the client
returns to the United States while the waiver appli-
cation is pending, the waiver will be denied for that
reason alone.
Three– and Ten-Year Unlawful Presence Bars—
Of all the grounds of inadmissibility, perhaps the
greatest area of concern associated with the sunset of
INA §245(i) and the resulting increase in immigrant
visa interviews is INA §§212(a)(9)(B)(i)(I)–(II),
which impose three- and ten-year periods of inad-
missibility for most applicants who were unlawfully
present in the United States for certain periods sub-
sequent to April 1, 1997. A complete discussion of
these bars appears in a separate article in this vol-
ume. It is essential that all applicants be prepared to
address this issue at the visa interview with both tes-
timony and documentation.
DOS has issued a cable discussing in consider-
able detail these grounds of inadmissibility.48 The
cable specifically recognizes the difficulty of deter-
mining whether an applicant has been unlawfully
present. It advises consular officers not to routinely
48
DOS Cable, 98 State 060539 (Apr. 4, 1998), reprinted in
75 Interpreter Releases 543 (Apr. 20, 1998), published on
AILA InfoNet at Doc. No. 98040490 (posted Apr. 4, 1998).
9 FAM 40.92 Notes.
question applicants unless the issue becomes appar-
ent through inspection of the applicant’s passport or
answers provided on the immigrant visa applica-
tion/petition. Further, the cable states that consular
officers should ordinarily refer to information from
the visa application, post records, and the CLASS
lookout system—and cautions that USCIS or DOS
Visa Office record checks should not be routinely
made because arrival/departure records and records
of authorized extensions and changes of status are
frequently incomplete or not readily accessible. De-
spite these instructions, it is extremely important that
applicants be prepared to answer detailed questions
and provide credible documentary affirmative evi-
dence to establish that they are not subject to either
of the bars.
Practice Pointer: Factors which are considered
in waiver applications include whether unlawful
presence was willful or unwitting and unknowing;
length of time unlawfully present; length of time
outside the United States after unlawful presence in
the United States; good moral character; loss to
community if not permitted to return to the United
States and extreme hardship to a U.S. citizen (USC)
and/or legal permanent resident (LPR) relatives if
not permitted to return to the United States. Please
note that one must have an anchor relative to be eli-
gible to file for a waiver of the bar (spouse or son or
daughter of a USC or LPR) and must demonstrate
extreme hardship to such relative.
Criminal Convictions
If a criminal conviction is the ground of exclud-
ability, certified copies of arrest records, court re-
cords, and copies of the statutes under which the
applicant was convicted and sentenced must be pro-
vided at the time of the visa interview. Speak with
both the consular officer and the USCIS officer be-
fore the consular interview about adjudicatory poli-
cies and processing times for a waiver. Generally,
Form G-325A must be submitted with the I-601 and
a set of 10 fingerprints is taken.
Some consular posts also have USCIS offices lo-
cated within the same building, which may reduce
waiver adjudication waiting time and facilitate
communication.
Waivers of inadmissibility are highly discretion-
ary—and most immigrant visa waivers require a
specific showing of extreme hardship to a USC or
LPR spouse or son or daughter—and are available to
overcome only some grounds of exclusion. For
THE FUNDAMENTALS OF LAWYERING AT CONSULAR POSTS
many grounds of inadmissibility such as aggravated
felonies and drug addiction, there are no waivers.
Visa Revocation and Termination of
Registration for an Immigrant Visa
Please note that visa issuance does not mean im-
mediate LPR status. A consular officer may revoke
an immigrant visa if the visa was obtained by fraud
or misrepresentation, or when subsequent informa-
tion reveals a ground of ineligibility prior to admis-
sion to the United States.49 DOS may not revoke a
visa after the applicant has been admitted to the
United States; however, it can be presumed that the
consular officer will notify the DHS that the visa
was issued in error, based on post-issuance informa-
tion and DHS will then be responsible for taking
appropriate action.
The regulations provide that an alien’s registra-
tion for an immigrant visa shall be terminated if,
within one year of being notified of the availability
of a visa, the alien fails to apply for the visa.50 One
year after that, if the applicant has not established a
basis for reinstatement, a termination of registration
notice will be issued.51 The consulate may allow re-
instatement after the notice is issued in extenuating
circumstances.
Entry to the United States
Once the immigrant visa is issued, the applicant
must enter the United States while the visa is still
valid. At the port of entry, the applicant is inspected.
INA §204(e) provides that an approved petition does
not guarantee admission, and INA §291 places the
burden to establish eligibility on the applicant. Once
admitted, the person’s passport is stamped by CBP
As of the date of entry, the person is considered a
lawful permanent resident, even though the alien
registration card will be sent in the mail later and
even though clients do not believe they are perma-
nent residents until the treasured “green card” is in
hand. If the applicant had an I-485 pending or an
“A” number with USCIS, it is critical to notify
USCIS that the applicant was issued an immigrant
visa with a new “A” number, withdraw the I-485,
and request file consolidation. The withdrawal proc-
ess can be very time consuming, as often USCIS
49
22 CFR §42.82.
50
22 CFR §42.83.
51
Id.
297
does not take action on the withdrawal request until
long after receipt.
NONIMMIGRANT VISAS
General Procedures and Considerations
Most aliens wishing to enter the United States on
a temporary basis to visit, study, work, and for other
purposes are required to obtain a nonimmigrant visa
from a U.S. consular post. There are a few notable
exceptions to the visa requirements. These involve
parolees, Canadians seeking entry in categories
other than E-1 and E-2, and aliens from specific
countries who are eligible for 90-day business or
pleasure visits pursuant to the Visa Waiver Program
(VWP). Waiting times to obtain an appointment for
a nonimmigrant visa interview can be found on
DOS’s website at http://travel.state.gov/visa/temp/
wait/tempvistors_wait.php. Consular posts are in-
structed to report visa appointment wait times on a
weekly basis, thus the information is generally cur-
rent, thus allowing attorneys to make timely plans
for visa applications. Note that almost all NIV issu-
ing consular posts require appointments for NIV
interviews. Each post procedure can be found in the
AILA’s The Visa Processing Guide and Consular
Post Handbook: Process and Procedure at U.S.
Consulates and Embassies or on DOS’s website at
http://usembassy.state.gov.
Petition approval by USCIS does not guarantee
visa issuance and visa issuance alone does not guar-
antee admission to the United States. Each applicant
for admission must establish his or her admissibility
to an inspector at a U.S. port of entry. It should not
be assumed that either visa issuance or admission is
pro forma but rather clients should be prepared for
the consular interview as well as the border inter-
view and be provided with succinct letters that ex-
plain the case, if explanation will facilitate proper
border processing.
A post-9/11 fallout is that DOS revoked the visa
exempt status of Canadian-landed immigrants from
former commonwealth countries.52 The many non-
immigrant visa categories are discussed in detail
elsewhere in these materials.
Another post-9/11 NIV processing impact is that
DOS is required to perform security clearances, for
males and females over 16 born in, nationals or citi-
zens of “State 5” countries and for males over the
52
68 Fed. Reg. 5190–94 (Jan. 31, 2003).
298 NAVIGATING THE FUNDAMENTALS OF IMMIGRATION LAW (2008–09 ED.)
age of 16 from the “List of 26” countries.53 Affected
individuals should plan on a delay in visa issuance,
as the security clearances in NIV cases are generally
not commenced until after the visa interview. In
some emergent circumstances and with appropriate
caveats, come consular officers will complete secu-
rity checks before the client leaves the United States
for an NIV interview. Since these checks began in
November 2001, the processing times have fluctu-
ated from a few days to many months. Most clear-
ances are being completed in less than 30 days. If
the clearance has taken longer than 30 days, attor-
neys need to be proactive in moving the case along.
Contact both the consular post and legalnet@
state.gov if the clearance takes more than 30 days. A
listing of categories of applicants subject to security
clearances is classified information and gleaned
from anecdotal information sharing among members
of the bar.
Applicants from the PRC and Russia often en-
counter delays in visa issuance if a consular officer
determines that the Technology Alert List (TAL) is
applicable to the applicant’s field or study or work
(e.g., astrophysics). Counsel should research TAL
considerations prior to a client departing and should
counsel clients who may be subject not to depart
from the United States to apply for a visa. The TAL
covers a broad spectrum of technology and skills.
The clearance cable for the TAL is known as a Visa
Mantis. Most other List of 26 and State 5 applicants
will undergo a Visas Condor or Visas Donkey
check.54 Information on the types of security checks
by nationality can be found in the Foreign Affairs
Manual and in the AILA’s The Visa Processing
53
“State 5” countries are the countries that have been deter-
mined by the U.S. government to be state sponsors of terror-
ism—including Cuba, Iran, North Korea, Sudan and Syria.
Iraq was included in this list until Oct. 20, 2004, and Libya
until Oct. 26, 2006; Iraqis and Libyans might still undergo
intense security checks. DOS has not provided a list of the
countries subject to additional security clearances for males
over the age of 16, but anecdotal evidence suggests that the
“List of 26” includes Afghanistan, Algeria, Bahrain, Bangla-
desh, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait,
Lebanon, Libya, Malaysia, Morocco, Oman, Pakistan, Qatar,
Saudi Arabia, Somalia, Sudan, Syria, Tunisia, the United
Arab Emirates, and Yemen.
54
For more information on security issues, see T. L. Walsh,
“The Land of CLASS, TIPOFF, Mantis, Condors and Don-
keys: Demystifying Security Advisory Opinions, Biometrics
and Government Databases involved in the Consular Proc-
essing Framework,” Immigration & Nationality Law Hand-
book 671 (AILA 2005–06 ed.).
Guide and Consular Post Handbook: Process and
Procedure at U.S. Consulates and Embassies, which
is published annually.
Both DOS and attorneys agree that the process-
ing times for SAOs and National Crime Information
Center (NCIC) hits has been greatly reduced in re-
cent years. Visas Condor checks to which males
from the “List of 26” countries and males and fe-
males from the “T-5” countries are subject now take
approximately two weeks and most Visas Mantis
clearances take about 15 days. In addition, Visas
Mantis clearances can be valid for up to a year if
purposes of study, work, or visit purpose remains
unchanged.55
Yet another process, Facial Recognition, has
been added to both NIV and IV applicants on a pilot
basis. The procedure is presently in effect for ten
pilot program countries. This process generally adds
a day or two to the processing time. It will be de-
ployed worldwide in the near future. We are aware
that this process currently applies to Philippine citi-
zens, Venezuelan citizens and Colombian citizens.
In addition, Facial Recognition procedure applies to
applicants for whom ten prints are not obtained.
NIV Application Procedure
All applicants for NIVs must file the electronic
Form DS-156, with a photograph meeting then-
current DOS specifications, as well as Form DS-
157. In addition, documentation of eligibility for the
visa sought, as well as proof of payment of the ap-
plication fee (MRV fee) must accompany the visa
application. All applicants for F, J, and M visas must
file Form DS-158 as well. At most consulates, the
MRV fee is paid at a designated local bank prior to
submission of the NIV application. In addition, there
may be a visa issuance fee pursuant to the reciproc-
ity schedule between the United States and the ap-
plicant’s country of nationality.5657
55
Media Note, “Some Visa Mantis Clearances Extended”
published on AILA InfoNet Doc. No. 05021460 (posted Feb.
14, 2005).
56
On Feb. 11, 2005, after extensive interagency consultation
with DHS, DOS extended the maximum validity of the Visas
Mantis clearances for F-1, J-1, H-1B, L-1, O-1, and B-1/B-2
visas. This allows applicants to re-apply for visas without
undergoing frequent Mantis checks, if returning to the previ-
ous program of study or professional assignment. However,
consular officers have discretion, if warranted to initiate a
Mantis SAO.
continued
THE FUNDAMENTALS OF LAWYERING AT CONSULAR POSTS
Presumption of Immigrant Intent
INA §214(b) is historically responsible for the
overwhelming majority of NIV denials. This section
provides that every alien is presumed to be an immi-
grant until he or she establishes to the satisfaction of
the consular officer at the time of the application for
a visa, and the inspector at the time of the applica-
tion for admission to the United States that he or she
qualifies as a nonimmigrant.
The presumption of immigrant intent is inappli-
cable to H-1B, H-4, L-1, and L-2 visa applicants. In
addition, H-1B, H-4, L-1, L-2, E, O-1 and O-3 bene-
ficiaries are exempt from proof of foreign residence.
O-1 beneficiaries are treated similarly to H-1B bene-
ficiaries.58 However, there have been isolated in-
stances when a consular post was permitted to deny
The validity period for F-1 applicants is up to the length
of the academic program, to a maximum of four years. How-
ever, if the student changes programs, the clearance is no
longer valid and a SAO will be initiated if the applicant ap-
plies for a new visa. H-1B, J-1, and L-1 applicants are eligi-
ble for clearances valid for the duration of their approved
activity to a maximum of two years. If the nature of the for-
eign national’s activities changes, the clearance ceases to be
valid and a new SAO is required.
B-1/B-2 applicants can receive a Mantis clearance valid
for one year, provided that that the original purpose for
travel, as stated in the visa application has not changed on
subsequent trips.
These extended validities apply to any applicants who
are re-applying for a visa within 12 months of the previously
issued visa. DOS estimates that this change will allow the
agency to cut in half the total number of Mantis clearances
processed each year. As before, consular officers may issue
visas to applicants who have received Mantis clearance ac-
cording to the applicant’s reciprocity table, but in no case for
longer than 12 months. Visas for Chinese and Russian Man-
tis applicants, which account for approximately 76 percent of
all Mantis cases, can only be issued as single-entry visas
valid for three months. For an excellent article on security
clearances, T. L. Walsh and B. Wolfsdorf, “Secure Borders,
Open Doors: Consular Processing Issues in 2006,” The Visa
Processing Guide and Consular Posts Handbook, 21 (2006),
available at www.ailapubs.org. The new clearance validity
periods do not apply to applicants from T-5 countries.
57
See DOS’s website at http://travel.state.gov/reciprocity/
index.htm to determine NIV reciprocity fees. The reciprocity
fee must be paid separately and will only be collected if the
application is approved.
58
INA §101(a)(15)(O)(i)—defining O-1 aliens without im-
posing a foreign residence requirement; 8 CFR
§214.2(o)(13); 9 FAM 41.55 N5.1–5.3 (stating that a pend-
ing immigrant visa petition is not a reason to deny an O-1
visa at a consulate).
299
an O-1 visa on the basis of reason to believe the ap-
plicant would not comply with the O-1 petition, a
clear end run around §214(b). In addition, consular
officers who cannot refuse visas under §214(b) and
who share generalized anxiety about visa issuance
may “return a petition to USCIS” with a request for
consideration for revocation. This is a harsh meas-
ure, as such “returned petitions” cause punitive de-
lays in visa issuance as most petitions are eventually
affirmed by USCIS. Moreover, most issues can be
resolved at post. DOS recently issued two cables
that provide strong ammunition in several common
§214(b) situations, including instances where a prin-
cipal alien is issued a visa (F-1 and J-1) and depend-
ents are refused.59
The removal of INA §214(b) as the most com-
mon ground of refusal of H-1B, H-4, L-1, and L-2
visas has facilitated the entry of business nonimmi-
grants, but visas can still be refused to H-1 and L
applicants under §221(g), i.e., on the ground that the
applicant has failed to provide sufficient documenta-
tion to justify visa issuance. In such circumstances,
approved NIV petitions may be returned by the con-
sular officer to USCIS for consideration for revoca-
tion. The same strategies as are outlined in the IV
section above should be considered.
Jurisdiction; Applications by Mail
Visas by mail, whether the applicant is in the
country of application or not, is seldom available in
the post-9/11 world with the virtual elimination of
the personal interview waiver (PAW), security
clearances, TAL clearances, and requirements for
collection of information for biometric identifiers.
On July 7, 2003, DOS published an interim rule60
severely curtailing the numbers and kinds of situa-
tions in which consular officers may waive the per-
sonal appearance for nonimmigrant visa applicants.
Consular posts were stripped of discretion in deter-
mining persons or classes of persons to be exempt
from interview. DOS decreed a small class of appli-
cants for whom a waiver of appearance could be
granted. Please check consular post websites to de-
termine eligibility for a personal appearance waiver
as implementation of the policy varies among posts.
59
See DOS Cable 274068 (Dec. 28, 2004), published on
AILA InfoNet at Doc. No. 05032279 (posted Mar. 22, 2005);
9 FAM 41.11 N4.3.
60
68 Fed. Reg. 40127 (July 7, 2003).
300 NAVIGATING THE FUNDAMENTALS OF IMMIGRATION LAW (2008–09 ED.)
DOS strongly encourages consular officers to ac-
cept jurisdiction over the nonimmigrant visa applica-
tion of an applicant who is physically present in the
consular district, but not a resident of the consular
district, and expects that the authority of a consular
officer to reject such applications to be rarely used.61
This regulation directs that the decision to accept
an NIV application from an applicant not having a
place of residence in the consular district be gener-
ally at the sole discretion of the consular post. DOS
has strongly recommended that a consular officer
seldom, if ever, reject discretionary jurisdiction over
NIV applications from out-of-district applicants
physically present in the jurisdiction, unless there is
a valid reason for doing so.62 Note that males from
the “List of 26” countries and males and females
from “State 5” countries are generally not currently
permitted to apply for NIVs at border posts in Mex-
ico, but some may apply at certain Canadian posts, a
policy always subject to change without notice. De-
spite this recommendation, occasionally a consul
will reject an out-of-district NIV application citing
workload or lack of familiarity with conditions in
the applicant’s home country or simply deny a visa
under §221(g) as an expression of reluctance to ad-
judicate an out-of-district application. However, lack
of familiarity with home country conditions as a pre-
text for a §221(g) denial in the era of the Internet
and e-mail communication arguably lacks a solid
basis as a ground of refusal.
Practice Pointers for Obtaining Acceptance
of Jurisdiction Over an Out-of-District NIV
Application Other Than at Border Posts
ƒ If the applicant could apply for an NIV in his or
her home country, be prepared to explain why the
applicant is not applying for a visa in person in
his or her home country. Document legitimate
business or personal reasons for your client’s
presence in the third country.
ƒ Consuls at low volume, low fraud posts are nor-
mally more likely to accept discretionary juris-
diction. This practice occurs because consuls at
such posts will often have the time to discuss the
application and review documentation in advance
of presentation.
ƒ Consular officers at border posts generally do not
pose this question as the presence of third coun-
61
22 CFR §41.101(a).
62
See 9 FAM 41.101 N2.2.
try nationals (TCN) in Canada or Mexico to ap-
ply for a visa is understood and routine.
ƒ Document ties to the home country before you
contact the third country consular post. Docu-
ment the applicant’s family ties, employment and
business interests, and property ownership in the
home country, as well as the U.S. visa histories
of the applicant and all immediate family mem-
bers, if §214(b) applies.
ƒ Document employment opportunities available to
the applicant in his or her home country upon
completion of study or employment in the United
States in F and J cases.
ƒ In some circumstances, it is possible to obtain a
letter from the commercial officer or political of-
ficer at the U.S. embassy in the home country,
verifying the strength of the ties of the applicant
and his or her family to the home country. Such
letters may be helpful in overcoming denials un-
der §214(b) in a third country.
ƒ Before contacting a third country consular post,
be certain that your client can obtain a visa, if
necessary, to enter the third country and can re-
main in the country during processing time.
“Out-of-District” NIV Applications in
Canada and Mexico; 22 CFR §41.112(d)
Appointments for third country nationals in the
United States may be made at the border posts in
Canada online at www.nvars.com or in Mexican
border posts at https://www.usvisa-mexico.com/visa-
web/index.jsp. Third country nationals may apply at
border posts under the rules listed on the website of
each post which vary substantially among posts.
Border posts are given great latitude in determin-
ing the types of visas and categories of applicants
they will accept. Thus, it is important to check the
websites or e-mail or fax the posts about a particular
type of case.
Note that applicants who have any days of
unlawful presence may only apply for future non-
immigrant visas in the home country unless the ap-
plicant benefits from a blanket exception (some phy-
sicians) or individual exceptional circumstances ex-
ception. Out of status cases are accepted at border
posts on a case-by-case basis and counsel should be
prepared to demonstrate to the consular officer that
the out-of-status time was not a knowing, willful,
violation of the immigration laws.
Some border posts will not accept NIV applica-
tions from TCN applicants who last entered the
THE FUNDAMENTALS OF LAWYERING AT CONSULAR POSTS
United States in B-2 status and changed status to
another status such as F, H, or L.
Border post policies are fluid, and are subject to
change without notice. Counsel would be prudent to
check with other AILA attorneys who represent cli-
ents at border posts regarding current policy.
Generally, Mexican border posts will not accept
visa applications from applicants who do not speak
English or Spanish. In addition, some Mexican posts
and all Canadian posts decline to accept jurisdiction
over third country nationals applying for E-1 or E-2
visas. It is suggested that you have a very solid E
case where the applicant has previously been issued
an E visa and demonstrate that the relevant evidence
is based on a U.S. business before approaching a
consular post in Mexico.
If the applicant is in the United States, one
should consider a visa application at a consular post
in Canada or Mexico, if eligible. Applicants and
their employers in the United States often prefer
travel to Canada or Mexico to apply for nonimmi-
grant visas because the right to counsel is honored at
many border posts, in addition to savings in time and
resources. There is growing support for a return to
the right to counsel at a number of Mexican posts
and it is hoped that the right to counsel will once
again be the policy in Mexico. The right of counsel
to be present at NIV interviews is honored at most
Canadian posts. One of the historical benefits of
border processing was the ability of many TCN ap-
plicants in Canada and Mexico to re-enter the United
States with a valid I-94 and other documents if a
visa was denied under §221(g), known as automatic
visa revalidation. However, on April 1, 2003, DOS
rescinded the right of automatic visa revalidation for
TCNs applying for visas at border posts and no per-
son from a “State 5” country can benefit from auto-
matic visa revalidation even if no application for a
U.S. visa is made in the contiguous territory or adja-
cent island.63
Practice Pointer: Applicants from the T-5 coun-
tries and males from the List of 26 countries may
make an appointment at a Mexican border post or in
Canada. However, it should be expected that the ap-
plicant or counsel would be called by the Mexican
Appointment Center to cancel the appointment in
many cases. The reluctance of Mexican border posts
to entertain NIV applications from third country na-
tionals who require a security clearance is due to the
63
22 CFR §41.112(d)(2)(ii); 8 CFR §214.1(b).
301
fact that the Mexican Permits generally used to such
applicants is valid only for 72 hours and if the visa
cannot be issued in 72 hours, there could be prob-
lems with Mexican immigration. However, if the
applicant has a Mexican visa stamp in the passport,
it is possible to apply for an NIV at a Mexican bor-
der post with the consent of the consular officer.
Many consular posts in Canada are receptive to
TCN applications where security clearances are re-
quired.
INA §222(g): Restrictions on
Shopping for Justice in NIV Cases
INA §222(g) eliminated the ability of some visa
applicants to present their visa applications at a bor-
der post or any third country consular post if the ap-
plicant was unlawfully present in the United States
for even a day, as indicated by the I-94 departure
record or I-797. Such applicants are prohibited from
applying for a nonimmigrant visa at U.S. consular
posts outside the country of the applicant’s citizen-
ship or last permanent residence (or, if there is no
office in such country, at such other consular office
as the Secretary of State shall specify). This prohibi-
tion is permanent.
There are exceptions for “extraordinary circum-
stances.”64
As currently interpreted by USCIS and DOS,
§222(g) applies only if the alien is admitted to the
United States on the basis of a nonimmigrant visa. If
the alien is paroled into the United States, enters
under the VWP, or under other provisions not re-
quiring visas (i.e., Canadian nationals), §222(g) is
not applicable. Of course, such persons may be sepa-
rately inadmissible under §212(a)(9)(B)(i) if the pe-
riod of unlawful presence exceeds 180 days. Section
222(g) applies only to visa overstays. If an alien vio-
lates status in some other way, but does not remain
in the United States beyond his or her period of au-
thorized stay, the alien is not subject to §222(g).
INA §222(g) applies only to persons who have
been admitted to the United States until a date cer-
tain as reflected on the I-94 document and have
overstayed that date. In contrast, persons admitted
for “duration of status” (most commonly F and J
nonimmigrants) do not fall under §222(g), despite
having remained in the United States beyond the
termination of their program or having otherwise
violated the terms of their status, provided: (a)
64
22 CFR §41.101(c).
302 NAVIGATING THE FUNDAMENTALS OF IMMIGRATION LAW (2008–09 ED.)
USCIS has not made a formal determination of a
status violation in adjudicating an application for an
immigration benefit (typically an application to ex-
tend or change nonimmigrant status); and (b) an
immigration judge has not made a similar determi-
nation in a deportation/removal proceeding. At the
same time, be aware that, even if the applicant does
not technically fall under §222(g), the consular offi-
cer may seek to deny the visa on some other ground,
particularly where the alien has been out of status
for a long period or has committed a serious status
violation.
Also, INA §222(g) is not applicable where the
USCIS favorably exercises its discretion and ap-
proves an application for change or extension of
status retroactively (nunc pro tunc). INA §222(g) is
applicable to an alien whose timely filed exten-
sion/change of status application is denied by
USCIS following the expiration date on the I-94
document regardless of the reason for the denial.
Section 222(g) no longer applies to an alien who
files a timely extension/change of status application
with USCIS, but departs the United States while the
application is pending. Nonimmigrants admitted to
the United States until a specific date who apply for
extension or change of status, but who then leave the
United States after the I-94 expires and before the
decision on the application has been issued, are not
subject to §222(g) if they can establish to the satis-
faction of a consular officer that they were in an au-
thorized period of stay prior to departure. The appli-
cation must be timely and nonfrivolous, and the
alien must not have engaged in unauthorized em-
ployment. When these requirements have been met,
the alien’s nonimmigrant visa should not be
voided.65
The filing of a bona fide request for asylum is a
period of authorized stay under §222(g) if filed be-
fore the alien’s authorized stay has expired and the
alien does not work without authorization. In addi-
tion, if USCIS grants an out of status alien voluntary
departure, this period of voluntary departure is con-
sidered as a period of authorized stay, but does not
cure any prior unauthorized stay.66 Aliens granted
temporary protected status (TPS) prior to the expira-
65
Memorandum from M. Pearson, Executive Associate
Commissioner, Office of Field Operations (Mar. 3, 2000),
published on AILA InfoNet at Doc. No. 00030773 (posted
Mar. 7, 2000); INA §222(g).
66
Id.
tion of their authorized stay, are not subject to INA
§222(g) if they remain in TPS status throughout
their stay in the United States. If the TPS grant is
made after the alien’s authorized stay has expired, or
if the alien stays in the United States after the TPS
status has expired, then §222(g) would apply.
DOS has instructed its consular officers that in
the majority of cases, there is not a convenient or
reliable method to determine at the time of the visa
interview whether an alien who formerly held F or J
status might have interrupted studies or exchange
program participation. Based on this factor—as well
as the fact that §222(g) is a procedural (venue) stat-
ute, rather than a substantive ground of inadmissibil-
ity—consular officers have been advised that they
should not undertake lengthy questioning of appli-
cants to determine if they interrupted F or J status or
benefited from a reinstatement, “unless in the course
of normal visa processing the possibility of a previ-
ous interruption of studies/reinstatement becomes
apparent through information otherwise routinely
obtained (i.e., DS-156 or routine interview revealing
a lengthy F/J stay in the United States far in excess
of that normally required to complete the studies
undertaken).”67
Practice Pointer: Notwithstanding the Visa Of-
fice instructions to consular officers to refrain from
extensive interrogations and investigations of
whether an applicant has acquired unlawful presence
time, good lawyering mandates that counsel send the
client to a visa interview with strong evidence that
the applicant has continuously maintained status
since April 1, 1997, if such is the case. Note that
neither an I-20 for students nor an IAP-66/DS-2019
form for exchange visitors is legal evidence of such
status. These forms should be accompanied by tran-
scripts and letters from the schools for students and
letters from the exchange program for exchange
visitors stating the dates the applicant was a student
or exchange visitor in good standing.
It is also important to send clients to visa inter-
views with a timeline of the clients’ immigration
history in a short bulleted summary and supporting
documents, such as copies of all I-797 forms, I-94
forms, transcripts for students, letters from employ-
ers, W-2 forms and tax returns for those who have
previously been employed by the petitioning em-
ployer. Counsel should also submit a short brief re-
67
DOS Cable, 97 State 12764 (Jan. 23, 1997), reprinted in
74 Interpreter Releases 83–84 (Jan. 27, 1997).
THE FUNDAMENTALS OF LAWYERING AT CONSULAR POSTS
garding the difference between unlawful presence
and out-of-status time and describe any time client
has spent in these statuses.
CONSULAR REVIEW
Doctrine of Nonreviewability of Decisions
U.S. consular officers have exclusive authority to
adjudicate applications for visas. The source of this
authority is INA §104(a), which provides that:
The Secretary of State shall be charged with the
administration and enforcement of the provisions
of this Act ... relating to ... the powers, duties and
functions of diplomatic and consular officers of
the United States except those powers, duties and
functions conferred upon the consular officers re-
lating to the granting or refusal of visas. (empha-
sis added).68
The general rule is that a consular officer’s deci-
sion denying a visa is not subject to administrative
or judicial review.69 The doctrine of nonreviewabil-
ity is premised upon Congress’s plenary power over
the admission of aliens.70
Administrative Review
Administrative review of consular decisions is
narrowly circumscribed. The regulations provide
that a consular officer’s decision may be reviewed at
the consular post by the chief of the section, or re-
ferred to DOS in Washington, D.C. for an advisory
opinion.71 If there is a difference of opinion between
the adjudicating consular officer and the chief of the
section at the post, the case will be automatically
referred for an advisory opinion. However, in prac-
tice, a supervisory consular officer either persuades
the adjudicating officer that a visa application was
68
Professor Nafzinger in his law review article, “Review of
Visa Denials by Consular Officers,” 66 Wash. L. Rev. 1
(1991), observes that “the precise legislative intent behind
this language is unclear .... Probably the quoted language in
§104(a) was intended not to immunize visa determinations
from review, but rather to confirm by implication the power
of the attorney general, rather than the secretary of State, to
undertake the review.” Id. at 24.
69
Garcia v. Baker, 765 F. Supp. 426 (N.D. Ill. 1990); United
States ex rel. Ulrich v. Kellogg, 30 F.2d 984 (D.C. Cir.
1929), cert. denied, 279 U.S. 868 (1929); Li Hing of Hong
Kong, Inc. v. Levin, 800 F.2d 970 (9th Cir. 1986).
70
See Fiallo v. Bell, 430 U.S. 787 (1977); see also Centeno
v. Shultz, 817 F.2d 1212 (5th Cir. 1987).
71
22 CFR §42.81.
303
wrongly denied or may assume jurisdiction over the
application and issue the visa. In practice, the latter
rarely occurs. A consul’s decision with respect to
findings of fact is conclusive. As a result, advisory
opinions are issued only as to issues of law. An ad-
visory opinion regarding an issue of law is binding
upon the consular officer.72
A request for an advisory opinion may be sub-
mitted to the Advisory Opinions Division of the
Visa Office by the applicant or by the consular offi-
cer. A letter setting forth a statement of the facts and
the section(s) of law and/or regulations involved
should accompany a request by the applicant. If nec-
essary, a brief discussing the issues and applicable
legal authority should be included. It is crucial that
counsel attempt to resolve the case at the consular
post first, before filing a request for an advisory
opinion. Always copy the consular post on your re-
quest for an advisory opinion.
By presenting additional documents or facts, ad-
vancing legal arguments, or revisiting the relevant
issues involved, the applicant’s attorney can some-
times persuade the consular officer to reverse an
otherwise negative preliminary finding or unfavor-
able decision. The attorney’s intervention, whether
personally at the consulate, or thereafter as part of
the review process, offers the opportunity for a lim-
ited review. It is critical that counsel become in-
volved in the advisory opinion process early to en-
sure all evidence for the applicant is presented be-
fore DOS makes a decision.
DOS takes the position that advisory opinions are
confidential and will not release the opinion to the
applicant or attorney. DOS will furnish only a letter
notifying the attorney or the applicant of the deci-
sion and a summary of the basis for the decision.
Judicial Review
Only a few cases and decisions indicate that an
aggrieved visa applicant is not totally without a judi-
cial remedy. In Abourezk v. Reagan,73 the plaintiffs
were able to challenge a DOS advisory opinion. The
court declined to order DOS to actually issue a
visa,74 but the court ordered that a visa may not be
refused in violation of law. In another case, Legal
72
22 CFR §42.81(d).
73
785 F.2d 1043 (D.C. Cir. 1986), aff’d mem., 108 S. Ct. 252
(1987) (per curiam).
74
City of New York v. Baker, 878 F.2d 507, 512 (D.C. Cir.
1989).
304 NAVIGATING THE FUNDAMENTALS OF IMMIGRATION LAW (2008–09 ED.)
Assistance for Vietnamese Asylum Seekers v. DOS,75
the court concluded that Vietnamese visa applicants
were discriminated against by the U.S. consulate in
Hong Kong in violation of INA §202(a), which pro-
hibits discrimination in the issuance of an immigrant
visa because of the person’s nationality or place of
residence. The case was remanded for further pro-
ceedings. In a subsequent decision,76 the court held
that the case was not moot as to the individually
named plaintiffs ultimately granted visas, and the
case was remanded for reconsideration on the re-
quest for class certification. In a related case, Vo Van
Chau v. DOS,77 the district court issued a prelimi-
nary injunction requiring that the immigrant visa
application for the plaintiff applicant be processed at
the U.S. consulate in Hong Kong under pre-
December 1994 policies.
However, there is some reason for optimism that
the doctrine can be indirectly attacked with the same
result as direct review of consular visa denials. In
Brar vs. Ridge,78 with AILA member Russell Pritch-
ett as counsel to the plaintiff, the court indirectly
ordered consular action by ordering USCIS to
transmit instructions to the consular officials to fol-
low the FAM and that denying the visa on the
grounds of the previous denial would constitute an
abuse of discretion and would be contrary to law.
The visa was issued. Attorneys are encouraged to
explore ways in which consular visas denials can be
challenged indirectly pursuant to §403 of the Home-
land Security Act which grants the Secretary of
Homeland Security exclusive authority, through the
Secretary of State, to control the issuance of visas by
consular officers. As the Secretary of Homeland Se-
curity cannot defeat judicial review by claiming its
decisions are immune from judicial review, this is an
avenue worth pursuing.
75
45 F.3d 469 (D.C. Cir. 1993).
76
74 F.3d 1308 (D.C. Cir. 1996).
77
891 F. Supp. 650 (D.C. 1995).
78
Brar vs. Ridge, No. C04-1401 JLR (W.D. Wash., 12/22/04).
In an unpublished decision in 1990, Shimizu v.
DOS,79 a federal district court held that it had juris-
diction under the Administrative Procedure Act to
review a consul’s decision revoking the issuance of
a nonimmigrant (treaty investor) visa. On the merits,
the court ruled that the consul improperly revoked
the visa and ordered its re-issuance.
Success has been achieved in some cases through
the commencement of a district court action, culmi-
nating in settlements in favor of aggrieved visa ap-
plicants. The lead plaintiff should be a U.S. citizen
or a resident for the purpose of conferring standing.
This type of litigation obviously requires a creative
theory to overcome the probability of an early dis-
missal on jurisdictional grounds.
CONCLUSION
As the policies of DHS, DOS, and USCIS con-
tinue to change in a time of increased security con-
cerns where the legitimate security concerns of the
United States must be balanced with the needs of
American businesses and academic institutions, it is
more important than ever that practitioners remain
current and well-informed regarding consular and
immigration procedures. It is crucial that we safe-
guard our clients’ interests, and fully advise them
regarding their options for attaining their desired
status in the United States.
79
CV 89-2741-WMB (C.D. Cal. May 31, 1990).
 TAB 11
Removal Proceedings: The New Practice Rules
 32nd ANNUAL CONFERENCE ON
IMMIGRATION AND NATIONALITY
LAW
October 23, 2008
Marriott Plaza San Antonio, TX
1 Hour including .25 hours ethics

FACULTY PRESENTERS
• MAURICE HEW, JR.
ASSISTANT PROFESSOR
THURGOOD MARSHALL SCHOOL OF LAW
3100 CLEBURNE AVENUE
HOUSTON, TX 77004
713-313-1006 (Tel)
713-313-1191(Fax)
mahew@tmslaw.tsu.edu

• NICOLAS CHAVEZ
CHAVEZ,GALLAGHER, & VALKO, LLP.
10830 N Central Expwy Ste 400
Dallas, TX, 75231
(214) 251-8011 (Tel)
(214) 251-8021 (Fax)
nickchavez@keyvisa.com

Board Certified in Immigration & Nationality Law,

Texas Board of Legal Specialization

1
 REMOVAL PROCEEDINGS:
THE NEW PRACTICE RULES
• Introduction
• Topic presentation on Immigration Court Practice Manual
(ICPM)
• ICPM 150+pages;13 chapters complete with appendices;
Cannot give you a lecture on all pages in one hour. No
line by line. View from the fox hole or from the trenches
• EOIR Website OPPM(Operating Policies and Procedures
Manual) April 23
23, 2008 (Application to pending cases)
March 10, 2008 (Pro Bono Reps).
• Our observations should not be a substitute for your own
due diligence read for yourself

CHAPTER 1
SCOPE OF RULES
EOIR

• Agency within the Department of Justice responsible for adjudicating

immigration cases. Specifically, under delegated authority of the AG, EOIR
interprets,
p , and administers federal immigration
g laws,, byy conductingg
immigration court proceedings, appellate reviews, and administrative hearings
• In 2006 the Attorney General instructed the Director of the EOIR in
consultation with the IJ’s to issue a practice manual out of “ public’s desire for
greater uniformity”
• 02/28/2008 EOIR published the Immigration Practice Manual which provides
uniform procedures, recommendations, and requirements for persons who
present cases before the immigration courts. The practice manual went into
effect on April 1, 2008 but later postponed to July 1, 2008, local operating
procedures are no longer used. But…..
• While the requirements set forth in the manual are binding on the parties who
appear in the immigration courts, the IJ has the discretion to direct otherwise
in a particular case. 1.1 Scope of Practice Manual (b) Purpose
• Revisions- The Office of the Chief Immigration Judge reserves the right to
amend, suspend, or revoke the text of the manual 13.3 Updates to practice
manual. The Immigration Manual has been referred to as a living document.

2
 CHAPTER 2
APPEARANCES BEFORE THE IMMIGRATION COURT
• EOIR28 must be filed in the following situations and always on opposing parties; First appearance by
hearing or pleading, motion, application, etc.; Filing of a motion to reopen; Filing a motion to reopen to
rescind an in absentia order; The filing of a motion to reconsider; On remand; Change in attorney address;
Upon reinstatement following attorney suspension or expulsion from practice
• Attorneyy has obligation
g to notifyy the EOIR if subject
j to discipline
p in any
y jjurisdiction
• EOIR-28 always in front-never filed as an exhibit
• All bar information must be provided even if not an active member of that bar.
• Alien’s change of address-Whether represented or not, aliens in removal proceedings need to notify the
immigration court within 5 days of any address changes. Notification to the Department of Homeland
Security does not suffice. Change of address or telephone number must be on Form EOIR-33/1C.
• Attorney’s change in address –done by written notice on the court and new EOIR-28 for each case Not
done on EOIR 33/1C
• If limited appearances (bond only) must be specifically allowed by IJ but if EOIR-28 form is submitted it is
for the entire proceedings; 2.3(j)-On behalf of need an EOIR for “on behalf of” attorney
• Multiple attorneys are acceptable but must submit separate notices of appearance.
appearance One attorney must be
designated as the primary attorney or the notice attorney who will receive all mailings.
• Law firms or offices do not represent clients; only individuals.
• Substitution of counsel –new Attorney must submit written or oral motion accompanied by new EOIR-28.
Motion should contain 1) The reason for substitution; 2) Proof of service on prior counsel and DHS atty; 3)
Evidence of client’s consent; Fact problem (attorney leaves firm dispute on who keeps the case)
• Extension requests based on substitution of counsel is not favored

CHAPTER 3
FILINGS WITH THE COURT

• Receipt rule- An application or document is not deemed filed unless it is received by the Immigration Court. No Mailbox rules. Post
mark, courier etc. doesn’t count.
• The Immigration Court does not accept faxes and email. No electronic filing
• OPPM- memo regarding pending cases. No deadline pre 7/1 08. ICPM does not change the court’s set filing dates. But if not detained,
and no filing date set by the court
court, the ICPM probably applies.
applies OPPM provides examples to transition.
transition
• Master Calendar Hearings, Non detained filings must be submitted at least (15) days before the hearing if requesting a ruling at or prior
to the hearing. Response due 10 days after. Detained Cases- deadlines determined by the immigration court 3.1(b)(i)
• Individual Calendar Hearings
Non detained cases filings must be submitted at least 30 days in advance of the hearing, Responses due 15 days after the original filing
with the immigration court. Detained cases-Deadlines determined by the Immigration Court
• Computation of time-Calendar days are counted including Saturday, Sunday, and holiday
Deadline with a specific date- File a brief by October 23, 2008. If 10/23/2008 were a Saturday, Sunday, or holiday then the deadline is
the next business day.
Deadline prior to hearing-If required to file a document at least 30 days prior to a hearing then the day of the hearing is day 0 and the
day before is day 1. Count Sat,Sun, and holiday. If deadline falls on Sat/Sun or holiday then the next business day.
Deadline following hearings The day of the hearing is day 0 and the day following the hearing is day 1. Count Sat,Sun, and holiday. If
deadline falls on Sat/Sun or holiday then the next business day.
Deadline following IJ decisions-Appeals and motions. The day the IJ renders an oral decision or mails a written decision is day 0. The
following day is day 1. Statutory and regulatory deadlines are calculated with calendar days. Count Sat,Sun, and holiday. If deadline
falls on Sat/Sun or holiday then the next business day
day.
Responses If required to file a response within 15 days after received by the immigration court. The day of receipt by the court is day 0.
The following is day 1. Count Sat,Sun, and holiday. If deadline falls on Sat/Sun or holiday then the next business day.
• Format of filings and supporting documents-order of documents, and order for applications of relief see pages 42-44). Indexed,
paginated, letter tabs on right side of page; staple in the top left corner ;2 hole punch; NO ACCO fasteners or paper clips
Supplemental filings previous ended pg 50 start the supp pg 51; Front-desked defective filings failure to submit a fee; proof of
service; language, signature, and format requirements; illegibility for filing; no cover page; no proposed order
• Certificate of Service-Appendix G-2/Sample translator Certificate H-1

3
 CHAPTER 4
Hearings before Immigration JUDGES

• Electronic devices-No device of any kind, including cameras, video recorders, cassette recorders may be
used by any person other than the immigration judge.
• But,, all persons
p includingg p
parties and members of the p
press mayy keepp in their p
possessions laptop
p p
computers, cellular telephones, electronic calendars, etc and use them during the hearing unless it
disrupts the hearing or records the hearing.
• Master Calendar Hearings-In lieu of oral pleadings, written pleadings are acceptable (Appendix L has a
sample written pleading.)
• Individual hearings-If a pre-hearing conference is not held, parties are strongly encouraged to file - briefs
even if not ordered by an immigration judge. Pre-hearing statements are in the best interest of the party.
Format and contents similar to a Circuit Court brief.
• Statement of facts, statement of issues, burden of proof, summary of argument, argument, conclusion and
remedy sought.
• Relief from removal-party
removal party with burden must submit a criminal history chart . Explain the significance of the
arrests and convictions. Because there is a “must” I presume it is required. Rule 3.3(f).
• Chart must provide the arrest date, court docket number, charges, disposition, immigration consequences.
• Sample chart at Appendix O.
• Subpoena of witnesses Appendix N.

CHAPTER 5
MOTIONS BEFORE THE IMMGRATION COURT

• FORM- There is no official form for filing a motion. Motion must have a cover page accurately describing the motion and
comply with chapter 3 filing requirements and must be accompanied by a proposed order. 5.2(b) form Appendix Q
proposed order 3.3(c)(i) order of docs
• All post decision motions need to be accompanied by a new EOIR 28 even if you were previously the trial counsel. A new
EOIR-28 needs to be filed.
• Some motions require a filing fee-made payable to DHS, receipt to be filed with the court
• Motions to reopen/reconsider/in absentia governed by statute or regulations
• Applications for relief should accompany the motion and supporting documents 8 CFR §1003.23(b)(3).
• Opposing parties position –Party filing a motion should make a good faith effort to ascertain opposing party’s position on
the motion. Description of the efforts made to contact opposing party to be put in the motion.
• Rule 5(c) motion to change venue-need to submit an application for relief with the motion- Stephen Griswold on Aila June 5,
2008 Leveling the Playing Field: Interpretations and Strategies Based on the New Immigration Court Practice Manual
• Mtn to change venue rule 5.10 (c) admission or denial of factual allegations and charges
• Multiple motions-Parties are strongly discouraged from filing compound motions, motions that require two separate
requests.
• Responses to motions 5.13 A motion is deemed unopposed unless timely response is made but parties should be advised
that unopposed motions are not necessarily granted.

4
 Chapter 6
Appeals of Immigration Judge Decisions
• The BIA has nationwide jurisdiction to review decisions of immigration
judges.
• File an EOIR -26 notice of appeal with the BIA. Must be received bythe
Board not later than 30 calendar days following the IJ decision.
• BIA practice manual. www.usdoj.gov/eoir/biainfo.htm
• Jurisdiction of appeal see BIA practice manual Appendix K (where to file)
• If the opportunity to appeal is knowingly and voluntarily waived, the IJ
decision is final.
• Generally,
Generally a party waiving an appeal can not retract,
retract withdraw,
withdraw or undo
that waiver. But if you wish to challenge a waiver of appeal, you need to
file a timely motion with the IJ or file an appeal with the BIA exaplining
why the appeal waiver was not valid. Matter of Patino, 23 I&N De. 74 (BIA
2001).

Chapter 7
Other Proceedings Before Immigration Judges

• Immigration judges have jurisdiction over other proceeding

than removal proceedings.
• For example, rescission, deportation and exclusion, and
limited proceedings (credible fear proceedings, reasonable
fear proceedings, claimed status review, asylum only and
withholding only proceedings)
• Judge Griswold was rather proud about this chapter of the
ICPM.
ICPM
• We will not cover these individual proceedings but simply
know that there are resources which might assist you in
handling the “other proceedings”.

5
 Chapter 8
Stays of Removal
• A stay prevents the DHS from executing an
order
d off removal,l d deportation,
t ti or exclusion.
l i
• Stays are automatic in some situations and
discretionary in others. See INA
§§240(b)(5)(c), 240(c)(7)(C)(iv), 8 CFR §§
1003.2(f),
( ), 1003.6,, 1003.23(b)(1)(v),
( )( )( ),
1003.23(b)(4)(ii) for when stays are automatic
or discretionary.

Chapter 9
Detention and Bonds
• Ijs have no jurisdiction over the location of
d t ti or conditions
detention diti
• DHS must notify the IJ when an alien is moved
between detention facilities and when alien is
released
• Request for a bond hearing may be made in
writing, or at the discretion of the IJ, may be
made orally or by telephone

6
 Chapter 10
Discipline of practitioners

• EOIR has authority to impose disciplinary sanctions of the attorneys or accredited

representatives who violate the rules of professional conduct before the Immigration Courts,
the BIA and the DHS
DHS.
• Starts with the filing of a complaint by any individual or an immigration judge. Form EOIR-44.
• Definition of practitioner is rather broad; includes non-attorneys susch as my students and
accredited representatives, law graduates, and reputable persons
• The disciplinary procedures do not apply to the attorneys who represent the DHS. Write to
the DHS office of the chief counsel where the immigration court is located.
• Once a complaint is filed the EOIR Office of General Counsel (OGC) performs an investigation-
• OGC can take no action
– Issue a letter or informal admonition to the practitioner
– Enter into an agreement in lieu of discipline
Initiate disciplinary proceedings by filing a notice of intent to discipline
Attorney has 30 days to answer from the date of service to file a written answer
– This rest of the chapter continues to describe the procedures, the hearing itself, the penalties and
the reinstatement process.

Chapter 11
Forms
• Forms are listed in chapter 11.
• Strongly encourage forms printed on a specific
color of paper but not requried.

7
 Chapter 12
Freedom of Information Act (FOIA)
• FOIA provides the public with access to federal agency
records.
• Parties to immigration court proceedings do not need t o file a
FOIA to review the file. Arrangement to be made with the
Immigration Court having control of the record
• Non Parties file a FOIA request with the EOIR
office of General Counsel –No form but must
be made in writing 28 CFR §16.1.

Chapter 13
Other Information
• Practice Manual updated periodically
• Public
P bli iinputt
EOIR welcomes and encourages public comments
United States Department of Justice
Executive Office for Immigration Review
Office of the Chief Immigration Judge
5107 Leesburg Pike,
Pike Suite 2500
Falls Church, VA 22041
Attn: Practice manual committee

8
 TAB 12
Immigration to Criminal Law
 The University of Texas School of Law

Presented:
2008 Immigration Law Conference

October 23-24, 2008

San Antonio, Texas

Criminalizing Immigration Law

Ira J. Kurzban

Continuing Legal Education • 512-475-6700 • www.utcle.org

 CRIMINALIZING IMMIGRATION LAW

By Ira J. Kurzban1

I. INTRODUCTION

For over a hundred years, Congress has been legislating to prevent the entry or
remove non-citizens from the United States who commit crimes. The Act of March 3,
1875, 18 Stat. 477, provided, for the first time, the exclusion of “convicts” from the
United States. Within a short time, thereafter, Congress broadened the category to
include general areas of criminal conduct. The term “crimes involving moral turpitude”
first appeared in the law as early as 18912

But it was in the last twenty years, that Congress, in the anti-drug context, began
creating extremely harsh penalties for those who commit crimes in the United States. The
Omnibus Anti-Drug Abuse Act of 1988 created the category of an “aggravated felony”3
whose crime resulted in deportation. In 1990 and again in 19944 Congress expanded the
definition of “aggravated felony” to include a broader range of criminal conduct.
However, it was not until the Illegal Immigration Reform and Immigrant Responsibility
Act of 19965 that Congress radically altered how lawful permanent residents and non-
residents would be treated upon the commission or conviction of an aggravated felony.
As a result of the 1996 Act, the definition of aggravated felony was broadened to include
virtually all felonies. The consequences, even for a long term lawful permanent resident,
who commits an “aggravated” felony includes mandatory detention and deportation with
virtually no relief. Aggravated felons, as a practical matter, are today denied all forms of
asylum, withholding of removal, adjustment of status, voluntary departure, and all other
relief except the right to invoke the Convention Against Torture if he can prove that he
would be tortured upon return to his country of origin. At the same time, Congress and
the Board of Immigration Appeals have redefined a “conviction” for immigration
purposes so that expunged, withheld, and even vacated conviction, under certain
circumstances, remain convictions for immigration purposes. See e.g. Matter of
Marroquin, 23 I&N Dec. 705 (AG 2005) [vacating/setting aside or expunging a judgment
as a result of a rehabilitative statute such as Cal. Penal Code §1203.4(a), like a deferred
adjudication statute, is deemed to be a conviction under INA §101(a)(48) as a result of
section 322(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of
2006]; Matter of Roldan, 22 I&N Dec. 512 ( BIA 1999) [treatment under rehabilitative

1
Ira J. Kurzban is a partner in the law firm of Kurzban, Kurzban, Weinger and Tetzeli, P.A. of Miami,
Florida and is the author of Kurzban’s Immigration Law Sourcebook, the most widely used one-volume
source on immigration law in the Untied States. This article is copyrighted by Mr. Kurzban and the
American Immigration Lawyers Association and may not be duplicated or copied without their permission.
2
Harms, Brian, Redefining “Crimes of Moral Turpitude: A Proposal to Congress, 15 Georgetown
Immigration Law Journal 259 (2000).
3
The Omnibus Anti-Drug Abuse Act of 1988, Pub. Law 100-690, 102 Stat. 4181 (Nov. 18, 1988)
4
The Immigration Act of 1990, Pub. Law 101-649, 104 Stat. 4978 (Nov. 29, 1990) and The Violent Crime
Control and Law Enforcement Act of 1994Pub. Law 103-322, 108 Stat. 1796 (Sept. 13, 1994)
5
Pub. Law 104-208 Div. C, 110 Stat. 3009, 3046-3724 (Sept. 30, 1996).

1
or first offender statutes are still convictions for immigration purposes]; Matter of
Pickering, 23 I&N Dec. 621 (BIA 2003) reversed on other grounds Pickering v.
Gonzales, 465 F.3d 263 (6th Cir. 2006) [if court vacates a conviction solely for
immigration purposes unrelated to a procedural or substantive error in the plea, the
vacatur remains a conviction for immigration purposes]. A sentence was also redefined
to include a suspended sentence so that a person may be convicted of an aggravated
felony because he pleaded guilty to a theft crime where he received a suspended sentence
of one year, even if he was never sentenced to any time in prison. INA §101(a)(48)(B)

Because of the complex nature and “high stakes” of an immigration conviction,

some immigration lawyers became specialists in advising criminal defense lawyers about
the “immigration consequences” of a criminal plea. A plea to the wrong charge could
mean a long-term lawful permanent resident was subject to mandatory detention and was
deported without any relief. A plea to a different charge could mean that the resident was
facing deportation but had some relief available to him. Or a plea to yet a different crime,
even if the lawful permanent resident serves time in prison, could mean he faced no
immigration consequences for his crime. Criminal defense lawyers were often
insensitive to these distinctions and treated non-citizen clients in the same manner as their
US citizen clients. Their goal was to have the criminal defense client obtain the most
minimal sentence in a plea bargain. The client might then plead to a crime for which he
spends no time in jail, only to find out that he is taken into immigration custody for
months or years until deported. The criminal defense lawyer, looking at the short term
result of “no-jail time” often exposed the client to immigration detention n (without
bond) and permanent banishment from the U.S. Immigration lawyers also had to advise
their criminal law counterparts that the existence of a U.S. citizen spouse or family, or the
fact that the person was a successful businessman, was not a basis to allow him to remain
in the U.S. if he pleaded guilty to certain offenses, even if he never spent a day in jail
serving his sentence.

In the last year, however, a dramatic shift has occurred. Rather than focus solely
on non-U.S. citizens who have committed crimes, immigration authorities have decided
to criminalize the conduct of immigrants who traditionally would not have been charged
with any crimes. As part of an “interior enforcement” strategy that includes cooperation
with state and local authorities called Operation Streamline, Immigration and Customs
Enforcement (ICE), in cooperation with other federal authorities, have arrested and
criminal charged immigrants with federal crimes principally ranging from false
identification to being “found in” the U.S. after removal.

The number of criminal prosecutions makes a compelling case that a new

enforcement paradigm has been developed in the treatment of non-citizens. In April
2008, fifty-eight percent (58%) of all federal prosecutions were immigration related.6 In
March, there were 9,350 immigration prosecutions represents an increase of seventy-two
point one percent (72.1%) over the previous year and 193.1% from 5 years ago. 7 In the

6
Transactional Records Access Clearinghouse (TRAC) at Syracuse University,
http://trac.syr.edu/immigration/reports/188
7
Id.

2
Western District of Texas prosecutions, primarily related to illegal re-entry, went from
626 in January, 2008 to 3,555 in March, 2008. 8 DHS’ own documentation on July 9,
2008 record a 530% increase in criminal worksite enforcement from 2004 to May 31,
2008. In this analysis DHS notes that of the 863 criminal worksite arrests in 2007, ninety
two (92) were in the companies’ “supervisor chain.” DHS, Leadership Journal (July 9,
2008).

The defining moment in this paradigm shift came on May 12, 2008 when 900 ICE
and other agents raided Agriprocessors Inc., the nation’s largest Kosher slaughterhouse
and meat processing plant in Postville, Iowa. The raid, according to the search warrant
application, was based principally on “no-match” letters sent by the Social Security
Administration to the company. There were 389 people detained who were principally
from Guatemala and Mexico. Of those detained, 307 were criminally charged. The
charges were using a false Social Security number and aggravated identity theft, the latter
charge carrying a minimum two year sentence. The hapless immigrants were offered a
“plea” to the false social security charge and a 5 month jail sentence instead of waiting in
jail for what could be 6 to 8 months for a trial on the more serious charge of aggravated
identity theft, where they could receive a several year sentence. Virtually all took the
plea.9

As a result of this shifting paradigm, it is no longer a matter of immigration

lawyers educating criminal defense lawyers. Rather, immigration lawyers must be
educated in issues concerning traditional criminal law questions such as unlawful search
and seizure, rights against self-incrimination, plea bargaining, and statutory and
constitutional defenses to certain federal crimes.

II. CRIMINAL STATUTES RELATED TO IMMIGRATION

A. Conviction for Re-entry or Being Found in U.S. After Deportation—8 U.S.C.

§1326.
1. Re-Entry—Any person who has been denied admission, excluded, deported or
removed or has departed the U.S. while an order of exclusion, deportation or removal
is outstanding and thereafter enters, attempts to enter, or is found in the U.S. is
subject to a 2-year penalty and $1,000 fine. 8 U.S.C. §1326(a). If exclusion,
deportation, or removal was subsequent to commission of 3 or more misdemeanors
involving drugs, crimes against the person, or both, or if it was subsequent to a non–
aggravated felony, the maximum penalty is 10 years. 8 U.S.C. §1326(b)(1). If
exclusion, deportation or removal was subsequent to a conviction for commission of
an aggravated felony, the maximum penalty is 20 years. 8 U.S.C. §1326(b)(2). If
deported, excluded or removed as an alien terrorist, there is a 10-year nonconcurrent
penalty. 8 U.S.C. §1326(b)(3), (4). The Supreme Court has determined that under

8
Id.
9
This information was obtained from a widely circulated detailed statement by one of the 26 federally
certified interpreters who were brought to Waterloo Iowa for the prosecutions. Camayd-Freixas, Erik,
Interpreting after the Largest ICE Raid in US History: A Personal Account (June 13, 2008).

3
§1326(b)(2) the commission of an aggravated felony prior to the commission of the
offense is a sentencing enhancement, not an element of a distinct offense. Since it
does not create a separate crime, the government is not required to charge, in the
indictment, the fact of the earlier conviction for the aggravated felony. Almendarez-
Torres v. U.S., 523 U.S. 224 (1999). See also U.S. v. Martinez, 434 F.3d 1318, 1323
(11th Cir. 2006) [Supreme Court decisions in Apprendi, Blakely, Booker, and
Shepard, while casting doubt on Almendarez, have not overruled it, so uncharged
prior convictions can be used to enhance defendant’s sentence]; U.S. v. Quintana-
Quintana, 383 F.3d 1052, 53 (9th Cir.) reh’g and reh’g en banc denied, 383 F.3d
1052 (9th Cir. 2004) cert. denied, 125 S.Ct. 1100 (2004) [Blakely did not alter
Almendarez-Torres]; U.S. v. Perez-Olalde, 328 F.3d 222, 224 (6th Cir. 2003)
[following Almendarez-Torres, enhancement need not be charged]; U.S. v. Martinez-
Villalva, 232 F.3d 1329, 1331–32 (10th Cir. 2000). [following Almendarez-Torres
and rejecting argument based on Apprendi v. New Jersey, 530 U.S. 466 (2000) that
issue of sentence enhancement must go to jury]; U.S. v. Rodriguez-Montelongo, 263
F.3d 429, 434–35 (5th Cir. 2001) [same in regard to due process challenge based
upon Apprendi]; U.S. v. Gonzalez-Ruiz, 369 F.Supp.2d 1151, 1153–54 (N.D. Cal.
2005) [the Supreme Court decision is Shepard v. U.S. does not alter Almendarez-
Torres].
However, where the sentencing court bases enhancement on something other than a
prior conviction, such as a subsequent removal, it does violate Apprendi. U.S. v.
Covian-Sandoval, 462 F.3d 1090, 1096–98 (9th Cir. 2006) [where sentencing court
relied on a removal order subsequent to a conviction that was not pleaded or proved,
it violated Apprendi because Almendarez-Torres allowed the court to consider only a
prior conviction in determining sentence enhancement as a prior conviction had
procedural safeguards. The court however found that the error did not violate
defendant’s substantial rights]. Also, where the government does allege the
conviction as a separate offense the conviction may be reversed unless the defendant
was indicted, convicted and sentenced for one crime. U.S. v. Rivera-Sanchez, 222
F.3d 1057 (9th Cir. 2000). A felony for purposes of §§1326(b)(1) & (2) is defined by
federal law under 18 U.S.C. §3559(a) and not by state law even if it was a state
conviction. U.S. v. Cordova-Arevalo, 456 F.3d 1229 (10th Cir. 2006) [although
Colorado third degree assault conviction is a misdemeanor under state law, it is
defined as a felony under federal law and therefore enhancement of sentence was
appropriate].
There is a split in the circuits as to whether “attempt” to enter is a specific intent
crime. Compare U.S. v. Rodriguez, 416 F.3d 123, 125–27 (1st Cir. 2005) [specific
intent not required for attempted illegal re-entry in light of language of §1326]; U.S.
v. Morales-Palacios, 369 F.3d 442 (5th Cir. 2004) [specific intent is not required for
attempted illegal re-entry because it is a regulatory crime]; U.S. v. Peralt-Reyes, 131
F.3d 956 (11th Cir. 1997) [specific intent not required] Gilbert v. U.S., 489 F.Supp.2d
150, 153–54 (N.D.N.Y. 2006) [attempted entry is not specific intent crime and person
who boarded train in Canada bound for NY was properly found guilty]; with U.S. v.
Gracidas-Ulibarry, 231 F.3d 1188 (9th Cir. 2000) (en banc) [specific intent is
required for attempt crime because “Congress intended to incorporate the well
established common law meaning of ‘attempt’ into §1326” and the government must

4
demonstrate that “the defendant had the purpose, i.e., conscious desire, to re-enter the
United States without the express consent of the Attorney General.”].
The 4 elements of a re-entry crime generally are: (1) alienage; (2) a valid
deportation/exclusion/removal order; (3) physical departure after
deportation/removal; and (4) voluntary re-entry free from official restraint. U.S. v.
Contreras Palacios, 492 F.3d 39 (1st Cir. 2007) [conviction upheld on challenge to
alienage where government produced as proof only the “A” file which contained
conflicting information]; U.S. v. Garcia, 452 F.3d 36 (1st Cir. 2006) [affidavit of
defendant in his Alien Registration File coupled with fingerprint card and warrant of
deportation were sufficient to establish prior deportation] U.S. v. Bahena-Cardenas,
411 F.3d 1067, 1072–73 (9th Cir. 2005) [finding evidence sufficient to sustain
elements of the crime including submission of warrant of deportation as proof of
physical removal notwithstanding Crawford’s prohibition on testimonial evidence
without cross-examination]; U.S. v. Torres-Villalobos, 487 F.3d 607, 612–13 (8th Cir.
2007) [conviction upheld against Crawford challenge to warrants of deportation];
U.S. v. Bello-Bahena, 411 F.3d 1083, 1088–91 (9th Cir. 2005) [reversed conviction
where jury instruction on lack of freedom from official restraint was not granted]. The
statute, to establish the crime of reentry, also requires that the government
demonstrate that the person reentered the U.S. without the permission of the Attorney
General. The defendant’s belief that he need not have the AG’s permission is
irrelevant. U.S. v. Rea-Beltran, 457 F.3d 695, 702 (7th Cir. 2006).
The lawfulness of the prior deportation order is not an element of the offense. U.S.
v. Alvarado-Delgado, 98 F.3d 492 (9th Cir. 1996) (en banc). But person physically
removed from the U.S. while a stay order was in effect is not “deported” under the
statute and cannot be tried for unlawful re-entry. U.S. v. Fermin-Rodriguez, 5
F.Supp.2d 157 (S.D.N.Y. 1998). A summary removal order under §1228(b) may
serve as the basis for an illegal re-entry and found-in charge. U.S. v. Calderon-
Segura, 512 F.3d 1104, 1107–08 (9th Cir. 2008) [use of expedited removal
proceedings under 8 U.S.C. §1228(b) do not violate equal protection when used as the
basis for a “found-in” charge after removal]; U.S. v. Garcia-Martinez, 228 F.3d 956
(9th Cir. 2000) [INS officers conducting both prosecutorial and adjudicative functions
is not violative of due process]; U.S. v. Benitez-Villafuerte, 186 F.3d 651 (5th Cir.
1999) [reversed district court order that had considered deportation order under
former §1228(b) on grounds that summary deportation meets minimum due process
notice requirements and the commingling of prosecutorial and adjudicative functions
is permissible]. For purposes of this statute, deportation also includes an agreement in
which a person stipulates to removal, whether or not the stipulation is during a state
or federal criminal trial. 8 U.S.C. §1326. Deportation for purposes of the statute
means physical removal not the entry of the order. U.S. v. Zelaya, 293 F.3d 1294,
1298 (11th Cir. 2002) [conviction upheld where aggravated felony arose after
deportation order but before physical deportation]. And a person cannot be charged
under §1326 who was not physically deported. U.S. v. Romo-Romo, 246 F.3d 1272
(9th Cir. 2001) [where Mexican evaded removal after his deportation order, he cannot
be charged with re-entry or attempted re-entry].
The making of a false claim to U.S. citizenship or lawful residency is not an
element of the crime. U.S. v. Barnes, 244 F.3d 331 (2d Cir. 2001). Intent to enter the

5
 U.S. unlawfully is also not an element of the crime. U.S. v. Carlos-Colmenares, 253
F.3d 276 (7th Cir. 2001) [specific intent to enter without AG’s consent is not
required]; U.S. v. Gonzalez-Chavez, 122 F.3d 15 (8th Cir. 1997); U.S. v. Henry, 111
F.3d 111 (11th Cir. 1997) [specific intent is not required); U.S. v. Guzman-Ocampo,
236 F.3d 233 (5th Cir. 2000) [Section 1326 requires only general intent in context of
“found-in” case]; U.S. v. Meraz-Valeta, 26 F.3d 992, 997 (10th Cir. 1994); U.S. v.
Champegnie, 925 F.2d 54 (2d Cir. 1991) [person’s subjective, good faith, but
mistaken belief as to legality of entry is irrelevant]; U.S. v. Espinoza-Leon, 873 F.2d
743 (4th Cir. 1989) [only general intent required]; Pena-Cabanillas v. U.S., 394 F.2d
785, 788–89 (9th Cir. 1968).
Where matters are an element of the offense, however, each must be stated in the
indictment or the conviction is not valid. U.S. v. Cabrera-Teran, 168 F.3d 141 (5th
Cir. 1999) [conviction under former version of statute reversed where government
failed to list on the indictment that the person was previously arrested as well as
deported]. But see U.S. v. Landeros-Mendez, 206 F.3d 1354 (10th Cir. 2000) [where
deportation order not introduced jury could still infer from physical expulsion and
officer’s testimony that deportation occurred]; U.S. v. Pena-Renovato, 168 F.3d 163
(5th Cir. 1999) [where person removed but charged with being deported conviction
stands because removal proceedings and deportation proceedings are the same]. U.S.
v. Nunez-Rodelo, 378 F.3d 877 (9th Cir. 2004) [same]; U.S. v. Lopez-Gonzalez, 183
F.3d 933 (9th Cir. 1999) [same]. The government must also allege an overt act in
seeking a conviction under §1326. U.S. v. Resendiz-Ponce, 425 F.3d 729 (9th Cir.
2005) [reversed conviction for attempted unlawful entry where no overt act was
alleged in the indictment]. If all elements are not proven the conviction will also be
reversed. U.S. v. Bahena-Cardenas, 70 F.3d 1071 (9th Cir. 1995) [where no warrant
of arrest was served under former statute, defendant’s self-deportation while case
before BIA was not enough to trigger conviction]; U.S. v. Morales-Tovar, 37
F.Supp.2d 846 (W.D. Tex. 1999) [government failed to prove that defendant sought
to re-enter or had specific intent to enter in violation of law where he simply
presented himself at the border and asked how he could replace his green card].
1.a. Statutory language requires the AG’s permission before re-entering—8 U.S.C.
§1326(a)(2). Under the former INA §212(a)(6)(B) (now INA §212(a)(9)(A)(ii)), a
person seeking to re-enter the U.S. 5/10 years after removal does not have to seek
the AG’s permission before entry. However, the courts, following the current
statute generally do require the AG’s permission before re-entry. U.S. v. Marte,
356 F.3d 1336, 1341–42 (11th Cir. 2004) [upheld conviction for attempted re-
entry where applicant did not file I-212 seeking permission to re-apply]. At least
one court has found that the government may prove that the AG did not give
permission to re-enter by submitting a certificate of nonexistence of record of
permission in the files of the INS. U.S. v. Sanchez-Milam, 305 F.3d 310 (5th Cir.
2002). The government is also not required to prove that the defendant did not
have a visa. The government need only prove: (1) that the defendant is an alien
who was previously arrested and deported; (2) that he re-entered the U.S.
voluntarily; and (3) that he failed to secure the express permission of the AG. U.S.
v. Martus, 138 F.3d 95 (2d Cir. 1998) [re-entry at checkpoint without being
stopped by INS is not express permission of the AG]; U.S. v. Joya-Martinez, 947

6
 F.2d 1141 (4th Cir. 1991) [proof as to whether person had visa is not an element
of the crime and therefore burden is on defendant; Court also rejected selective
prosecution claim]; U.S. v. Mancebo-Santiago, 875 F.Supp. 1030 (S.D.N.Y.
1995) [court rejected defense that person was admitted at the border where he did
not inform border officials of previous deportation]; U.S. v. Soto, 106 F.3d 1040
(1st Cir. 1997) [person re-entering with visa but without AG’s permission after
deportation is culpable]; U.S. v. Trevino-Martinez, 86 F.3d 65, 68 (5th Cir. 1996)
[same]; U.S. v. Asibor, 109 F.3d 1023, 1035–36 (5th Cir. 1997) [rejecting good
faith defense based on approved I-130 petition]. The defendant’s belief that he
need not have the AG’s permission is irrelevant. U.S. v. Rea-Beltran, 457 F.3d
695, 702 (7th Cir. 2006). Similarly, it is not a defense that subsequent to re-entry
a person became a temporary resident. U.S. v. Gutierrez-Alba, 128 F.3d 1324,
1327–28 (9th Cir. 1997) [immigration amnesty subsequent to entry not a defense].
But see U.S. v. Fermin-Rodriguez, 5 F.Supp.2d 157 (S.D.N.Y. 1998) [where
person unlawfully removed despite automatic stay while case on appeal to circuit
court, he was not deported within meaning of statute]; U.S. v. Idowu, 105 F.3d
728 (D.C. Cir. 1997) [where defendant waited outside U.S. for 5 years and re-
entered on green card, allowed to withdraw plea and defend on INA
§212(a)(6)(B)]. See also U.S. v. Smith-Baltiher, 424 F.3d 913, 922–25 (9th Cir.
2005) [in certain circumstances there may be a mens rea defense that defendant’s
reasonable belief he was a U.S. citizen did not require the AG’s consent to cross
into U.S.].
1.b. Re-entry may extend beyond the 12-mile limit—U.S. v. De Leon, 270 F.3d 90 (1st
Cir. 2001) [person stopped by Coast Guard in ship stopped beyond the 12-mile
limit subject to prosecution notwithstanding the Convention on the Territorial Sea
and the Contiguous Zone, Article 24].
1.c. Constitutionality of §1326 has been upheld—U.S. v. Bahena-Cardenas, 411 F.3d
1067, 1072–73 (9th Cir. 2005 [not unconstitutional under Apprendi on theory that
prior deportation/removal hearing is an element of the offense and it requires a
lower standard of proof and less procedural protections]; U.S. v. Martinez, 434
F.3d 1318, 1323 (11th Cir. 2006) [Supreme Court decisions in Apprendi, Blakely,
Booker, and Shepard, while casting doubt on Almendarez, have not overruled it,
so uncharged prior convictions can be used to enhance defendant’s sentence];
U.S. v. Hernandez-Guerrero, 147 F.3d 1075 (9th Cir. 1998) [finding Congress has
inherent powers to criminalize immigration matters].
1.d. Failure to establish entry and existence of official restraint as a defense—A
conviction requires an entry under traditional standards which includes freedom
from official restraint. U.S. v. Lombera-Valdovinos, 429 F.3d 927 (9th Cir. 2005)
[where defendant was observed before he entered U.S. and upon seeking to enter
went straight to a border patrol officer and said he wanted to go before an IJ and
go to jail, he was never free from official restraint, and charge of attempted illegal
entry could not be sustained]; U.S. v. Bello-Bahena, 411 F.3d 1083, 1088–91 (9th
Cir. 2005) [reversed conviction where jury instruction on lack of freedom from
official restraint was not granted]; U.S. v. Gonzalez-Torres, 309 F.3d 594, 597–99
(9th Cir. 2002) [where defendant was under observation before crossing the

7
 Mexican border his conviction was reversed because he had not made an entry];
U.S. v. Castellanos-Garcia, 270 F.3d 773, 775 (9th Cir. 2001) [person does not
commit unlawful entry when s/he is under “constant observation by government
authorities” from the time of physical entry until the time of arrest]. But see U.S.
v. Vela-Robles, 397 F.3d 786 (9th Cir. 2005) [official restraint preventing
occurrence of entry does not arise when defendant triggers sensor a border]; U.S.
v. Hernandez-Herrera, 279 F.3d 1213, 1218–19 (9th Cir. 2001) [where there was
tracking of defendant as he crossed the Mexican border but not continuous visual
surveillance, he made an entry]; The crime of attempted entry may be charged
even if the person makes an entry. U.S. v. Rivera-Relle, 333 F.3d 914 (9th Cir.
2003) [held that person may be convicted of attempt even if he has actually
completed the crime]. Also, a person may be convicted of “attempted entry” even
if he is under surveillance when he seeks to enter. U.S. v. Leos-Maldonado, 302
F.3d 1061 (9th Cir. 2002).
1.e. Justification as a defense—If person had no legal alternative to violating the law
because, for example, he was fleeing persecution, s/he may have a justification
defense. U.S. v. Nwene, 20 F.Supp.2d 716, 720–22 (D.N.J. 1998) [justification is
an affirmative defense that requires a showing that there was no legal alternative
to violating the law; that the harm to be prevented was imminent; and that there is
a direct causal relationship between defendant’s actions and the avoidance of
harm]; But see U.S. v. Castro-Cabrera, 534 F.Supp.2d 1156, 1162 (C.D. Cal.
2008) [evidence that defendant sought to return because his mother was dying or
his cultural assimilation in the U.S. are irrelevant to the charges and a motion in
limine was granted]; U.S. v. Grieveson, 110 F.Supp.2d 880 (S.D. Ind. 2000)
[person required by arrest warrant to appear in state court could not obtain jury
instruction of a “reasonable belief” defense].
1.f. Duress as a defense—This defense requires a showing that there is: (1) an
immediate threat of death or serous bodily injury; (2) a well-grounded fear that
the threat will be carried out, and (3) no reasonable opportunity to escape the
threatened harm. U.S. v. Portillo-Vega, 478 F.3d 1194, 1197–1202 (10th Cir.
2007) [where respondent was in the U.S. for over three months before reporting
his circumstances and therefore did not surrender as soon as the claimed duress
had lost its coercive force, the district court did not abuse its discretion in denying
the defense].
1.g. Consent as defense—U.S. v. Hermoso-Garcia, 413 F.3d 1085, 1088–89 (9th Cir.
2005) [court entertained but rejected that approval of I-130 constituted consent to
re-enter the U.S.].
1.h. Double Jeopardy as defense—U.S. v. Castillo-Basa, 483 F.3d 890 (9th Cir. 2007)
[double jeopardy attaches so that a perjury charge arising out of first trial cannot go
forward where jury, in order to acquit him of illegal reentry, had to have decided
that testimony was truthful].
1.i. Citizenship as a defense—A person who derived U.S. citizenship cannot be
charged with a crime under §1326, because alienage is an element of the crime.
U.S. v. Smith-Baltiher, 424 F.3d 913, 920–22 (9th Cir. 2005) [reversed conviction
where defendant was denied right to present evidence of acquisition of citizenship

8
 at birth]; U.S. v. Gomez-Orozco, 188 F.3d 422 (7th Cir. 1999) [withdrawal of
guilty plea permissible where person discovered they may be derivative citizen];
U.S. v. Castro-Cabrera, 534 F.Supp.2d 1156, 1162 (C.D. Cal. 2008) [evidence
that defendant sought to return because his mother was dying or his cultural
assimilation in the U.S. are irrelevant to the charges and a motion in limine was
granted but evidence that he may be a derivative citizen is relevant and
admissible]; But see U.S. v. Guerrier, 428 F.3d 76 (1st Cir. 2005) [district judge
did not err in granting motion in limine to strike defendant’s derivative citizenship
defense where he could not proffer facts that he qualified]; U.S. v. Cervantes-
Nava, 281 F.3d 501 (5th Cir. 2002) [claim that derivative citizenship statute
violated equal protection in his case does not assist defendant because even if
statute was stricken as unconstitutional it would not result in defendant receiving
citizenship].
1.j. Lacking mens rea as a defense—U.S. v. Smith-Baltiher, 424 F.3d 913, 923–25
(9th Cir. 2005) [in certain circumstances there may be a mens rea defense that
defendant’s reasonable belief he was a U.S. citizen did not require the AG’s
consent to cross into U.S.].
1.k. Suppression of evidence—The circuits are split as to whether a defendant’s
immigration file or identity can be suppressed. U.S. v. Bowley, 435 F.3d 426,
430–31 (3d Cir. 2006) (and cases cited therein) [defendant has no possessory
interest or reasonable expectation of privacy in his immigration file kept by the
government; absent egregious circumstances referred to in Lopez Mendoza, the
file or identity will not be suppressed]. See also U.S. v. Orozco- Gonzalez, 60
F.Supp.2d 599 (W.D. Tex. 1999) [evidence of the defendant’s unlawful status can
not be suppressed in an illegal re-entry case]. But see U.S. v. Guevara-Martinez,
268 F.3d 751 (8th Cir. 2001) [suppressing fingerprints in an illegal re-entry case].
2. Found In—A person “found in” the United States after having been deported is
subject to criminal penalties under 8 U.S.C. §1326(a)(2). The “found in” language
refers to being found by federal not state officials, and a person, for statute of
limitations purposes, is deemed to be found in the U.S. when the federal official
either knows of or, “with the exercise of diligence typical of law enforcement
authorities, could have discovered the illegality of the defendant’s presence.” U.S. v.
Clarke, 312 F.3d 1343, 1346 (11th Cir. 2002); U.S. v. Scott, 447 F.3d 1365 (11th Cir.
2006); But see U.S. v. Gordon, 513 F.3d 659, 663–65 (7th Cir. 2008) [rejected
“constructive knowledge” standard where person entered U.S. with “green card” that
he knew was no longer valid and by doing did not put immigration on notice that he
was illegal]; U.S. v. Herrera-Ordones, 190 F.3d 504, 510 (7th Cir. 1999) [found in
requires that the DHS discover the deported person’s physical presence in the U.S.
and that they ascertain the person’s identity (as illegal) and status (as one who re-
entered after deportation)]. However, a person cannot be indicted for being “found in”
the U.S. when he was not physically present in the U.S. at the time of his indictment.
U.S. v. Thomas, 492 F.Supp.2d 405 (S.D.N.Y. 2007) [defendant who illegally
reentered the U.S. after removal but left the U.S. from Dec. 1999 to Dec. 2006 when
he was stopped in transit at LAX airport could not be indicted in September 2006 for
being found in the U.S. because he was not in the U.S. at the time of the indictment].

9
To be convicted of a found-in crime, the government must prove beyond a reasonable
doubt that the defendant entered the U.S. voluntarily and had knowledge that he was
committing the underlying act that made his conduct illegal–entering or remaining in
the United States after being deported. U.S. v. Salazar-Gonzalez, 458 F.3d 851, 855–
58 (9th Cir. 2006) [district court erred, but conviction not reversed, where court failed
to give instruction on voluntariness and knowledge]. But see U.S. v. Hernandez-
Hernandez, 519 F.3d 1236 (10th Cir. 2008) [rejected intoxication and “blacked-out”
defense because it does not make it any more or less likely that he was innocently
carried across the border against his will]. A person stopped at the border of the U.S.
or who did not make an entry into the U.S. because he was never free from official
restraint cannot be charged under 8 U.S.C. §1326(a)(2) as a person “found in” the
country, U.S. v. Zavala-Mendez, 411 F.3d 1116, 1118–21 (9th Cir. 2005) [where
defendant presented himself at the Alaskan border station that was physically a short
distance inside the U.S., his conviction was reversed]; U.S. v. Gonzalez-Torres, 309
F.3d 594, 597–99 (9th Cir. 2002) [where defendant was under observation before
crossing the Mexican border his conviction, was reversed because he had not made an
entry]; U.S. v. Pacheco-Medina, 212 F.3d 1162 (9th Cir. 2000) [where defendant was
under surveillance and captured within seconds after he crossed the border and
therefore within official restraint at all times he did not enter U.S. and therefore he
was not “found in”]; U.S. v. Ruiz-Lopez, 234 F.3d 445 (9th Cir. 2001) [where one
officer testified he encountered defendant at the border station and the arresting
officer could not remember the arrest, the conviction was reversed for lack of
sufficient evidence]; U.S. v. Angeles-Mascote, 206 F.3d 529 (5th Cir. 2000); U.S. v.
Canals-Jimenez, 943 F.2d 1284 (11th Cir. 1991) [court also questioned whether
“found in” provision is void for vagueness]; U.S. v. Ayala-Ayala, 470 F.Supp.2d 281
(W.D.N.Y. 2007) [person turned away at Canadian border and the presents himself to
immigration at U.S. border cannot be charged with being “found in” U.S.]. But see
U.S. v. Cruz-Escoto, 476 F.3d 1081, 1085–86 (9th Cir. 2007) [where defendant was
caught running 100–150 yards inside the U.S. but before permanent post he did enter
and conviction was upheld]; U.S. v. Ramos-Godinez, 273 F.3d 820 (9th Cir. 2001)
[where defendant was out of sight for two significant periods while crossing Mexican
border he made entry and therefore could be charged as “found in” U.S.]. Even if a
person cannot be charged under the “found in” provision, s/he could be charged as a
person who attempted re-entry. U.S. v. Cardenas-Alvarez, 987 F.2d 1129, 1132–33
(5th Cir. 1993) [person stopped at inspection station could be charged with attempted
re-entry but not found in]. However, a person can be charged with being “found in”
the U.S. even if s/he did not enter illegally and even if the government does not allege
or prove entry. U.S. v. Rivera-Sillas, 417 F.3d 1014, 1019–20 (9th Cir. 2005)
[government need not plead nor prove entry to convict on a “found-in” charge]; U.S.
v. Pina-Jaime, 332 F.3d 609 (9th Cir. 2003) [previously deported defendant who was
paroled into U.S. for one day to attend custody hearing violated the “found in”
provision by staying beyond that day]; U.S. v. Parga Rosas, 238 F.3d 1209, 1213 (9th
Cir. 2001) [limiting language in Pacheco-Medina and not requiring proof of entry for
“found in” charge]; U.S. v. Ortiz-Villegos, 49 F.3d 1435 (9th Cir. 1995); U.S. v. Gay,
7 F.3d 200 (11th Cir. 1993). The “found in” language has been determined not to be
void for vagueness. U.S. v. Palacios-Casquete, 55 F.3d 557, 560–61 (11th Cir. 1995);

10
 U.S. v. Ortiz-Gutierrez, 36 F.3d 80 (9th Cir. 1994); U.S. v. Meraz-Valeta, 26 F.3d
992, 996–97 (10th Cir. 1994); U.S. v. Whitaker, 999 F.2d 38, 42–43 (2d Cir. 1993).
However, the person’s physical presence at the time he was “found in” the U.S.
cannot be proven by judicial notice that he is at trial now. U.S. v. Herrera-Ochoa, 245
F.3d 495, 499–502 (5th Cir. 2001). The “found in” provision is “passive” and does
not raise any issue of voluntariness. U.S. v. Dixon, 327 F.3d 257 (3d Cir. 2003)
[found in police custody due to parole violation arising out of traffic violation]; U.S.
v. Salazar-Robles, 207 F.3d 648, 650 (9th Cir. 2000). [person found in state prison].
No specific intent is required in the commission of the crime. U.S. v. Berrios-
Centeno, 250 F.3d 294 (5th Cir. 2001) [statute only requires general intent]. Only
general intent is required and that may be inferred from the fact that the defendant
was previously deported and subsequently found in the U.S. U.S. v. Rivera-Sillas, 417
F.3d 1014, 1020–21 (9th Cir. 2005) [although §1326 is not a status or strict liability
offense, involuntary presence in the U.S. is the rare exception not the rule, and an
inference of voluntariness is raised where the person is found in the U.S. and has
raised no evidence to the contrary]; U.S. v. Berrios-Centeno, 250 F.3d 294, 299 (5th
Cir. 2001). The government does not have to allege in the indictment the exact date
the person is found in the U.S. U.S. v. Gondinez-Rabadan, 289 F.3d 630, 633–34 (9th
Cir. 2002). The provision has withstood an Eighth Amendment, cruel and unusual
punishment challenge, and a due process challenge on the grounds that it punishes
status and is a strict liability statute. U.S. v. Tovias-Marroquin, 218 F.3d 455, 456–57
(5th Cir. 2000) [found in is not a status crime]; U.S. v. Cupa-Guillen, 34 F.3d 860
(9th Cir. 1994) [statute requires intent to convict]. Venue arises where the DHS first
discovers the deported person. U.S. v. Hernandez, 189 F.3d 785 (9th Cir. 1999)
[dismissed indictment rejecting claim that person may be found in more than one
district]. But because “found in” is a continuing offense it may begin with a non-DHS
officer finding the deported person but must end when the DHS officer “finds” him or
her. U.S. v. Jimenez-Borja, 378 F.3d 853 (9th Cir. 2004) [found in begins when
deportee was found by local police and is a continuing offense that ends when he is
found by DHS]; U.S. v. Ruelas-Arreguin, 219 F.3d 1056, 1060–62 (9th Cir. 2000)
[court harmonizes Hernandez as prohibiting venue in post-crime venue and finds that
venue was proper either where the illegal entry was made or where the crime was
completed]; U.S. v. Santana-Castellano, 74 F.3d 593 (5th Cir. 1996) [found in is
continuing offense and person in prison on state charge falls within statute]. But see
U.S. v. Rivera-Ventura, 72 F.3d 277, 281–82 (2d Cir. 1995) [not a continuing
offense]. A party who conceals his whereabouts knowing he is subject to criminal
prosecution, however, tolls the statute of limitations. Id.
2.a. Venue as a defense—Under the Sixth Amendment, a defendant has the right to be
tried in the district where the offense was committed. See also Article III, §2, cl. 3
of the U.S. Constitution; Fed. R. Crim. P. 18; U.S. v. Cores, 356 U.S. 405, 407, 78
S.Ct. 875 (1958). When ICE placed a detainer on a defendant incarcerated in a
county jail, he was “found in” that district and it was error to try him in the district
he was transferred to when formally placed in ICE custody. U.S. v. Hernandez-
Hernandez, 291 F.Supp.2d 490 (W.D. Tex. 2003) [granted motion to dismiss for
improper venue].

11
3. It is not a defense that DHS’s original deportation letter incorrectly informed person
of the severity of the penalty upon re-entry. U.S. v. Meraz-Valeta, 26 F.3d 992, 996
(10th Cir. 1994) [person informed re-entry caused a two-year penalty, when in fact it
was a five-year penalty].
4. The 5-year statute of limitations (18 U.S.C. §3282) does not run on surreptitious or
fraudulent “entry” or “attempted entry”; it runs from the time the person is
apprehended. However, a “found in” violation begins when person is discovered by
DHS or should have been discovered by reasonable diligence. U.S. v. Gunera, 479
F.3d 373 (5th Cir. 2007) [where defendant filed TPS application and used his correct
name, date of birth and country of origin, DHS could not argue they did not have
knowledge of his illegality where they had a positive hit in a NAILS search]; U.S. v.
Lennon, 372 F3d 535, 541 (3d Cir. 2004) [illegal reentry begin when person presents
himself nonsurreptitiously at the port of entry even if immigration fails to react]; U.S.
v. Clarke, 312 F.3d 1343, 1347 (11th Cir. 2002) [reasonable diligence standard]; U.S.
v. Santana-Castellano, 74 F.3d 593, 598 (5th Cir. 1996) [should have know through
reasonable diligence standard]; U.S. v. Rivera-Ventura, 72 F.3d 277, 281–82 (2d Cir.
1995) [standard is that the government knew or with the exercise of diligence typical
of law enforcement authorities could have discovered the defendant’s illegal
presence]; U.S. v. Gomez, 38 F.3d 1031, 1037 (8th Cir. 1994) [standard is
immigration could have discovered the violation using diligence typical of law
enforcement officer]; But see U.S. v. Gordon, 513 F.3d 659, 663–65 (7th Cir. 2008)
[rejected “constructive knowledge” standard where person entered U.S. with “green
card” that he knew was no longer valid but in doing so did not put immigration on
notice that he was illegal]; U.S. v. Deleon, 444 F.3d 41, 51–53 (1st Cir. 2006) [where
defendant hid his identity upon reentry he could not argue that DHS had constructive
knowledge that he was in U.S. that would have triggered five year statute of
limitations]; See also U.S. v. Lopez-Flores, 275 F.3d 661, 663 (7th Cir. 2001) (And
cases cited therein); U.S. v. Coeur, 196 F.3d 1344 (11th Cir. 1999) [sentence
enhancement case where person was “found in” U.S. while serving time for illegal re-
entry]. The statute, however, may not be tolled simply because someone provides a
false identity to local police. U.S. v. Sotelo-Salgado, 201 F.Supp.2d 957 (S.D. Iowa
2002) [where INS knew of person’s presence and took no action to follow up or
check his identity statute was not tolled]. But see U.S. v. Clarke, 312 F.3d 1343 (11th
Cir. 2002) [for purposes of statute of limitations, the date of defendant’s discovery by
state officials cannot be imputed to INS officials]. But where person provides false
identity on entry to DHS he is not “found in” the U.S. until actually discovered by
DHS and therefore statute of limitations does not run until he is discovered. U.S. v.
Lennon, 372 F.3d 535, 540–42 (3d Cir. 2004); U.S. v. Acevedo, 229 F.3d 350 (2d Cir.
2000) [regarding person who entered by fraud through use of green card and was
subsequently found in the U.S.].
5. Double Jeopardy—Prosecution for improperly entering the U.S. under 8 U.S.C.
§1325(a) does not bar prosecution under the double jeopardy clause for being found
in U.S. illegally after deportation under 8 U.S.C. §1326(a). U.S. v. Flores-Peraza, 58
F.3d 164 (5th Cir. 1995). But see U.S. v. Mendoza, 390 F.Supp.2d 925 (N.D. Cal.
2005). Double jeopardy is not offended where criminal proceeding for illegal re-entry

12
 is brought because deportation is not a punishment. U.S. v. Garay-Burgos, 961
F.Supp. 1321 (D. Ariz. 1997).
6. Necessity Defense—The defense requires a reasonable jury to conclude: (1) that the
defendant was faced with a choice of evils and chose the lesser evil; (2) that he acted
to prevent imminent harm; (3) that he reasonably anticipated a causal relation
between his conduct and the harm to be avoided; and (4) that there were no other
legal alternatives to violating the law. U.S. v. Cervantes-Flores, 421 F.3d 825, 828–
29 (9th Cir. 2005) [denied necessity defense where defendant was HIV positive and
entered U.S. to see his children before he died on grounds that testing positive for
HIV did not constitute imminent harm].
7. Entrapment by Estoppel—To obtain estoppel, government must actively mislead.
U.S. v. Ramirez-Valencia, 202 F.3d 1106 (9th Cir. 2000) [where I-294 said “any
person who returned within 5 years is guilty of a felony “ the government has not
affirmatively misled because they did not say person could lawfully come in after 5
years]; U.S. v. Miranda-Ramirez, 309 F.3d 1255, 1261–62 (10th Cir. 2002) [same];
U.S. v. Aquino-Chacon, 109 F.3d 936 (4th Cir. 1997) [same]; U.S. v. Trevino-
Martinez, 86 F.3d 65, 69 (5th Cir. 1996).
8. Defense that Person Was Under Official Restraint Prior to Entry—Where person was
under official restraint and never entered the U.S., s/he may not be convicted of being
“found-in” the U.S. U.S. v. Gonzalez-Torres, 309 F.3d 594, 597–99 (9th Cir. 2002)
[where defendant was under observation before crossing the Mexican border his
conviction was reversed because he had not made an entry]; U.S. v. Pacheco-Medina,
212 F.3d 1162, 1163 (9th Cir. 2000) [a person who was under surveillance when he
scaled fence at the border and dropped over on to U.S. soil and was quickly
apprehended had not entered U.S.]; U.S. v. Oscar, 496 F.2d 492, 493 (9th Cir. 1974).
But see U.S. v. Rivera-Sillas, 417 F.3d 1014, 1019–20 (9th Cir. 2005) [government
need not plead nor prove entry to convict on a “found-in” charge]. Surveillance need
not be by federal officials. See U.S. v. Lombera-Valdovinos, 429 F.3d 927, 929 (9th
Cir. 2005).
9. Defense that Person Was Involuntarily in U.S.—The voluntariness of a defendant’s
re-entry “is an element of the crime and, as such, must be proved beyond a reasonable
doubt by the prosecution.” U.S. v. Quintana-Torres, 235 F.3d 1197, 1200 (9th Cir.
2000). However, in U.S. v. Parga-Rosas, 238 F.3d 1209, 1213–14 (9th Cir. 2001), the
Ninth Circuit treated Quintana-Torres as a sufficiency of the evidence case and found
that a person in the U.S. who was away from the border would have to demonstrate
the speculative possibility that involuntary entry had taken place. See also U.S. v.
Rivera-Sillas, 417 F.3d 1014, 1020–21 (9th Cir. 2005) [although §1326 is not a status
or strict liability offense, involuntary presence in the U.S. is the rare exception not the
rule, and an inference of voluntariness is raised where the person is found in the U.S.
and has raised no evidence to the contrary].
10. Miranda Warnings—Where DHS gave confusing warning pursuant to Miranda v.
Arizona, 384 U.S. 436 (1966), evidence was suppressed. U.S. v. San Juan-Cruz, 314
F.3d 384 (9th Cir. 2002) [where INS agent gave administrative warnings that said
government does not provide counsel and then gave Miranda warnings saying
government would, the confusion warrants reversal of conviction based upon

13
 person’s statements]. When person was not deemed to be in custody at time he gave
incriminating answers evidence would not be suppressed. U.S. v. Hernandez-
Hernandez, 327 F.3d 703 (8th Cir. 2003) [where defendant detained as part of a Terry
stop, his subsequent arrest after he admitted illegal entry to INS officer without prior
Miranda warnings was lawful].
11. Arrest Improper as Defense—Person may not be detained under Fed. R. Crim. P. 5(a)
for greater than 48 hours for a nonstatus crime without going before a magistrate. Cf.
U.S. v. Encarnacion, 239 F.3d 395 (1st Cir. 2001). A person arrested pursuant to a
potential charge under §1326 and not brought before a magistrate within 48 hours
does not, absent collusion, violate Fed. R. Crim. Proc. 5(a), because §1326 is a status
crime. U.S. v. Tejada, 255 F.3d 1, 3–5 (1st Cir. 2001); U.S. v. Noel, 231 F.3d 833,
837 (11th Cir. 2000).
12. Person Not Deported—If person not deported at immigration proceeding, government
cannot sustain its burden that defendant was found in the U.S. after deportation. U.S.
v. Castillo-Basa, 483 F.3d 896 (9th Cir. 2007) [although defendant need not be
physically present at the time of his deportation order because an in absentia order
will suffice, he could not be tried for perjury after being acquitted on the “found in”
charge where he argued he was not present and the government was unable to prove
he was deported].
13. Collateral Attack on Validity of First Deportation Order Permitted—U.S. v. Mendoza-
Lopez, 481 U.S. 828 (1987) [collateral attack permitted where errors in first
deportation hearing rendered hearing fundamentally unfair and respondent was
denied effective judicial review of the validity of the deportation hearing because the
IJ never advised respondent of his right to suspension and his waiver of appeal was
therefore not intelligently and knowingly made]; U.S. v. Charleswell, 456 F.3d 347
(3d Cir. 2006) [collateral attack permitted on both reinstatement order under INA
§241(a)(5) as well as underlying order]; U.S. v. Lopez-Vasquez, 227 F.3d 476, 483–85
(5th Cir. 2000) [summary removal proceeding is not fundamentally unfair and can be
used as a basis for a prior removal order because the due process rights of an alien
seeking admission are left to Congress]; U.S. v. Gonzalez-Mendoza, 985 F.2d 1014
(9th Cir. 1993) [no waiver of counsel where silent at deportation hearing]; U.S. v.
Lopez-Vasquez, 1 F.3d 751 (9th Cir. 1993), reh’g en banc denied [mass silent waivers
of appeal violated due process]; U.S. v. Higareda-Ramirez, 107 F.Supp.2d 1248 (D.
Hawaii 2000) [failure to provide an interpreter or attorney at deportation hearing
where respondent did not speak English and where no record of hearing exists to
show fairness results in “fundamentally unfair” hearing]. Generally a party must show
both prongs of Mendoza-Lopez (i.e., hearing fundamentally unfair and no effective
judicial review) to obtain relief. U.S. v. Santos-Vanegas, 878 F.2d 247 (8th Cir.
1989); U.S. v. Palacios-Martinez, 845 F.2d 89 (5th Cir.), cert. denied, 488 U.S. 844
(1988); U.S. v. Zaleta-Sosa, 854 F.2d 48, 51 (5th Cir. 1988); U.S. v. Holland, 876
F.2d 1533 (11th Cir. 1989). The passage of the REAL ID Act of 2005 may not bar the
court’s jurisdiction to hear a motion to dismiss the indictment under Mendoza-Lopez.
U.S. v. Villa-Melchor, 389 F.Supp.2d 755, 758 (W.D. Tex. 2005) [court rejected both
parties’ view that case had to be transferred to circuit court under REAL ID Act].

14
13.a. General Criteria—Congress, in AEDPA, incorporated Mendoza-Lopez into
statutory law under 8 U.S.C. §1326(d). The statute prevents a collateral attack to
the validity of the deportation order unless the defendant (1) exhausted
administrative remedies; (2) was deprived of judicial review; and (3) was ordered
deported in a fundamentally unfair removal (or formerly a deportation/exclusion)
hearing. 8 U.S.C. §1326(d). It applies to criminal proceedings initiated after Apr.
24, 1996. U.S. v. Charleswell, 456 F.3d 347, 354–63 (3d Cir. 2006) [upheld
collateral attack on reinstatement order under INA §241(a)(5) because defendant
was deprived of judicial review by not being informed of it and receiving a notice
that mislead him as to his rights and because his hearing was fundamentally
unfair]; U.S. v. Zelaya, 293 F.3d 1294 (11th Cir. 2002) [defendant failed to
exhaust remedies when he failed to seek rescission of in absentia order]; U.S. v.
Gonzalez-Roque, 301 F.3d 39, 46–49 (2d Cir. 2002) [defendant failed to comply
with exhaustion requirement under §1326(d) when he failed to raise procedural
due process issues and denial of continuance in his pro se appeal to the BIA]. A
constitutional challenge against the exhaustion requirement under §1326(d)(1) has
been rejected. U.S. v. Johnson, 391 F.3d 67, 73–74 (2d Cir. 2004) [failed to
exhaust his administrative remedies and therefore ineligible to mount a collateral
act on his deportation order]
13.b. Exhaustion of Administrative Remedies as Requisite for Relief Under
§1326(d)(1)—The failure to exhaust administrative remedies has been used to
deny a collateral challenge. U.S. v. Deleon, 444 F.3d 41, 48–51 (1st cir. 2006)
[where respondent hid his true identity from the IJ he could not argue that he did
not knowingly and intelligently give up his right to appeal because IJ failed to
inform him of discretionary relief]; U.S. v. Chavez-Alonso, 431 F.3d 726 (10th
Cir. 2005) [failure to exhaust is not excused by IJ’s failure to inform defendant of
his right to apply for INA §212(c) relief]; U.S. v. Gonzalez, 429 F.3d 1252
(9th Cir. 2005 [failure to appeal summary removal as an aggravated felon was a
valid waiver as the bar to INA §212(h) relief under 8 U.S.C. §1228(b)(5), which
barred all discretionary relief, could be retroactively applied]; U.S. v. Rodriguez,
410 F.3d 831, 834–35 (8th Cir. 2005) [IJ’s failure to adequately inform
respondent that drunk driving may not be an aggravated felony, did not make
respondent’s decision not to appeal to the BIA an involuntary or unknowing
waiver]; U.S. v. Roque-Espinoza, 338 F.3d 724, 728–30 (7th Cir. 2003) [failure to
appeal IJ denial of right to seek INA §212(c) relief to BIA on futility grounds was
insufficient to overcome exhaust requirement under Mendoza-Lopez and
§1326(d)]; U.S. v. Gonzalez-Roque, 301 F.3d 39, 46–49 (2d Cir. 2002) [defendant
failed to comply with exhaustion requirement under §1326(d) when he failed to
raise procedural due process issues and denial of continuance in his pro se appeal
to the BIA]; U.S. v. Hinojosa-Perez, 208 F.3d 832 (9th Cir. 2000) [defendant
failed to avail himself of a motion to reopen to challenge deportation order based
upon defective notice and therefore failed to exhaust administrative remedies];
U.S. v. Hernandez-Ochoa, 346 F.Supp.2d 380, 382–83 (D.R.I. 2004) [EOIR
transcript indicating defendant would file appeal and defendant’s claim he did file
appeal without more is insufficient to show exhaustion]. But see U.S. v. Camacho-
Lopez, 450 F.3d 928 (9th Cir. 2006) [exhaustion not required where IJ

15
 erroneously advised defendant that he was ineligible for discretionary relief and
he was not removable for aggravated felony as charged]; U.S. v. Calderon, 391
F.3d 370, 374–75 (2d Cir. 2004) [where IJ and respondent’s counsel told him he
was ineligible for §212(c) relief his waiver of appeal to BIA was not knowing and
intelligently made]; U.S. v. Sosa, 387 F.3d 131, 136–37 (2d Cir. 2004) [failure to
exhaust “must be excused” where it arises from an invalid waiver of the right to
administrative appeal because it was not knowingly and intelligently made]; U.S.
v. Copeland, 376 F.3d 61, 66–67 (2d Cir. 2004) [filing motion to reopen and
appealing it to BIA satisfied exhaustion requirement]; U.S. v. Pallares-Galan, 359
F.3d 1088, 1096–98 (9th Cir. 2004) [defendant’s failure to appeal his removal
order was not “considered or intelligent” where IJ erroneously informed him that
he was not eligible for relief from removal as an aggravated felon].
13.c. Denial of Judicial Review as a Requisite to Collateral Claim—In order to avail
herself of relief under §1326(d) or Mendoza-Lopez a claimant must demonstrate
that he was denied judicial review under §1326(d)(2). U.S. v. Charleswell, 456
F.3d 347, 354–63 (3d Cir. 2006) [where DHS provided a misleading notice to
defendant in his reinstatement proceeding under INA §241(a)(5) that did not
inform him of his right to a federal appeal, he was deprived of judicial review
under §1326(d)(2)]; U.S. v. Lopez, 445 F.3d 90 (2d Cir. 2006) [followed
Copeland, Sosa and Calderon and although the IJ/BIA had no obligation to
inform the defendant of habeas relief, their statements that no relief was available
deterred him from seeking judicial review]j; U.S. v. Calderon, 391 F.3d 370, 374–
76 (2d Cir. 2004) [where IJ and respondent’s counsel told him he was ineligible
for §212(c) relief his waiver of appeal to BIA was not knowing and intelligently
made and he was deprived of judicial review]; U.S. v. Sosa, 387 F.3d 131, 137–38
(2d Cir. 2004) [respondent did not have a realistic possibility of seeking judicial
review through habeas because there was less than one month between entry of
final order and physical deportation and he could not learn INA §212(c) relief pro
se during that time given its complexity and he was not informed of it by IJ]; U.S.
v. Copeland, 376 F.3d 61, 67–70 (2d Cir. 2004) [where defendant had no realistic
opportunity for habeas review because he was physically deported quickly and
because of the legal uncertainty as to the availability of habeas, he was denied
judicial review for purposes of a collateral attack]. But see U.S. v. Rodriguez, 420
F.3d 831 (8th Cir. 2005)[where IJ, pre-Leocal, informed respondent that the BIA
would most likely consider drunk driving an aggravated felony and respondent
waived his appeal, the court rebuffed a challenge to the waiver because
respondent’s complaint is only that the IJ did not adequately inform him of a
future change in the interpretation of the law]; U.S. v. Rivera-Nevarez, 418 F.3d
1104, 1107–11 (10th Cir. 2005) [although Leocal applied retroactively to render
prior removal order invalid, defendant’s failure to appeal removal order barred
challenge]; U.S. v. Mendez-Morales, 384 F.3d 927, 929–30 (8th Cir. 2004)
[statutory preclusion preventing judicial review of adjustment of status because
respondent was an aggravated felon does not automatically bar an illegal re-entry
prosecution where there is no due process deprivation by the agency and where
habeas corpus jurisdiction was available]; U.S. v. Vargas, 479 F.Supp.2d 252, 254
(D. R.I. 2007) [where defendant claims lawyer improperly withdrew appeal of

16
 removal, it is insufficient to make a claim because nothing at removal hearing
deprived him of opportunity for judicial review].
13.d. Fundamentally unfair proceeding where defendant was prejudiced—Generally a
defendant under Mendoza-Lopez and §1326(d)(3) must show some that
proceeding was fundamentally unfair and that respondent was prejudiced in the
deportation/removal proceeding. See e.g., U.S. v. Charleswell, 456 F.3d 347, 354–
63 (3d Cir. 2006) [where DHS provided a misleading notice to defendant in his
reinstatement proceeding under INA §241(a)(5) that did not inform him of his
right to a federal appeal, he was deprived of a fundamentally fair hearing and case
was remanded to determine prejudice].
(1) The Standard for Prejudice—The circuits have varying standards to determine
whether a person was prejudiced by errors committed during the removal
proceedings. Compare U.S. v. Charleswell, 456 F.3d 347, 361–62 (3d Cir.
2006) [agreeing with majority of circuits that the standard for prejudice is a
“reasonable likelihood that the result would have been different”]; U.S. v. El
Shami, 434 F.3d 659, 664–66 (4th Cir. 2005) [applying a reasonable
probability that respondent would have been granted INA §212(c) relief and
not deported]; U.S. v. Copeland, 376 F.3d 61, 73–74 (2d Cir. 2004) [applying
the “reasonable probability” standard as in ineffective assistance of counsel
claims]; U.S. v. Aguirre-Tello, 353 F.3d 1199, 1207–08 (10th Cir. 2004) (en
banc) [applying the “reasonable likelihood” standard to determine whether the
defendant would have obtained relief or the outcome of the proceedings
would have been different] and U.S. v. Encarnacion-Galvez, 964 F.2d 402,
407 (5th Cir. 1992) [defendant must show that “but for” the errors complained
of he would not have been deported], with U.S. v. Garcia-Martinez, 228 F.3d
956, 963 (9th Cir. 2000) [must only show plausible grounds for relief to
establish prejudice]. The prejudice inquiry may not extend beyond the fairness
of the deportation/removal order itself and may not therefore encompass events
subsequent to the order to find no prejudice U.S. v. Scott, 394 F.3d 111, 118–19
(2d Cir. 2005) [decision to deny dismissal of indictment was reversed where the
district judge held there was no prejudice on theory that §212(c) relief would
have been lost based upon a conviction subsequent to the deportation order]. At
least one court has determined in the context of the denial of INA §212(c)
relief, that the “reasonable probability” standard required that the applicant only
show that s/he had a 20% chance of prevailing on the claim. U.S. v. Copeland,
369 F.Supp.2d 275, 285–88 (E.D.N.Y. 2005) [applying 20% rule but
determining that defendant would not have been granted §212(c) relief and
therefore there was no prejudice in denying him opportunity to apply]. Where
the transcript of the removal proceeding is unavailable, the defendant still has
the burden of overcoming the presumption that his deportation proceeding was
conducted in a valid manner. U.S. v. Arevalo-Tavares, 210 F.3d 1198 (10th Cir.
2000). U.S. v. Interian-Mata, 363 F.Supp.2d 1246 (S.D. Cal. 2005) [where
respondent who was deprived of INA §212(c) hearing would not have won his
case on the merits, a motion to suppress was denied].

17
(2) Prejudice—U.S. v. Camacho-Lopez, 450 F.3d 928 (9th Cir. 2006) [exhaustion
not required where IJ erroneously advised defendant that he was ineligible for
discretionary relief and he was not removable for aggravated felony as
charged]; U.S. v. El Shami, 434 F.3d 659, 664–66 (4th Cir. 2005) [the
government’s failure to provide notice of deportation proceeding prejudiced
respondent because there was a reasonable probability that he would have been
granted INA §212(c) relief and not deported]; U.S. v. Ortiz-Lopez, 385 F.3d
1202 (9th Cir. 2004) [conviction for illegal re-entry reversed where the IJ’s
failure to advise defendant that he could get VD instead of deportation was
prejudicial]; U.S. v. Pallares-Galan, 359 F.3d 1088 (9th Cir. 2004) [where IJ
erroneously advised defendant in removal proceeding that he was not eligible
for cancellation of removal because the IJ erroneously ruled that a conviction
under a California statute for annoying or molesting a child under 18 was an
aggravated felony, defendant was prejudiced and did not validly waive his right
to appeal the IJ’s order]; U.S. v. Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir.
2004) [defendant prejudiced in immigration hearing, where his attorney said he
would accept order as final but defendant did not intelligently or knowingly
waive appeal; defendant was prejudiced because he had a plausible due process
claim regarding the retroactivity of the aggravated felony definition and he had
a right to apply for former INA §212(c) relief]; U.S. v. Modica-Linos, 399
F.Supp.2d 1114 (E.D. Wash. 2005) [IJ’s statement that defendant was not
eligible for §212(c) relief was erroneous, and defendant was therefore
prejudiced in his removal proceeding].
(3) No Prejudice—U.S. v. Luna, 436 F.3d 312 (1st Cir. 2006) [where IJ failed to
inform respondent about §212(c) relief, there was no prejudice because upon
review of the facts respondent would not have obtained the relief]; U.S. v.
Jimenez-Borja, 378 F.3d 853, 859 (9th Cir. 2004) [failure of IJ to advise
respondent of his eligibility for INA §212(h) relief violated due process but he
failed to show prejudice because he could not plausibly demonstrate the
necessary extreme hardship to a qualifying relative]; U.S. v. Mendoza-Mata,
322 F.3d 829 (5th Cir. 2003) [where defendant had been deprived of his right
to seek INA §212(c) relief he was not prejudiced because he could not show
that there was a reasonable likelihood he would get the relief given his
extensive criminal record]; U.S. v. Gonzalez-Valerio, 342 F.3d 1051, 1054–56
(9th Cir. 2003) [no prejudice in failing to inform respondent of his right to
INA §212(c) relief where his second conviction was for an aggravated felony
that arose subsequent to the passage of IIRIRA]; U.S. v. Fernandez-Antonia,
278 F.3d 150, 157–61 (2d Cir. 2002) [although IJ failed to instruct respondent
on INA §212(h) relief, the respondent made no showing of prejudice]; U.S. v.
Medina, 236 F.3d 1028 (9th Cir. 2001) [where there was a blank transcript of
deportation hearing conviction was nevertheless upheld because unfairness of
hearing is not an element of the offense, government must only prove prior
deportation, and burden is on defendant to demonstrate prejudice]; U.S. v.
Muro-Inclan, 249 F.3d 1180 (9th Cir. 2001) [although IJ never disclosed to
defendant that he was eligible for 212(h) waiver, the facts did not demonstrate
substantial prejudice]; U.S. v. Perez-Ponce, 62 F.3d 1120 (8th Cir. 1995)

18
 [reversed district court’s vacation of conviction because, notwithstanding IJ’s
errors, there was no showing of prejudice]; U.S. v. Espinoza-Farlo, 34 F.3d
469 (7th Cir. 1994); U.S. v. Meraz-Valeta, 26 F.3d 992, 998 (10th Cir. 1994);
U.S. v. Fares, 978 F.2d 52 (2d Cir. 1992); U.S. v. Proa-Tovar, 975 F.2d 592
(9th Cir. 1992) (en banc); U.S. v. Encarnacion-Galvez, 964 F.2d 402, 407 (5th
Cir. 1992) [defendant must show that but for the errors complained of he
would not have been deported].
13.e. Relief Granted—The courts have invalidated convictions or granted motions to
dismiss pursuant to Mendoza-Lopez and §1326(d)
(1) First Circuit—U.S. v. Diaz-Nin, 221 F.Supp.2d 584 (D.V.I. 2002) [where
person deprived of INA §212(c) relief and judicial review barred because
government’s position was that there was no review in habeas or on appeal
pre–St. Cyr indictment dismissed];
(2) Second Circuit—U.S. v. Scott, 394 F.3d 111 (2d Cir. 2005) [following U.S. v.
Perez and concluding that failure to seek §212(c) relief was a fundamental
procedural error that was prejudicial]; U.S. v. Calderon, 391 F.3d 370 (2d Cir.
2004) [following Sosa and Copeland court, affirmed district court’s dismissal
of indictment where respondent was informed by both IJ and his own counsel
that §212(c) relief was not available]; U.S. v. Sosa, 387 F.3d 131 (2d Cir.
2004) [reversed conviction where IJ failed to inform defendant of INA
§212(c) relief, where defendant did not knowingly and intelligently waive
administrative appeal rights, where there was no realistic opportunity for
judicial review, where the procedural failure to inform demonstrated that case
was fundamentally unfair and where the case was remanded for hearing on
prejudice]; U.S. v. Copeland, 376 F.3d 61 (2d Cir. 2004) [failure to inform
respondent in deportation hearing of INA §212(c) relief was fundamentally
unfair and case remanded on issue of prejudice]; U.S. v. Velasco-Medina
distinguished]; U.S. v. Perez, 330 F.3d 97 (2d Cir. 2003) [indictment for
illegal re-entry dismissed where lawyer failed to seek INA §212(c) relief and
respondent only exhausted administrative remedies as to denial of motion to
reopen]; U.S. v. Duncan, 396 F.Supp.2d 210 (D. Conn. 2005) [where
respondent raised a derivative citizenship claim, he is entitled to evidentiary
hearing before removal hearing can be used as basis for criminal proceeding];
U.S. v. Garcia-Jurado, 281 F.Supp.2d 498 (E.D.N.Y. 2003) [LPR deprived of
fair hearing under §1326(d) where he was denied INA §212(c) hearing due to
improper interpretation and then deported before BIA could rule on pending
motion to reconsider]; U.S. v. Frias-Gomez, 262 F.Supp.2d 11 (E.D.N.Y.
2003) [where person improperly denied the opportunity to apply for INA
§212(c) relief and he was deported before he could contest the decision
indictment for illegal re-entry dismissed]; U.S. v. Brown, 148 F.Supp.2d 191
(E.D.N.Y. 2001) [where person was extradited to U.S., the failure to give him
an opportunity to depart under the Badalamenti decision interpreting the
former INA provision was fundamentally unfair].
(3) Fourth Circuit—U.S. v. El Shami, 434 F.3d 659, 664–66 (4th Cir. 2005) [the
government’s failure to provide notice of deportation proceeding prejudiced

19
 respondent because there was a reasonable probability that he would have
been granted INA §212(c) relief and not deported].
(4) Fifth Circuit—U.S. v. Campos-Asencio, 822 F.2d 506 (5th Cir. 1987)
[following Mendoza-Lopez, court reversed conviction where alien raised
denial of counsel claim in his deportation hearing]; U.S. v. Ojeda-Escobar,
218 F.Supp.2d 839 (W.D. Tex. 2002) [motion granted where defendant was
removed prior to St. Cyr and therefore denied application for INA §212(c)
relief]; U.S. v. Girosky-Garibay, 176 F.Supp.2d 705 (W.D. Tex. 2001)
[dismissed indictment where removal proceeding was fundamentally unfair
because it was based on erroneous interpretation of law that felony DWI was
an aggravated felony barring relief]; U.S. v. Montano-Bentancourt, 151
F.Supp.2d 794 (W.D. Tx. 2001) [where OSC was sent to wrong address and
defendant deported in in absentia hearing was fundamentally unfair].
(5) Eighth Circuit—U.S. v. Santos-Vanegas, 878 F.2d 247 (8th Cir. 1989)
[where deportation notice did not indicate respondent could appeal BIA’s
decision and where incorrect standard was used to evaluate asylum claim the
conviction is reversed].
(6) Ninth Circuit—U.S. v. Camacho-Lopez, 450 F.3d 928 (9th Cir. 2006)
[reversed district court where exhaustion was not required because IJ
erroneously advised defendant that he was ineligible for discretionary relief
and defendant was not removable for aggravated felony as charged]; U.S. v.
Ortega-Ascanio, 376 F.3d 879 (9th Cir. 2004) [permitted withdrawal of plea
before sentencing where defendant argued that intervening St. Cyr decision
was basis to dismiss indictment for illegal re-entry because IJ, at removal
hearing, failed to inform him of INA §212(c) relief even though he informed
him of cancellation but only if he did not commit aggravated felony]; U.S. v.
Pallares-Galan, 359 F.3d 1088 (9th Cir. 2004) [where IJ erroneously advised
defendant in removal proceeding that he was not eligible for cancellation of
removal because the IJ erroneously ruled that a conviction under a California
statute for annoying or molesting a child under 18 was an aggravated felony,
defendant was prejudiced and did not validly waive his right to appeal the IJ’s
order]; U.S. v. Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir. 2004) [defendant
prejudiced in immigration hearing where his attorney said he would accept
order as final but defendant did not intelligently or knowingly waive appeal
and defendant was prejudiced because he had a plausible due process claim
regarding the retroactivity of the aggravated felony definition and he had a
right to apply for former INA §212(c) relief]; U.S. v. Leon Paz, 340 F.3d 1003
(9th Cir. 2003) [where IJ erroneously told respondent he was ineligible for
relief when in fact he was eligible for INA §212(c) relief his conviction was
vacated; U.S. v. Ahumada-Aguilar, 295 F.3d 943 (9th Cir. 2002) [conviction
reversed where IJ deprived person of his right to counsel in group hearing,
where the waiver of right to appeal was not knowing and intelligent and where
he was prejudiced by errors]; U.S. v. Arrieta, 224 F.3d 1076 (9th Cir. 2000)
[defendant’s mass deportation hearing where IJ failed to inform him of his
apparent eligibility for an INA §212(h) waiver resulted in prejudice]; U.S. v.

20
 Calles-Pineda, 627 F.2d 976 (9th Cir. 1980) [mass deportation hearing was
denial of due process];U.S. v. Lopez-Menera, 542 F.Supp.2d 1025 (N.D. Cal.
2008) [IJ failure to inform respondent of right to seek VD deprived him of
right to appeal and was prejudicial].
13.f. Relief Denied—More often than not in published cases, the courts have denied
claims under Mendoza-Lopez and §1326(d).
(1) First Circuit—U.S. v. Deleon, 444 F.3d 41, 48–51 (1st cir. 2006) [where
respondent hid his true identity from the IJ he could not argue that he did not
knowingly and intelligently give up his right to appeal because IJ failed to
inform him of discretionary relief]; U.S. v. Vieira-Candelario, 6 F.3d 12 (1st
Cir. 1993) [where defendant was improperly denied right to seek INA §212(c)
relief, filed appeal and later withdrew it, he was not denied judicial review];
(2) Second Circuit—U.S. v. Gonzalez-Roque, 301 F.3d 39 (2d Cir. 2002) [where
IJ denied fourth continuance to permit respondent to file I-130 petition and
respondent did not raise issue in pro se appeal to BIA he failed to comply with
the exhaustion requirement under §1326(d)(1); due process was also not
violated]; U.S. v. Manragh, 428 F.Supp.2d 130 (E.D.N.Y. 2006) [failure by
appellate lawyer to file brief before the BIA did not substantially prejudice
defendant because there was no reasonable probability that he would have
avoided deportation]; U.S. v. Cottone, 244 F.Supp.2d 126 (E.D.N.Y. 2003)
[IJ’s erroneous claim to respondent that INA §212(c) relief was not available
to him did not render proceeding fundamentally unfair]; U.S. v. Bailey, 56
F.Supp.2d 381 (S.D.N.Y. 1999) [motion to dismiss denied where immigration
attorney told client not to appear and consequently his §212(c) application
was deemed abandoned]; U.S. v. Jimenez, 921 F.Supp. 1054 (S.D.N.Y. 1995)
[motion to dismiss indictment denied even where waiver of right to
deportation hearing was coerced by threat of detention where no showing of
prejudice because defendant would have been deported anyway];
(3) Third Circuit—U.S. v. Torres, 383 F.3d 92, 104–06 (3d Cir. 2004) [removal
proceeding was not fundamentally unfair where IJ did not inform respondent
of the right to seek §212(c) relief because grant of relief was speculative and a
matter of “grace.” Addressed Greenholtz finding it supported view that relief
was speculative];
(4) Fourth Circuit—U.S. v. Wilson, 316 F.3d 506, 510–11 (4th Cir. 2003) [the
proceeding was not fundamentally unfair where BIA denied INA §212(c)
claim pre–St. Cyr because the failure of the BIA to consider a INA §212(c)
claim is not a due process violation as there is no liberty or property interest in
discretionary relief];
(5) Fifth Circuit—U.S. v. Lopez-Ortiz, 313 F.3d 225 (5th Cir. 2002), cert.
denied, 537 U.S. 1135 (2003) [failure to inform defendant of eligibility for
INA §212(c) relief does not rise to the level of fundamental unfairness and
therefore does not affect the conviction because §212(c) relief is not a liberty
or property interest warranting due process protection]; U.S. v. Asibor, 109
F.3d 1023, 1037–38 (5th Cir. 1997) [where attorney conducted case

21
 telephonically and defendant never notified of right to contact consulate,
hearing was fundamentally fair]; U.S. v. Saucedo-Velasquez, 843 F.2d 832
(5th Cir. 1988) [conviction upheld where defendant was an unrepresented
minor at his deportation hearing]; U.S. v. Lubo, 262 F.Supp.2d 727 734 (W.D.
Tex. 2003) [no fundamental error because there was no prejudice where IJ
entered reinstatement order denying withholding/CAT claim]; U.S. v.
Hernandez-Rodriguez, 170 F.Supp.2d 700 (N.D. Tex. 2001) [motion to
dismiss denied notwithstanding person’s deportation because of incorrect
retroactive application denying INA §212(c) relief pre–St. Cyr];
(6) Sixth Circuit—U.S. v. Martinez-Rocha, 337 F.3d 566 (6th Cir. 2003) [where
respondent knowingly and intelligently waived his right to contest deportation
he failed to exhaust his remedies and is barred under §1326(d)];
(7) Seventh Circuit—U.S. v. De Horta Garcia, 519 F.3d 658 (7th Cir. 2008)
[defendant pled guilty after AEDPA and therefore barred from INA §212(c)
relief]; U.S. v. Santiago-Ochoa, 447 F.3d 1015 (7th Cir. 2006) [where prior
removal order was administrative under INA §238(b), defendant did not
satisfy any requirements of 8 U.S.C. §1326(d)]; U.S. v. Adame-Salgado, 214
F.Supp.2d 853 (N.D. Ill. 2002) [failure to advise respondent of INA §212(c)
relief is insufficient to dismiss indictment because there was no showing that
his right of judicial review or due process was violated];
(8) Ninth Circuit—U.S. v. Rivera-Sillas, 417 F.3d 1014, 1017–18 (9th Cir. 2005)
[lack of counsel at deportation hearing does not violate Sixth Amendment];
U.S. v. Corrales-Beltran, 192 F.3d 1311, 1317–19 (9th Cir. 1999) [failure to
advise person of right to appeal bond hearing where he gave up underlying
administrative appeal on the merits was not in violation of Mendoza-Lopez];
U.S. v. Arce-Hernandez, 163 F.3d 559, 563–64 (9th Cir. 1998) [affirmed
district court’s determination that there was not sufficient prejudice where
person married to USC with USC children and was not informed of right to
apply for §212(h) waiver in violation of IJ’s duty to do so]; U.S. v. Contreras,
63 F.3d 852, 856–57 (9th Cir. 1995) [refused to vacate even where there was
telephonic mass hearing]; U.S. v. Chavez-Huerto, 972 F.2d 1087 (9th Cir.
1992) [affirmed conviction where defendant argued that he did not knowingly
waive immigration appeal right where he was not told of the criminal bar to
re-entry by IJ]; U.S. v. Arroyo-Garcia, 746 F.Supp. 1039 (D. Nev. 1990)
[motion to dismiss indictment denied where defendant was not informed of
his right to apply for registry, but the defect did not effectively foreclose
judicial review or render the proceedings fundamentally unfair]: U.S. v.
Arroyo-Garcia, 751 F.Supp. 172 (D. Nev. 1990) [same case].
(9) Tenth Circuit—U.S. v. Aguirre-Tello, 353 F.3d 1199, 1204–05 (10th Cir.
2004) (en banc) [rejected action to dismiss indictment in re-entry case because
there is no constitutional right to be informed of discretionary relief that might
be available such as INA §212 (c) and there was no prejudice]; U.S. v. Meraz-
Valeta, 26 F.3d 992, 998 (10th Cir. 1994) [IJ’s failure to consider improperly
issued JRAD in drug case did not render deportation hearing fundamentally
unfair]; U.S. v. Valdez, 917 F.2d 466 (10th Cir. 1990) [affirmed conviction

22
 where applicant claimed he was not given Miranda warnings before
deportation hearing];
(10) Eleventh Circuit—U.S. v. Holland, 876 F.2d 1533 (11th Cir. 1989)
[denial of judicial review alone insufficient; must show that specific error
seriously prejudiced deportation hearing rendering the hearing fundamentally
unfair].
13.g. Standard of Review—The collateral attack in these cases is a mixed question of
law and fact and the courts will review them de novo when they involve
constitutional rights. U.S. v. Lopez-Vasquez, 1 F.3d 751 (9th Cir. 1993), rehearing
en banc denied; U.S. v. Valdez, 917 F.2d 466, 468 (10th Cir. 1990). The burden of
proof is on the alien, not the government. U.S. v. Martinez-Amaya, 67 F.3d 678,
680–82 (8th Cir. 1995).
13.h. Defenses—Neither Mendoza-Lopez nor §1326 bars a defendant from asserting
that s/he is not an alien notwithstanding the validity of the first deportation order.
U.S. v. Meza-Soria, 935 F.2d 166 (9th Cir. 1991) [defendant could raise claim of
USC without attacking previous order of deportation, because alienage is a
separate element of 8 U.S.C. §1326]. Nor is a person collaterally estopped from
asserting s/he is citizen. U.S. v. Ortiz-Lopez, 24 F.3d 53, 55–56 (9th Cir. 1994).
However, the fact that a person legalized his or her status after the second entry is
not a defense, in the view of at least one circuit. U.S. v. Ramos-Quirarte, 935 F.2d
162 (9th Cir. 1991) [rejected defense that defendant became a SAW after his
return to U.S.].
13.i. Cannot Attack Underlying Conviction—The collateral attack doctrine may not
extend to an attack on the conviction that formed the basis for the first deportation
charge. U.S. v. Arroyo-Garcia, 751 F.Supp. 172 (D. Nev. 1990). However, the
prior aggravated felony or other conviction may be challenged in a prosecution
under 8 U.S.C. §1326 where it is used to enhance the penalties under §1326(b)(2)
solely on the ground that defendant was denied counsel in the prior felony
conviction. U.S. v. Delacruz-Soto, 414 F.3d 1158, 1164–67 (10th Cir. 2005).
Congress has precluded a collateral attack of a summary exclusion order under
INA §235(b)(1) and for purposes of the assessment of penalties (fines) because
“no court shall have jurisdiction to hear claims collaterally attacking the validity
of orders of exclusion, special (i.e., summary) exclusion or deportation.” INA
§235(c), 8 U.S.C. §1225(c). The IIRIRA also prohibited collateral attacks of
summary exclusion orders in criminal proceedings concerning unlawful entry
(INA §275(c)) or unlawful re-entry (INA §276). INA §235(b)(1)(D). And at least
one circuit has found that the lack of judicial review is not fundamentally unfair.
U.S. v. Lopez-Vasquez, 227 F.3d 476, 483–85 (5th Cir. 2000) [summary removal
proceeding is not fundamentally unfair and can be used as a basis for a prior
removal order because the due process rights of an alien seeking admission are
left to Congress]. However, the general statutes prohibiting review of final orders
of deportation under AEDPA of persons with convictions cannot be used to bar
review of the validity of the initial deportation order. U.S. v. Arce-Hernandez, 163
F.3d 559, 561–63 (9th Cir. 1998) [court not barred by AEDPA §440(a) from
deciding validity of deportation order in re-entry case].

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 13.j. Mootness—The government’s appeal of a dismissal of the indictment is not moot
where the respondent was removed from the U.S. after the indictment was
dismissed. U.S. v. Gonzalez-Roque, 301 F.3d 39, 44–45 (2d Cir. 2002) [dismissal
of indictment and defendant’s subsequent removal by INS did not moot appeal
because he would be subject to arrest and imprisonment if he sought re-entry].
13.k. Discovery—A defendant has a right to obtain a copy of his alien registration file
in discovery to initiate collateral challenge. U.S. v. Ponce-Covarrubias, 227
F.Supp.2d 931 (W.D. Tenn. 2002) [defendant entitled to “A” file in discovery
even if s/he failed to satisfy either the exhaustion of administrative remedies or
the deprivation of judicial review as s/he is required to do under §1326(d) to
obtain relief in collateral challenge]. «»
B. Convictions Under INA §274—Includes: illegally bringing in [§274(a)(1)(A)(i)],
transporting [§274(a)(1)(A)(ii)], harboring [§274(a)(1)(A)(iii)], and encouraging
someone to come to, enter or reside in U.S. [§274(a)(1)(A)(iv)], conspiring or aiding and
abetting these crimes [§274(a)(1)(A)(v)], or bringing someone to the U.S. [§274(a)(2)].
IRCA §112, PL 99-603, 100 Stat. 3359 (Nov. 6, 1986), amended INA §274(a), 8 U.S.C.
§1324(a), to eliminate the [“Texas Proviso”] exception that employment is not harboring.
However, INS regulatory comments, 52 FR 16217 (May 1, 1987), made it clear that this
statute will not be applied to cases involving only employment. One court, ignoring the
regulatory comments found that employment does constitute harboring. U.S. v. Kim, 193
F.3d 567, 572–74 (2d Cir. 1999). Another court found that it was not reversible error for
a district judge to refuse to give a “mere employment” jury instruction to harboring and
smuggling charges. U.S. v. Khanani, 502 F.3d 1281, 1285–89 (11th Cir. 2007) [failure to
give mere employment jury instruction did not seriously impair the defendant’s ability to
conduct their defense because the instructions as given already required proof beyond
mere employment]. See also U.S. v. Tipton, 518 F.3d 591 (8th Cir. 2008) [evidence was
sufficient for harboring where persons were given employment, provided a place to live,
given daily transportation, given money to purchase necessities, and maintained
counterfeit immigration papers for the workers]; U.S. v. Shum, 496 F.3d 390 (5th Cir.
2007) [used defendant’s employment of undocumented to establish that he facilitated
their ability to remain in U.S. as an element necessary for a conviction for harboring,
concealing or shielding undocumented]. Congress has exempt certain religious activities
from the transporting, harboring or encouraging residence provisions where religious
organizations enable persons to be volunteer ministers and provide them basic living
expenses. INA §274(a)(1)(C). Congress in IIRIRA §203, in other contexts, made it a
criminal penalty to knowingly hire for employment at least 10 individuals in a 12-month
period with actual knowledge that the individuals are not authorized to work and have
been brought to U.S. in violation of INA §274.
Violation of the “bringing in” provision or conspiring to do so is now punishable by up
to 10 years. Violation of the transport, harboring and encouraging provision, if done for
commercial advantage or financial gain, is also up to 10 years; otherwise it is up to 5
years. It is also up to 5 years for aiding and abetting and up to 5 years for knowingly
hiring 10 persons, during any 12-month period, with knowledge that they are not
authorized to be employed and have been brought to U.S. in violation of INA §274.
Sentences may be increased by up to 10 years in the case of a person who has brought

24
aliens into the U.S. if the offense was part of an ongoing commercial enterprise, the
number of aliens transported were in groups of 10 or more and the aliens were
transported in a manner that endangered their lives or the aliens presented a life-
threatening risk to people in the U.S. INA §274(a)(4). If serious injury, penalties may be
up to 20 years, and if death occurs the death sentence may be imposed. INA
§274(a)(1)(B). U.S. v. Matus-Leva, 311 F.3d 1214, 1218–19 (9th Cir. 2002) [language
requiring harsher sentence if smuggling “results in the death of any person” is not void
for vagueness]. The statute now permits convictions for “reckless disregard.” Prosecution
generally must show willfulness. U.S. v. Morales-Rosales, 838 F.2d 1359 (5th Cir. 1988).
Alienage and status are elements of the crime. U.S. v. Alvarado-Machado, 867 F.2d 209,
212 (5th Cir. 1989) [reversed conviction where no admissible evidence on alienage]. At
least one court has found that the statutes apply extraterritorially. U.S. v. Delgado-
Garcia, 374 F.3d 1337, 1343–51 (D.C.Cir. 2004) [§274(a) applies extraterritorially where
Ecuadorian ship carrying potentially illegal persons was in international waters 170
nautical miles south of Guatemala and Mexico].
1. Bringing to the United States—“Bringing to” is under INA §274(a)(2), 8 U.S.C.
§1324(a)(2), and has been broadly defined to include “leading,” “escorting,” or
“causing [the alien] to come along” to the U.S. U.S. v. Yoshida, 303 F.3d 1145, 1151–
52 (9th Cir. 2002) [where defendant guided undocumented persons to board aircraft,
accompanied them on flight to U.S., and had their baggage claim receipts in phony
names in her underwear, facts were sufficient for conviction]. “Bringing to” includes
conduct where persons meet illegal aliens on U.S. side and transport them in U.S.
U.S. v. Aslam, 936 F.2d 751 (2d Cir. 1991) [conduct covered not only under
transporting provision, but also bringing in provision] as well as persons who
fraudulently obtain officially issued visas for noncitizens. U.S. v. Gasanova, 332 F.3d
297 (5th Cir. 2003) [defendants who brought topless dancers into the U.S. on J-1
visas claiming they were conducting academic research could not argue that they had
received official authorization]. U.S. v. Calhelha, 456 F.Supp.2d 350, 357–59 (D.
Conn. 2006) [court upheld a count in the indictment over defendant’s objection that
persons brought to U.S. on visa waiver were facially legal even if defendant arranged
their trips to work at his stores]. Includes aiding and abetting as well. U.S. v. Angwin,
263 F.3d 979, 997 (9th Cir. 2001), reh’g denied 271 F.3d 786, cert. denied 535 U.S.
966 (2002); U.S. v. Nolasco-Rosas, 286 F.3d 762 (5th Cir. 2002) [financial gain is not
an element of an aiding and abetting charge]. But “bringing to” language does not
include assisting someone to come to the U.S. where all fraudulent acts are
committed by defendant abroad. U.S. v. Assadi, 223 F.Supp.2d 208 (D.D.C. 2002)
[dismissed counts related to “bringing to” where person created false passports,
bought them airline tickets to U.S., procured boarding passes, and took them to the
airport, but never accompanied them to U.S.]. Or where the transporter completed all
acts and dropped persons in the U.S. before defendant became involved. U.S. v.
Lopez, 484 F.3d 1186 (9th Cir. 2007) [en banc[. But see U.S. v. Villanueva, 408 F.3d
193, 197–99 (5th Cir. 2005) [Congress intended statute prohibiting attempts to bring
undocumented persons to the U.S. to apply to extraterritorial conduct]; U.S. v.
Calhelha, 456 F.Supp.2d 350, 359–60 (D. Conn. 2006) [distinguished Assadi because
defendant met future workers at the airport and transported them].
Commercial/financial gain must be proved to uphold conviction. U.S. v. Munoz, 412

25
 F.3d 1043, 1046–48 (9th Cir. 2005) [where trial court gave jury instruction that relieved
government of its burden to prove financial gain, conviction was reversed]; U.S. v.
Calhelha, 456 F.Supp.2d 350, 360 (D. Conn. 2006) [commercial gain not only
includes funds for transporting persons but also gain to defendant’s business where
persons were working]. The “bringing to” (as distinguished from bringing in)
provision is a misdemeanor INA §274(a)(2)(A); however, penalties are substantially
enhanced if the person was brought to U.S. to commit a crime or it was an offense
done for commercial advantage or personal gain, or the alien was not immediately
brought to the DHS inspection station. INA §274(a)(2)(B). The section was also
amended to establish a violation for each alien. In order to obtain a conviction, the
defendant must have had specific intent to violate U.S. immigration law. U.S. v.
Barajas-Montiel, 185 F.3d 947, 951–52 (9th Cir. 1999). Attempt to commit a crime
also requires specific intent. U.S. v. Hernandez-Franco, 189 F.3d 1151, 1158 (9th Cir.
1999). But see U.S. v. Perez, 443 F.3d 772, 780–81 (11th Cir. 2006) [upholding
conviction on deliberate indifference standard].
2. Transporting—INA §274(a)(1)(A)(ii), 8 U.S.C. §1324(a)(1)(A)(ii)
2.a. Government must prove: (1) defendant transported or moved an alien within the
U.S.; (2) the alien was in the U.S. in violation of law; (3) the defendant knew or
acted in reckless disregard of this fact; and (4) the defendant acted willfully in
furtherance of the alien’s violation of the law [illegal presence]. U.S. v.
Hernandez, 913 F.2d 568 (8th Cir. 1990). Transporting “for gain” is no longer an
element of the crime. U.S. v. Romero-Cruz, 201 F.3d 373, 378 (5th Cir. 2000).
However, there is a separate aggravating circumstance for transporting for gain.
8 U.S.C. §1324(a)(1)(B)(i) that has been described as a separate offense. U.S. v.
Williams, 449 F.3d 635, 646 (5th Cir. 2006). The government may prove a
violation by circumstantial evidence. U.S. v. Stonefish, 402 F.3d 691, 695–97 (6th
Cir. 2005) [upheld conviction without any direct evidence whether the illegal
aliens in defendant’s car paid anyone to get from China to the U.S.]. If a
defendant is assisting a person to obtain lawful status, he is not acting “in
furtherance of” the alien’s illegal presence. U.S. v. Merkt, 764 F.2d 266 (5th Cir.
1985). Conviction requires knowledge or reckless disregard of alien’s illegal
status. U.S. v. Diaz, 936 F.2d 786 (5th Cir. 1991); U.S. v. Tapia, 761 F.2d 1488
(11th Cir. 1985). Indictment need not allege willfulness if government alleges
knowledge or reckless disregard. U.S. v. Rivera, 879 F.2d 1247 (5th Cir. 1989);
U.S. v. Mussaleen, 35 F.3d 692, 698 (2d Cir. 1994) [reckless disregard standard
upheld]. Defendant can have intent to further person’s illegal presence in U.S.
even if the defendant is engaged in a business to transport illegal aliens and is
simply doing it to earn a living. U.S. v. Hernandez-Guardado, 228 F.3d 1017,
1022–24 (9th Cir. 2000).
2.b. Defense raising potential legality of alien’s status unsuccessful. U.S. v. Aguilar,
883 F.2d 662, 676–80 (9th Cir. 1989) [assertion that Salvadorans are refugees
under U.S. and international law not a defense]; U.S. v. Alvarado-Machado, 867
F.2d 209 (5th Cir. 1989) [alien informants with I-210s outside U.S. were not
legally re-entering]; U.S. v. Rivera, 859 F.2d 1204, 1209 (4th Cir. 1988)
[eligibility for amnesty not a defense where entry and transportation illegal]; U.S.

26
 v. Rodriguez-Rodriguez, 840 F.2d 697 (9th Cir. 1988) [where defendant picked up
aliens and drove them from San Ysidio to L.A. it was not a defense that they were
eligible for adjustment]; U.S. v. Merkt, 794 F.2d 950 (5th Cir. 1986) [assertion
that transported aliens are refugees is not a defense]. But see U.S. v. Medina-
Garcia, 918 F.2d 4 (1st Cir. 1990) [where informants given I-210s, they are not
illegal aliens and no conviction for substantive offense possible, although
conspiracy and attempt convictions upheld]; U.S. v. Diaz, 936 F.2d 786, 788 (5th
Cir. 1991) [government must prove alien illegally in U.S., and cannot use his
conviction for being undocumented in U.S. against defendant to prove element of
crime]; U.S. v. Darsan, 811 F.Supp. 119 (W.D.N.Y. 1993) [rejected motion to
dismiss based upon eligibility for waiver because nonimmigrants are presumed to
be entering permanently and must prove their lack of intent]. A favorable
subsequent official action is not a defense.
2.c. Religious beliefs or free speech rights may not be a defense. U.S. v. Aguilar, 883
F.2d 662, 687, 694–96 (9th Cir. 1989); U.S. v. Merkt, 764 F.2d 266, 270–71 (5th
Cir. 1985) [defendant’s religious convictions as a sanctuary worker not a
defense]; American Baptist Churches v. Meese, 712 F.Supp. 756 (N.D. Cal.
1989).
2.d. Mens rea is an element of the statute, and the court must instruct the jury as to
criminal intent. U.S. v. Nguyen, 73 F.3d 887 (9th Cir. 1995) [statute is not strict
liability; must show criminal intent for conviction]. At least one circuit has
distinguished between a charge of attempting to transport, which it regards as a
specific intent crime because the government must prove conscious desire, and
actual transporting, which is treated as a general intent crime because the
government need only show knowledge or reckless disregard. U.S. v. Ramirez-
Martinez, 273 F.3d 903, 913–15 (9th Cir. 2001).
2.e. Willful transportation of illegal aliens is not per se a violation of the statute, for
the law prosecutes such conduct only when it furthers the alien’s unlawful
presence or entry. U.S. v. Parmelee, 42 F.3d 387, 391 (7th Cir. 1994) [defendant’s
guilty knowledge that transportation furthers an alien’s illegal presence is an
essential element of this crime]; U.S. v. One 1982 Ford Pick-Up, 873 F.2d 947
(6th Cir. 1989) [when defendant’s intent was not to further illegal presence of
Salvadorans being transported to find a job, no forfeiture]; Merkt, supra at 271;
U.S. v. Fierros, 692 F.2d 1291, 1295 (9th Cir. 1982), cert. denied, 462 U.S. 1120
(1983) [transport of alien to and from work not violation of (a)(2)]; U.S. v.
Moreno, 561 F.2d 1321, 1322 (9th Cir. 1977); U.S. v. Moreno-Duque, 718
F.Supp. 254 (D. Vt. 1989) [purpose of transportation must be to further violation
of law]; U.S. v. One 1984 Chevrolet Truck, 701 F.Supp. 213 (N.D. Ga. 1988) [in
forfeiture proceeding, government was not substantially justified where it sought
forfeiture for bringing person to and from work]; U.S. v. Bienvenido de la Rosa
Basilio, 682 F.Supp. 13 (D.P.R. 1988) [where alien was government informant
and his transportation occurred while being informant, court granted motion to
dismiss case at end of evidence because alien’s illegal transportation was not in
furtherance of illegal entry]; U.S. v. One 1982 Toyota, 642 F.Supp. 335 (N.D. Ill.
1986) [not all knowing transportation of alien is a violation of (a)(1)(B)]. But see

27
 U.S. v. Hernandez-Garcia, 284 F.3d 1138 (9th Cir. 2002) [a conviction for
transporting undocumented persons within U.S. does not require the government
to demonstrate an “entry” where the defendant knew that the persons who had
“come to” the border were undocumented]; U.S. v. Barajas-Chavez, 162 F.3d
1285 (10th Cir. 1999) (en banc) [the “in furtherance language” is broad enough to
encompass any person who transports someone, regardless of profit motive or
close relationship, with knowledge or with reckless disregard of fact that the
person transported is illegal and the transportation will help, advance, or promote
the continued illegal presence]; U.S. v. Velasquez-Cruz, 929 F.2d 420 (8th Cir.
1991); U.S. v. One 1982 Chevrolet Crew-Cab Truck, 810 F.2d 178 (8th Cir.
1987).
Whether the alien made an entry into the U.S. is irrelevant in defending a
smuggling charge. A conviction requires an entry under traditional standards. U.S.
v. Gonzalez-Torres, 309 F.3d 594, 599–600 (9th Cir. 2002) [the concept of entry
is not relevant to smuggling charges under §274(a)(2)(B)(iii) because Congress
revised the smuggling provisions under PL 99-603, Title I, Part B, §112 (1986),
and allowed for a conviction for “bringing to” the U.S., thereby deliberately
overruling case law requiring that a smuggler “bring into” the U.S. an alien]; U.S.
v. Esparza, 882 F.2d 143 (5th Cir. 1989) [transportation of Salvadorans out of
Harlingen, Texas, who were released on their own recognizance but given written
and verbal instructions to remain in area, is violation of statute].
3. Harboring/Concealing—INA §274(a)(1)(A)(iii), 8 U.S.C. §1324(a)(1)(A)(iii).
Sheltering with knowledge of alien’s illegal status may constitute
harboring/concealing. U.S. v. Shum, 496 F.3d 390, 392 (5th Cir. 2007) [upholding the
conviction of an employer who provided undocumented workers with false-identity
documents and who failed to submit record-keeping paperwork to Social Security
with respect to their employment]; U.S. v. Zheng, 306 F.3d 1080 (11th Cir. 2002)
[provision of both housing and employment constitutes harboring]; U.S. v. Kim, 193
F.3d 567, 574–75 (2d Cir. 1999) [employment constitutes harboring where employer
knew or recklessly disregarded person’s illegal status and took steps to help her
remain in employment undetected by INS]; U.S. v. Sanchez, 927 F.2d 376 (8th Cir.
1991); U.S. v. Lopez, 521 F.2d 437 (2d Cir.), cert. denied, 423 U.S. 995 (1975); U.S.
v. Rubio-Gonzalez, 674 F.2d 1067, 1073 (5th Cir. 1982) [approving a jury charge
defining harboring as “any conduct tending to substantially facilitate an alien’s
remaining in the United States illegally”]; U.S. v. Cantu, 557 F.2d 1173 (5th Cir.
1977) [where employer refused admittance to INS without warrant and aided aliens to
leave work place, statute violated]; U.S. v. Acosta de Evans, 531 F.2d 428, 430 (9th
Cir. 1976) cert. denied 429 U.S. 836 (1976) [holding that the word “harbor” means
“to afford shelter to” and does not require the intent to avoid detection]; U.S. v.
Belevin-Ramales, 458 F.Supp.2d 409 (E.D. Ky. 2006) [harboring does require proof
that the defendant is seeking to assist the person in an attempt to evade and avoid
detection]. Cf. U.S. v. Khanani, 502 F.3d 1281, 1285–89 (11th Cir. 2007) [although
“mere employment” is a defense to harboring and smuggling charges, it was not
reversible error for the district court to deny a jury instruction on mere employment
because the instructions as given already required proof beyond mere employment].
Aiding and abetting harboring is also a crime that the government may prove by

28
 establishing that: (1) the alien entered or remained in the U.S. in violation of law; (2)
the defendant concealed, harbored or sheltered the alien in the U.S.; (3) the defendant
knew or recklessly disregarded that the alien entered or remained in the U.S. in
violation of law; and (4) the defendant’s conduct tended to substantially facilitate the
alien remaining in the U.S. U.S. v. De Jesus-Batres, 410 F.3d 154, 160 (5th Cir. 2005)
[upheld aiding and abetting conviction based upon circumstantial evidence and
finding that financial gain is not an element of the crime]. Harboring also includes
keeping persons in virtual slavery for personal benefit, U.S. v. Bonetti, 277 F.3d 441
(4th Cir. 2002) [upholding 78-month sentence and ordering restitution under
Mandatory Victim Restitution Act for woman who was kept in virtually domestic
slavery for years]. The government must show the defendant intended to violate the
law. U.S. v. You, 382 F.3d 958, 965–66 (9th Cir. 2004).
4. Encouraging—INA §274(a)(1)(A)(iv), 8 U.S.C. §1324(a)(1)(A)(iv). This section
applies to encouraging an alien to reside in the U.S. where such residence is or will be
in violation of the law. Includes scheme to sell fraudulent work authorization and
other documents to aliens in the U.S. even if they initially entered legally. U.S. v.
Oloyede, 982 F.2d 133 (4th Cir. 1992) [lawyer’s conviction for representing persons
at INS who were sold false Social Security and employment documents by co-
conspirator]. It also includes, in the view of one circuit, fraudulently obtaining a
Social Security number for an undocumented person. U.S. v. Ndiaye, 434 F.3d 1270,
1296–98 (11th Cir. 2006) [where defendant obtained Social Security numbers with
cards that were marked “valid for work only with INS authorization,” the court still
regarded it as encouraging an undocumented person to reside in the U.S.].
5. Conspiracy or aiding and abetting the commission of any of the acts in INA
§274(a)(1)(A) is also a crime. INA §274(a)(1)(A)(v), 8 U.S.C. §1324(a)(1)(A)(v).
However, a conviction for aiding and abetting cannot be sustained unless the jury
unanimously agrees that the defendant was an aider and abettor.U.S. v. Williams, 449
F.3d 635, 647–48 (5th Cir. 2006) [where jury unanimously determined that defendant
was culpable but was not unanimous on aiding and abetting, his conviction was
reversed].
6. Bringing someone to the U.S. in reckless disregard of the fact that the alien has not
received prior official authorization, even if the alien is brought to an inspection
station, is a also crime under INA §274(a)(2)(B)(i),(ii), 8 U.S.C.
§1324(a)(2)(B)(i),(ii). Under INA §274(a)(2)(B)(iii) a person may be convicted if
s/he does not immediate bring and present the alien to an appropriate immigration
officer at a designated port of entry. United States v. Perez, 443 F.3d 772, 782 (11th
Cir. 2006) [a conviction will be sustained even if the defendant was stopped by police
and therefore not given an opportunity to present the smuggled alien to an
immigration officer at a port of entry].
7. Defenses
7.a. Government Misconduct—U.S. v. Valdovinos-Valdovinos, 588 F.Supp. 551 (N.D.
Cal.), rev’d on other grounds, 743 F.2d 1436 (9th Cir. 1984), cert. denied, 469 U.S.
1114 (1985) [INS agent passed as employer and lied to Mexican citizens about
entering U.S. without papers to trap transporters]. But see U.S. v. Alvarado-

29
 Machado, 867 F.2d 209 (5th Cir. 1989) [use of alien informants not improper]; U.S.
v. Morales-Quinones, 812 F.2d 604, 610–11 (10th Cir. 1987).
7.b. Mere Employment—Although “mere employment” is a defense to harboring and
smuggling charges, a least one court has found that it was not reversible error for
the district court to deny a jury instruction on mere employment. U.S. v. Khanani,
502 F.3d 1281, 1285–89 (11th Cir. 2007) [failure to give mere employment jury
instruction did not seriously impair the defendant’s ability to conduct their
defense because the instructions as given already required proof beyond mere
employment].
7.c. Duress—Duress offered as a legal excuse for committing the crime has no effect
because a duress defense is only effective if it negates the specific intent element
of attempted illegal entry. U.S. v. Solorzano-Rivera, 368 F.3d 1073, 1080–81 (9th
Cir. 2004) [where defendant entered voluntarily but due to pressure from Mexican
authorities chasing him, his defense went to a legal excuse but did not negate the
specific-intent element of the crime]. The burden of proof remains on the
defendant. U.S. v. Leal-Cruz, 431 F.3d 667 (9th Cir. 2005) [jury instruction
placing the burden on the defendant to prove duress in this circumstance was
correct]; U.S. v. Hernandez-Franco, 189 F.3d 1151, 1157–58 (9th Cir. 1999),
cert. denied, 503 U.S. 1206 (2000) [proof must be by a preponderance of the
evidence].
7.d. Public Authority Defense—When a defendant engages in criminal conduct at the
request of a government enforcement officer, with the reasonable belief that s/he
is acting as an authorized government agent to assist law enforcement, s/he lacks
the criminal intent to be convicted. U.S. v. Burt, 410 F.3d 1100 (9th Cir. 2005)
[reversed conviction for trial judge’s failure to give jury instruction on public
authority defense].
7.e. Unconstitutionality of INA §274—Attacks on the constitutionality of the
enhancement provision of INA §274, 8 U.S.C. §1324, as violative of Apprendi v.
New Jersey, 530 U.S. 466 (2000), on the theory that the statute permits increased
penalties, or under the due process clause on the theory that §274(a)(1)(B)(iv)
[smuggling resulting in the death of a person] is unconstitutionally vague, have
been rejected prior to Booker. U.S. v. Ramirez-Lopez, 315 F.3d 1143, 1157–59
(9th Cir. 2003).
8. Forfeiture and Seizure
8.a. CBP Responsible for Processing Asset Forfeitures—The general DHS forfeiture
statute is INA §274(b), 8 U.S.C. §1324(b), predicated on a violation of §274(a).
Judicial proceedings for forfeiture are in rem actions brought by the government
pursuant to the Supplemental Rules for Certain Admiralty and Maritime Claims.
As a result of the organizational changes in the legacy INS from the Homeland
Security Act of 2002, the authority for forfeiture and seizure enforcement has
primarily been transferred to CBP. 73 FR 9010–12 (Feb. 19, 2008). Under
8 C.F.R. §274.1 CBP and ICE officers may seize and forfeit that “has been or is
being used in the commission of a violation of any statutory authority involving
the unlawful introduction of aliens, contraband or proceeds of such introduction,

30
 pursuant to, but not limited to, section 274(a) of the Act (8 U.S.C. 1324(a)”). The
processing of asset forfeitures, however, will be consolidated into CBP. Former
regulations regarding forfeit and asset seizure under 8 C.F.R. §274 are no longer
valid. The processing of all asset forfeiture will be done in accordance with the
procedures in 19 C.F.R. §§162 and 171 and petitions for remission will be
permitted in accordance with 19 U.S.C. §1618. Cases under legacy INS
procedures included: Garcia-Rubio v. INS, 703 F.Supp. 859 (S.D. Cal. 1989)
[failing to provide notice that owner can seek a waiver violated due process];
Garcia v. Meza, 235 F.3d 287, 292 (7th Cir. 2000) [notice by publication
insufficient where individual’s name and address are known or easily
ascertainable]; Small v. U.S., 136 F.3d 1334 (D.C. Cir. 1998); U.S. v. Rogers, 108
F.3d 1247, 1252–53 (10th Cir. 1997); Matter of Sixty Seven Thousand Four
Hundred Seventy Dollars ($67,470), 901 F.2d 1540 (11th Cir. 1990) [claimant
who elects to rely on the remission or mitigation procedure may forfeit their right
to seek judicial review]; U.S. v. One Beechcraft King Air 300 Aircraft, 107 F.3d 829
(11th Cir. 1997) [constitutionality of forfeiture based only upon a showing of
probable cause was upheld. and cases cited therein]; McCoy v. U.S., 758 F.Supp.
299 (E.D. Pa. 1991); Gonzalez v. Rivkind, 858 F.2d 657 (11th Cir. 1988) [vehicle
owner was required to pay seizure related costs or sign indemnity agreement as a
condition precedent to the return of the vehicles where there was no judicial
determination that a violation of 8 U.S.C. §1324(a) had actually occurred].
Forfeiture can occur not only for transportation of aliens into the U.S. but “in”
the U.S. as well. U.S. v. One 1982 Chevrolet Crew-Cab Truck, 810 F.2d 178 (8th
Cir. 1987) [forfeiture upheld on summary judgment where owner put in no
evidence that he took “reasonable precautions”]; Tucson Ecumenical Council v.
Ezell, 704 F.Supp. 980 (D. Ariz. 1989) [forfeiture upheld where actions of owner
were in furtherance of alien’s illegal presence in this country]; U.S. v. One 1985
Ford F-250 Pickup, 702 F.Supp. 1308 (E.D. Mich. 1988) [8 U.S.C.
§1324(a)(1)(B) covers transportation within U.S.]; U.S. v. One 1984 Chevrolet
Trans Star, 623 F.Supp. 625 (D. Conn. 1985). Forfeiture may arise even if person
has a valid visa but misrepresents herself as a USC to gain entry. U.S. v. One 1989
Mercedes Benz, 971 F.Supp. 124 (W.D.N.Y. 1997). But mere transportation of
undocumented alien pursuant to employment is not a basis for forfeiture as a
violation of 8 U.S.C. §1324(a)(2). U.S. v. One 1984 Ford Van, 826 F.2d 918 (9th
Cir. 1987). Also government must demonstrate that the transportation was in
furtherance of illegal entry. But see U.S. v. One 1984 Ford Pickup Truck, No. CA
3-88-2291-R (N.D. Tex. Aug. 30, 1989) [seizure based upon transportation to and
from work], reported in 66 No. 36 Interpreter Releases 1033–34 (Sept. 18, 1989).
8.b. Civil Asset Forfeiture Reform Act of 2000 (CAFRA)—Prior to the Civil Asset
Forfeiture Reform Act of 2000 (CAFRA), the government needed only to
establish probable cause for the institution of a forfeiture by making a prima facie
showing. Many courts viewed this burden as more than mere suspicion, but less
than probable cause. U.S. v. One 1983 Homemade Vessel Named Barracuda, 625
F.Supp. 893 (S.D. Fla. 1986). The statute defined certain proof, including
government records, as establishing prima facie proof [INA §274(b)(3)]. The
burden of proof, however, was strictly construed. U.S. v. One 1982 Buick Regal,

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 670 F.Supp. 808 (N.D. Ill. 1987). Once the government established its burden, the
burden shifted to claimant to establish a defense to forfeiture. U.S. v. One 1985
Ford F-250 Pickup, supra; U.S. v. One 1984 Chevrolet Truck, 682 F.Supp. 1221,
1226 (N.D. Ga. 1988). Under CAFRA “a forfeiture proceeding commenced on or
after [Aug. 23, 2000]” requires the government to prove forfeiture by “a
preponderance of the evidence.” The new burden of proof has generally not been
found to apply retroactively to cases begun before, but pending on, Aug. 23, 2000.
U.S. v. One “Piper” Aztec “F” De Luxe Model 250 PA 23 Aircraft Bearing
Serial, No. 27-7654057, 321 F.3d 355 (3d Cir. 2003); U.S. v. Miscellaneous
Firearms, Explosives, 399 F.Supp.2d 881 (C.D. Ill. 2005), but see U.S. v. Real
Property in Section 9, 241 F.3d 796 (6th Cir. 2001). The government’s procedures
in administrative forfeitures have been found to violate the Fourth Amendment
and the Fifth Amendment due process guarantees. Gete v. INS, 121 F.3d 1285
(9th Cir. 1997).
8.c. Innocent Owner Defense—The innocent owner defense, although eliminated in
the statute, may not be eliminated as a constitutional matter. Calero-Toledo v.
Pearson Yacht Leasing Co., 416 U.S. 663 (1974). See U.S. v. One 1983
Homemade Vessel Named Barracuda, 858 F.2d 643 (11th Cir. 1988) [innocent
owner requires proof that owner did everything he could to avoid unlawful use of
property]; U.S. v. Four Million, Two Hundred Fifty-Five Thousand Dollars in
U.S. Currency, 762 F.2d 895, 905–06 (11th Cir. 1985), cert. denied, 474 U.S.
1056 (1986) [defense turns on owner’s actual, rather than constructive,
knowledge]; U.S. v. One 1985 Ford F-250 Pickup, supra [innocent owner defense
possible where vehicle is stolen or wrongfully possessed or owner did all that
reasonably could be done to prevent illegal use]. Cannot rely on compliance with
employer sanctions (verification) provisions as a basis to assert innocent owner
defense. U.S. v. One 1985 Ford F-250 Pickup, supra at 1312. Lienholder’s
interest in automobile may not be sufficient to have standing to assert innocent
owner defense. U.S. v. One 1982 Oldsmobile Cutlass, 709 F.Supp. 1542 (W.D.
Okla. 1989). Although hearsay may be admissible in forfeiture proceedings, it is
not admissible to rebut or establish the innocent owner defense. U.S. v. All Monies
($477,048.62) in Acc’t No. 90-3617-3, Israel Discount Bank, 754 F.Supp. 1467,
1471 (D. Hawaii 1991).
8.d. Unconstitutional Delay As a Defense—Another defense to forfeiture may be the
delay in the initiation of post-seizure forfeiture proceedings. Such delay may be
unconstitutional as a violation of due process. U.S. v. Eight Thousand Eight
Hundred and Fifty Dollars in U.S. Currency, 461 U.S. 555 (1983) [relying on
criteria in Barker v. Wingo, 407 U.S. 514 (1972) to determine whether delay
constitutional]; Gonzalez v. Rivkind, 858 F.2d 657 (11th Cir. 1988) [following
U.S. v. Eight Thousand Eight Hundred and Fifty Dollars and U.S. v. Von
Neumann, 474 U.S. 242 (1986) reversed lower court’s requirement mandating a
post-seizure hearing in all cases within 72 hours as too rigid because interested
parties did have an opportunity to challenge government’s seizure]. Delay in
proceeding may also work against the claimant because if s/he failed to bring
action timely, s/he may be barred by the doctrine of laches. Little v. U.S.,
35 F.Supp.2d 538 (E.D. Mich. 1999).

32
8.e. Other Defenses—Other defenses to forfeiture include: (1) duress, U.S. v. One
Lear Jet Aircraft, 617 F.Supp. 769, 775–76 (S.D. Fla. 1985); (2) that the property
was used as a common carrier; (3) that the property was taken in violation of the
criminal laws by the perpetrator; (4) that the evidence used to form the basis for
the forfeiture was in violation of the Fourth Amendment. Vance v. U.S., 676 F.2d
183 (5th Cir. 1982); U.S. v. $144,600 in U.S. Currency, 757 F.Supp. 1342, 1345
(M.D. Fla. 1991); (5) no “substantial connection” between the property and the
criminal activity in question. U.S. v. One Hundred Thirty-Four Thousand, Seven
Hundred and Fifty-Two Dollars ($134,752), 706 F.Supp. 1075 (S.D.N.Y. 1989);
(6) the failure to inform a noncitizen who is interrogated during a seizure of her
right to communicate with her embassy or consulate under Article 36 of the
Vienna Convention on Consular Relations. Jogi v. Voges, 480 F.3d 822 (7th Cir.
2007) [allowed noncitizen convicted of aggravated battery and deported to bring
civil rights claim for failure of state officials to notify him of the right to consular
assistance under Article 36(1)(b)]. But see Sanchez-Llamas v. Oregon, 548 U.S.
331 (2006) [in criminal proceeding suppression is not an appropriate remedy for
an Article 36 violation and regular state rules of procedural default apply to bar
Article 36 claims]; Medellin v. Texas, 128 S.Ct. 1346 (2008) [the International
Court of Justice Avena decision (Case Concerning Avena and Other Mexican
Nationals (Mex. v. U.S.), 2004 I.C.J. 12 finding the U.S. had violated Article
36(1)(b) of the Convention was not enforceable in a state court to preempt state
limitations on filing successive habeas petitions, notwithstanding the President’s
Memorandum directing enforcement, because the decision was not “self-
executing” and the remedy under the Treaty is referral to the U.N. Security
Council].
8.f. Res Taken Out of Jurisdiction. Jurisdiction over forfeiture does not cease where
res taken out of jurisdiction while case on appeal. Republic National Bank of
Miami v. U.S., 506 U.S. 80 (1992). The government, however, may initially raise
lack of jurisdiction on standing grounds to assert a claim either because claimant
lacks an interest in the property, U.S. v. One Parcel of Real Property, 682 F.Supp.
694 (D.R.I. 1988).
8.g. Fugitive Disentitlement Doctrine—The fugitive from justice doctrine does not bar,
per se, a party who is a fugitive from criminal proceedings from litigating a civil
in rem forfeiture proceeding that is related to the criminal proceeding. Degen v.
U.S., 517 U.S. 820 (1996). Post-Degen, Congress under CAFRA, has now given
the district judge authority to enforce the fugitive disentitlement doctrine under
certain conditions. 28 U.S.C. §2466; U.S. v. One 1988 Chevrolet Cheyenne Half-
Ton Pickup Truck, 357 F.Supp.2d 1321 (S.D. Ala. 2005) [where district court
would not previously order DHS and DOS to allow claimant back into the U.S.,
the disentitlement doctrine applied where claimant was subsequently indicted]
8.h. Litigation may be initiated for the return of property under 28 U.S.C. §1331 and a
claimant has a right to trial by jury where property seized on land. U.S. v. One
1976 Mercedes Benz 280S, 618 F.2d 453, 459 (7th Cir. 1980). A claimant also has
a right to initiate a collateral due process attack on an administrative forfeiture
where no notice was received. U.S. v. Giraldo, 45 F.3d 509 (1st Cir. 1995).

33
 8.i. Eighth Amendment Applies For Excessive Fines—Excessive nature of the
forfeiture may be litigated. Austin v. U.S., 509 U.S. 602 (1993). In Austin, the
court determined that the Eighth Amendment’s “excessive fine” language applied
to civil forfeiture proceedings. See also U.S. v. Bajakajian, 524 U.S. 321 (1998)
[forfeiture of full amount of money sought to be transported out of the country
($357,144) was excessive fine under Eighth Amendment, where action was based
on in personam jurisdiction arising from criminal statute]; U.S. v. One Single
Family Residence, 13 F.3d 1493 (11th Cir. 1994).
8.j. Attorney’s Fees—Attorney’s fees are recoverable by the claimant “in any civil
proceeding to forfeit property ... in which the claimant substantially prevails.”
28 U.S.C. §2465 (b)(1). Fees are not limited to the statutory hourly cap set under
EAJA. U.S. v. $60,201.00 in U.S. Currency, 291 F.Supp.2d 1126, 1129–30 (C.D.
Cal. 2003) [granting prevailing market hourly rates of $300 and $225 per hour].
Prior to the Civil Asset Forfeiture Reform Act of 2000, which now provides for
attorneys’ fees, a claimant could recover fees under the Equal Access to Justice Act,
where government’s forfeiture was not substantially justified. U.S. v. Marolf, 277
F.3d 1156 (9th Cir. 2002) [administrative forfeiture without notice, argument that
claimant’s motion was barred by laches, and record as a whole demonstrated
government lacked substantial justification]; U.S. v. One 1984 Ford Van, 873 F.2d
1281 (9th Cir. 1989) [government not substantially justified where they seized van
even though the transportation of the alien was not in furtherance of illegal status];
U.S. v. One 48 Foot White Colored Sailboat Named Libertine, 59 F.Supp.2d 362,
365–66 (D.P.R. 1999) [government had no legal justification for forfeiture because
persons presented themselves at port of entry]; U.S. v. Eleven Vehicles, 966 F.Supp.
361 (E.D. Pa. 1997) [even if government had probable cause to seize vehicle they
were not substantially justified in defending forfeiture]; U.S. v. One 1984 Chevrolet
Truck, 701 F.Supp. 213 (N.D. Ga. 1988); Doe v. U.S., 16 Cl. Ct. 412 (Ct. Cl. 1989)
[informer of immigration violations concerning Lear Jet granted fees under EAJA];
WSB ¶18,677a.16. See also U.S. v. Certain Real Property at 2323 Charms Rd., 728
F.Supp. 1326 (E.D. Mich. 1990) [in drug related seizure magistrate’s issuance of
seizure warrant does not make government position substantially justified under
EAJA]. But see U.S. v. B&M Used Cars, 860 F.2d 121 (4th Cir. 1988).
C. Aiding or Assisting Inadmissible Persons to Enter—INA §277, 8 U.S.C. §1327. Any
person is subject to a potential 10-year sentence for knowingly aiding or assisting a
person to enter the U.S., if that person is inadmissible on criminal or security grounds.
Knowing that the inadmissible person has a prior felony conviction is not an element of
the crime that the U.S. must prove. U.S. v. Flores-Garcia, 198 F.3d 1119 (9th Cir. 2000)
[the government need only prove that the defendant knew the person was inadmissible].
D. Marriage Fraud—INA §275(c), 8 U.S.C. §1325(c). Imprisonment for up to 5 years
and $250,000 fine. To convict a person under this statute the government generally must
prove: (1) the person knowingly entered into a marriage; (2) the marriage was entered
into for the purpose of evading a provision of the immigration laws; and (3) the person
knew or had reason to know of the immigration laws. U.S. v. Islam, 418 F.3d 1125, 1128
(10th Cir. 2005) [upheld conviction on grounds a reasonable jury could have found that
marriage was entered into to evade immigration laws and that defendant knew he was

34
violating the immigration laws]; U.S. v. Darif, 446 F.3d 701, 709–11 (7th Cir. 2006)
[government does not have to establish that parties did not intend to have a life together
because defendant could have intended to establish a life together with the USC but still
enter the marriage for purposes of evading the immigration laws]; U.S. v. Vickerage, 921
F.2d 143 (8th Cir. 1990) [upheld conviction where parties knew each other, had sex
before and after marriage, but marriage was one of convenience]. But see U.S. v.
Orellana-Blanco, 294 F.3d 1143, 1148–52 (9th Cir. 2002) [reversed conviction because
admission of defendant’s statement to INS was improper and the effect was prejudicial;
in regard to conflicting evidence between husband and wife, the court found that: “An
intent to obtain something other than or in addition to love and companionship from that
life does not make a marriage a sham”]. However, it does not require that the government
prove that the defendant knew of the specific immigration statute violated. U.S. v.
Chowdhury, 169 F.3d 402, 406–07 (6th Cir. 1999) [relying on decision on willful
conduct in Bryan v. U.S. 524 U.S. 184 (1998)]. Can also be charged with conspiracy to
defraud the government by aiding and abetting others to enter into fraudulent marriages.
U.S. v. Anwar, 428 F.3d 1102 (8th Cir. 2005) [defendant solicited female acquaintances
to marry Pakistani men to allow the men to evade immigration laws].
E. Fraudulent Documents for Entry/False Statements—18 U.S.C. §1546(a)
1. Marriage Fraud—Marriage fraud charge possible where alien falsely stated (on I-485/I-
130) that he and wife were living together. U.S. v. Al-Kurna, 808 F.2d 1072 (5th Cir.
1987); U.S. v. Bartle, 835 F.2d 646 (6th Cir.), cert. denied, 108 S.Ct. 1245 (1989); U.S.
v. Silien, 825 F.2d 320 (11th Cir. 1987) [court rejected selective prosecution claim
based on failure to prosecute USC spouses]. But see U.S. v. Qaisi, 779 F.2d 346 (6th
Cir. 1985) [not material fact that parties not living together because separation not test].
To obtain conviction applicants have to make false statement under oath. U.S. v. Chu, 5
F.3d 1244 (9th Cir. 1993); the statement has to be made in an application, affidavit, or
other documents required by immigration laws or regulations; and the defendant has to
make the statement knowing it was false. And the statement must be a materially false
statement U.S. v. Kone, 307 F.3d 430, 434–36 (6th Cir. 2002) [applying the Kungys
materiality standard in arranged marriage cases]. There is some confusion among the
circuit courts as to the significance of a marriage that is valid under state law even if it
was entered into for a fraudulent purpose. Compare U.S. v. Elzahabi, 517 F.Supp.2d
1121 (D. Minn. 2007) [the formal validity of a marriage is not a defense to knowingly
procuring a “green card” by means of any false claim or statement or otherwise
procuring it by fraud] with U.S. v. Diogo, 320 F.2d 898 (2d Cir. 1963) [the technical
validity of the marriage was a defense to both a charge under 18 U.S.C. §§1546 and
§1001].
2. Fraudulent Documents Used for Entry—This section of the statute only applies to
“documents whose primary raison d’être is the facilitation of entry into the country.”
U.S. v. Campos-Serrano, 404 U.S. 293, 299 (1971). A prior version of the statute did
not permit a conviction for possession of a fraudulent passport from a nonexistent
country. U.S. v. Fox, 766 F.Supp. 569 (N.D. Tex. 1991); U.S. v. Vargas, 380 F.Supp.
1162 (E.D.N.Y. 1974). The amended statute in 1986 provides for a conviction for
someone found to possess a foreign counterfeit passport. U.S. v. Rahman, 189 F.3d 88,
118–19 (2d Cir. 1999) [distinguished Vargas, Fox and Campos-Serrano as pre-1986

35
 Act cases and noted that the 1986 amendment to §1546 eliminated the language that a
document must be “required” for entry and replaced it with language making it illegal
to possess a fraudulent document that is “prescribed by statute or regulation” for entry]
U.S. v. Osiemi, 980 F.2d 344 (5th Cir. 1993) [same in regard to fraudulent passport
even where it did not contain a visa]. It may also include predicate documents such as
labor certifications and I-140s. U.S. v. Ryan-Webster, 353 F.3d 353 (4th Cir. 2003)
[upheld conviction for fraudulent drafting of ETA-750s and I-140s by lawyer]. Use of
rubber stamp does not constitute “impression” for purpose of statute. U.S. v. Naaman,
813 F.2d 1577 (9th Cir. 1987). However, a person may not be convicted under
paragraph one of §1546(a) unless the defendant not only procured a “green card” by
fraud but that s/he possessed a fraudulent (forged, counterfeited, altered or falsely
made) alien registration card. U.S. v. Krstic, 528 F.Supp.2d 1245 (D. Or. 2007) [court
dismissed indictment for failure to alleged that alien card was fraudulent]. A person
may be convicted under this statute for aiding and abetting even if the actual NIV or IV
applicant lacked criminal intent. U.S. v. West Indies Transport, Inc., 127 F.3d 299,
306–07 (3d Cir. 1997) [employer liable for aiding workers to obtain D-1s where they
were working dry-dock and workers did not have criminal intent]. Because unlawful
entry in a fraudulent document case is not an element of the crime, submission of
evidence of unlawful entry may be excluded as prejudicial. U.S. v. Amaya-Manzanares,
377 F.3d 39, 45–46 (1st Cir. 2004) [reversed conviction in possession of fraudulent
green card case where judge allowed relevant but prejudicial evidence by government
that defendant made an unlawful entry].
2.a. Asylum Defense. Prosecuting a refugee for false documents may not be in
violation of the UN Convention and Protocol Relating to the Status of Refugees.
U.S. v. Malenge, 472 F.Supp.2d 269 (N.D.N.Y. 2007) [where defendant did not
seek asylum at border and did not disclose that false passport was used to flee the
Republic of the Congo, court declined to dismiss indictment as violation of the
Refugee Convention]; U.S. v. Barry, 500 F.Supp.2d 125 (N.D.N.Y. 2007) [where
defendant presented false passport at border and after being detained stated she
was trying to get to U.S. to flee persecution, it did not violate the Convention and
Protocol to prosecute her] .
3. False Statements on Application Submitted to DHS—The section requires that a
defendant knowingly make a false material statement under oath in an application
required by DHS statutes or regulations. U.S. v. O’Connor, 158 F.Supp.2d 697, 720–
21 (E.D. Va. 2001) [fraud in applications for investors under the EB-5 program]. See
also U.S. v. Katkhordeh, 477 F.3d 624 (8th Cir. 2007) [evidence of marriage in Iran
sufficient to uphold conviction for fraud in visa application under second preference
as unmarried son].
4. Materiality—At least one court has found that materiality must be judged based upon
the entire immigration process and not one single document. U.S. v. Wu, 419 F.3d 142
(2d Cir. 2005) [where I-864 contained false statements that were not material,
government can still convict by showing that I-864 was part of the larger process of
falsely petitioning, though the use of an I-130 petition, for relatives].
5. Scope—Section 1546(a) covers not only false statements, but also the presentation of
a document that “fails to contain any reasonable basis in law or fact.” IIRIRA §214.

36
6. Includes All Fraudulent Immigration-Related Documents—Statute also includes
knowingly accepting and receiving counterfeit immigration documents as evidence of
employment authorization. U.S. v. DeCruz, 82 F.3d 856 (9th Cir. 1996). See also U.S.
v. Uvalle-Patricio, 478 F.3d 699 (5th Cir. 2007) [statute includes the possession of
blank I-551 permits even if they were fraudulent]. A person may be convicted under a
deliberate indifference standard. U.S. v. DeCruz, 82 F.3d at 865–66. Willfulness is
not required. U.S. v. Polar, 369 F.3d 1248, 1252–55 (11th Cir. 2004).
7. Penalties—The penalty for violation of §1546(a) is up to 25 years if committed to
facilitate international terrorism; up to 20 years if committed to facilitate drug
trafficking; up to 15 years if more than the second offense; and up to 10 years if first
or second offense.
F. Identification Document Fraud—18 U.S.C. §1546(b). Whoever uses an identification
document knowing that the document was not issued lawfully or is false or whoever
submits a false attestation for purposes of satisfying the requirements for I-9/employer
verification purposes is guilty of violating this subsection. A Social Security card in the
view of one court is not an identification document for purposes of this section. U.S. v.
Tyson Foods, Inc., 258 F.Supp.2d 809, 812–19 (E.D. Tenn. 2003). At least one court has
allowed the use of information from a spouse who battered the alien to obtain a
conviction for a false I-9. U.S. v. Maswai, 419 F.3d 822 (8th Cir. 2005) [court rejected
argument that 8 U.S.C. §1367, prohibiting the use of information about a battered spouse
in removal proceedings applied to a criminal action under 18 U.S.C. §1546]. Penalties for
violating §1546(b) include fine and imprisonment for not more than 5 years.
G. Fraud and Related Activity in Connection with Identification Documents—
18 U.S.C. §1028. Includes knowingly and without lawful authority producing, transferring,
possessing or possessing with intent to use an identification document or false
identification document which appears to be issued by or under the authority of the U.S., a
state, foreign government or international governmental or generic governmental
organization. 18 U.S.C. §1028(a). A person also violates the statute when she “knowingly
transfers, possesses, or uses, without lawful authority, a means of identification of another
person with the intent to commit, or to aid or abet, or in connection with, any unlawful
activity that constitutes a violation of Federal law, or that constitutes a felony under any
applicable State or local law” 18 U.S.C. §1028(a)(7). Penalty may be up to 15 years or up
to 20 if used to facilitate drug crime and up to 30 if used to facilitate terrorism. To obtain a
conviction under the statute for possession there must be “a sufficient connection between
the defendant and the contraband to support the inference that the defendant exercised
dominion and control over the substance.” U.S. v. Barajas-Montiel, 185 F.3d 947, 955–56
(9th Cir. 1999) [reversed conviction where documents found in vase in defendant’s
bedroom that was also used and occupied by other persons].
1. “Identification document” under the statute is specifically defined to mean “a
document made or issued by or under the authority of the United States Government,
a State, political subdivision of a State, a sponsoring entity of an event designated as a
special event of national significance, a foreign government, political subdivision of a
foreign government, an intentional governmental or an international quasi-
governmental organization which, when completed with information concerning a
particular individual, is of a type intended or commonly accepted for the purpose of

37
 identification of individuals” 18 U.S.C. §1028(d)(3) U.S. v. Singh, 335 F.3d 1321
(11th Cir. 2003) [conviction under statute involving state driver’s licenses, military
identification cards, and U.S. government identification cards].
2. “Means of Identification” includes a “social security number, date of birth, official
State or government issued driver’s license or identification number, alien registration
number, government passport number, employer or taxpayer identification number.”
18 U.S.C. §1028(d)(7) .
H. Aggravated Identity Theft in Conjunction with Immigration Crimes—18 U.S.C.
§1028A. A person who transfers, possesses or uses the “means of identification” of
another person during the commission of various felonies including false claim to US
citizenship, failure to depart, failure to register, false documents, employer sanctions,
nationality related criminal conduct, or alien smuggling will receive an enhanced
consecutive and mandatory penalty of 2 years, and, if related to terrorism, 5 years.The
statute, for example, provides for possession of the identification of another during and in
relation to a violation of 8 U.S.C. §1326 regarding entering or found in the U.S. U.S. v.
Crounsset, 403 F.Supp.2d 475 (E.D. Va. 2005) [upheld conviction for using another
person’s alien registration number to illegally re-enter]. For a definition of “identification
document” and “means of identification” see H supra.
1. Circuit split whether the government must provide that the defendant knew that the
“means of identification” he possessed actually belonged to another person or simply
prove that the means of identification was not his or her own. U.S. v. Godin, 534 F.3d
51 (1st Cir. 2008) [Conviction reversed, applying rule of lenity, where government
did not prove beyond a reasonable doubt that defendant knew the false social security
card was assigned to another person]; U.S. v. Miranda-Lopez, 532 F.3d 1034 (9th Cir.
2008) [same]; U.S. v. Villanueva-Sotelo, 515 F.3d 1234 (D.C. Cir. 2008) [Dismissal
affirmed where government could not prove that defendant knew that the number on
his fake social security card belonged to another person]; but see U.S. v. Mendoza-
Gonzalez, 520 F.3d 912 (8th Cir. 2008)[In raid at Swift, court held that actual
knowledge that photo ID with another person’s name and social security card
belonged to an actual person was not necessary for a conviction]; U.S. v. Hurtado,
508 F.3d 603, 608-10 (11th Cir. 2007) [upheld conviction for use of false birth
certificate to obtain passport without proof that defendant knew birth certificate
belonged to someone else]; U.S. v. Montejo, 442 F.3d 213 (4th Cir. 2006) [upheld
plea for possession and use of an I-551 and social security card where defendant did
not know it had been assigned to another].
I. Knowing and Willful Use of a False Passport. 18 U.S.C. §1543. This section permits
the prosecution of a person carrying a false passport from any country, not just the United
States. U.S. v. Dangdee, 616 F.2d 1118, 1119 (9th Cir. 1980); U.S. v. Simo, 68 F.Supp.2d
706 (E.D. Va. 1999) [and cases cited therein]. Political asylum is not a duress defense
unless defendant can show s/he had no legal alternative. Simon, supra.
J. Knowing and Willful False Statement to Obtain U.S. Passport—18 U.S.C. §1542.
Includes securing a passport through a false statement and making a false statement in an
application for a passport. U.S. v. Connors, 441 F.3d 527, 531 (7th Cir. 2006) [upheld
conviction where defendant’s passport was confiscated at U.S.-Canadian border by

38
customs officers and he applied for a new one stating his previous passport was “missing”];
U.S. v. Suarez-Rosario, 237 F.3d 1164 (9th Cir. 2001) [government did not have to prove
real identity of defendant but only that he used a false statement to obtain a passport]. At
least one court has found that the statute covers false statements made in accompanying
documents. U.S. v. Baum, 380 F.Supp.2d 187, 204 (S.D.N.Y. 2005) [forgery of ex-
husband’s signature on accompanying letter for child’s passport is part of passport
application by virtue of 22 C.F.R. §51.20].
K. Destruction of Official Documents—18 U.S.C. §2071(a). Willfully and unlawfully
destroying or causing another person to destroy or attempt to destroy any record, paper
document or other thing filed or deposited in a public office of with any public officer of
the United States. U.S. v. Salazar, 455 F.3d 1022 (9th Cir. 2006) [upheld conviction of
contract supervisor at California Service Center who directed others to shred thousands of
documents that were scheduled to be interfiled in A files].
L. False Statements. 18 U.S.C. §1001. Any false or fraudulent misrepresentation
regarding the actual purpose of a marriage in order to gain status may violate 18 U.S.C.
§1001. U.S. v. Zalman, 870 F.2d 1047, 1055 (6th Cir. 1989). This includes an
exculpatory denial during the course of questioning. Brogan v. U.S., 522 U.S. 398 (1998)
[rejected exculpatory no doctrine]. False ID at U.S. border is punishable under 18 U.S.C.
§1001. U.S. v. Popaw, 821 F.2d 483 (8th Cir. 1987). Aiding and abetting in a false
statement to a DHS officer that is material in the course of an investigation is a violation
of §1001. U.S. v. Mitchell, 388 F.3d 1139 (8th Cir. 2004) [where person aided alien who
was smuggled into U.S. for sex but who falsely said she was raped]. However, cannot
convict where statement is not literally false. U.S. v. Moses, 94 F.3d 182, 188 (5th Cir.
1996).
M. Failure to Disclose Role as Document Preparer. It is a crime punishable by up to 5
years in prison to knowingly and willfully fail to disclose, conceal, or cover up the fact
that a person has prepared or assisted in the preparation of a falsely made application for
immigration benefits for a fee or other remuneration. INA §274C(e), 8 U.S.C. §1324c(e).
N. False Claim to U.S. Citizenship—A person who “falsely and willfully represents
himself to be a citizen of the United States” shall be fined or imprisoned. 18 U.S.C. §911.
The 3 elements of the crime are a false claim, a willful misrepresentation, and a
misrepresentation to someone with good reason to inquire into the defendant’s
citizenship. U.S. v. Romero-Avila, 210 F.3d 1017 (9th Cir. 2000) [rejecting the defense
that the exact identity of the person lied to is an element of the offense]. To establish a
willful violation the government must prove that the defendant acted with knowledge that
his conduct was unlawful. U.S. v. Ramirez, 495 F.Supp.2d 92, 118–20 (D. Me. 2007)
[quoting Bryan v. United States and finding that Cuban national willfully made a false
claim to citizenship when purchasing a firearm]. But a person may not be convicted
under §911 for a false claim to U.S. nationality. U.S. v. Karaouni, 379 F.3d 1139
(9th Cir. 2004) [where defendant checked off I-9 box that stated he was a citizen or
national of the U.S., he could not be convicted under §911 that makes it a crime only to
make a false claim to citizenship]. A knowingly false statement or claim that a person is
or at any time has been a citizen or national of the U.S. with the intent to obtain for
himself or another a federal or state benefit or the right to vote is also a crime. 18 U.S.C.
§1015(e)–(f). Also, it is a crime to knowingly make any false statement under oath, in

39
any case, proceeding, or matter relating to any law regarding naturalization, citizenship or
registry of aliens. 8 U.S.C. §1015(a). This statute, in the view of one circuit, does not
require materiality. U.S. v. Abuagla, 326 F.3d 277 (4th Cir. 2003). The Eleventh Circuit
has held there is no “exculpatory no” defense in 18 U.S.C. §1001 cases to false claims of
U.S. citizenship. U.S. v. Lopez-Iraeta, 129 F.3d 1206 (11th Cir. 1997) [rejecting defense
that person merely answering question during interrogation rather than affirmatively
misrepresenting his citizenship]. See also Brogan v. U.S., 522 U.S. 398 (1998) [rejecting
exculpatory no doctrine in §1001 cases]. The statute has also withstood an over breadth
attack under the First Amendment. U.S. v. Esparza-Ponce, 193 F.3d 1133, 1137–38 (9th
Cir. 1999). In cases arising under 18 U.S.C. §1015(f) a defendant may not be charged if
his or her: (1) parents were or are USCs; (2) the person permanently resided in the U.S.
prior to 16; and (3) the person reasonably believed at the time of such violation that he or
she was a USC. The exception is applied retroactively as if included in IIRIRA and
applies to any person prosecuted on or after Sept. 30, 1996, as long as criminal
proceedings were not concluded by Oct. 30, 2000.
O. Voting in Federal Election—18 U.S.C. §611. It is unlawful for an alien to vote in a
federal election. This section does not apply if the defendant’s: (1) parents were or are
USCs; (2) the person permanently resided in the U.S. prior to 16; and (3) the person
reasonably believed at the time of voting that s/he was a USC. The exception is applied
retroactively as if included in IIRIRA and applies to persons prosecuted on or after Sept.
30, 1996, unless criminal proceedings were concluded before Oct. 30, 2000. At least one
circuit has found that the appropriate mens rea for conviction is “general intent” to engage
in the prohibited conduct and not specific intent. U.S. v. Knight, 490 F.3d 1268 (11th Cir.
2007)
P. Employer Sanctions—INA §274A, 8 U.S.C. §1324a. IRCA makes it unlawful to
“knowingly” hire, recruit, or refer for a fee an alien not authorized to be employed.
Employees in employment before Nov. 7, 1986, are grandfathered. Civil penalties for
first, second, and third offenses; criminal penalties for pattern or practice violations.
There is also a criminal penalty for hiring 10 or more aliens in a 12-month period
knowing they are not authorized to work and that they entered the U.S. in violation of
INA §274; U.S. v. Calhelha, 456 F.Supp.2d 350, 363 (D. Conn. 2006) [facts sufficient to
allege pattern and practice for person who arranged employees from Portugal to work at
franchise stores]. Civil fines can be imposed for failure to complete and retain
verification forms.
Q. Failure to Depart After Deportation Order—INA §243, 8 U.S.C. §1253. Willful
failure to depart U.S. within 90 days of final deportation order or to present oneself
pursuant to bag and baggage letter is a felony punishable up to 4 years (or 10 years if
person is deportable under the smuggling, criminal offense, security, or failure to
register/falsification of documents ground) U.S. v. Ayeni, 66 F.Supp.2d 617 (M.D. Pa.
1999) [a collateral attack on the deportation order is permissible notwithstanding INA
§242(a)(2)(C) in light of INA §242(b)(7), but counsel’s failure to submit brief and to
notify client of deportation order does not render deportation violative of due process].
The court may suspend the sentence based on criteria under the statute. One section
includes conspiracy (with others, presumably an attorney) to take any action to prevent
the person’s departure. 8 U.S.C. §1253(a)(1)(C). If the validity of a removal order has not

40
previously been decided, a person charged with a crime under §1253 may challenge the
removal order by filing a motion before trial with the court. INA §242(b)(7)(A), 8 U.S.C.
§1252(b)(7)(A). One court has recognized a necessity defense, where person denied
asylum, but is afraid to return to his home country. U.S. v. Kpomassie, 323 F.Supp.2d 894
(W.D. Tenn. 2004) [person ordered deported who willfully resisted physical deportation
may have a necessity defense that he fears return to his country despite his unsuccessful
claim for asylum because the removal proceeding and the criminal proceeding are
separate].
R. Willful Failure to Comply with Terms of Release Order—INA §243(b), 8 U.S.C.
§1253(b). When a person is released pursuant to INA §241(a)(3), 8 U.S.C. §1231(a)(3),
and willfully fails to comply with regulations and requirements under the section, or
knowingly gives false information in response to an inquiry under the section, s/he may
be imprisoned not more than one year and fined not more than $1,000. U.S. v. Nguyen,
465 F.3d 1128, 1130–31 (9th Cir. 2006) [where supervised release order required
respondent not “commit any crimes,” his nolo contendere pleas were insufficient to
establish guilt].
S. Amnesty and SAW Fraud—Under INA §§210(b)(7)(A), 245A(c)(6), 8 U.S.C.
§§1160(b)(7)(A), 1255a(c)(6), the filing of false applications or the creating of false
documents for amnesty or SAW applicants is a criminal offense. U.S. v. Sanchez, 927
F.2d 376 (8th Cir. 1991).
T. Escape from Removal—An escape from the custody of U.S. officers where there was
a lawful arrest for removal proceedings is punishable by a $1,000 fine or one year
imprisonment. 18 U.S.C. §751(a). The elements of the offense are that the defendant: (1)
was confined in the detention facility at the direction of the AG; (2) for removal
proceedings; and (3) escaped from confinement. U.S. v. Rodriguez-Fernandez, 234 F.3d
498 (11th Cir. 2000) [reversed conviction of person detained at Krome where there was
no order, directive or document from the AG or her representative directing the detention,
and the only evidence was testimony from an INS officer that, after review of the file, he
determined detention]. The defense of fraud and duress has been successfully employed
where the person established he would be persecuted if returned to his country. U.S. v.
Dagnachew, 808 F.Supp. 1517 (D. Colo. 1992) [when Ethiopian who was denied asylum
escaped from detention court acquitted him on grounds of duress, because he escaped
INS detention to avoid persecution].
U. EWI / Attempt to Enter—INA §275(a), 8 U.S.C. §1325(a)
1. Improper entry at time or place other than designated port of entry. Cannot
collaterally attack validity of a summary exclusion order in this proceeding.
2. A conviction requires an entry under traditional standards. U.S. v. Gonzalez-Torres,
309 F.3d 594, 597–99 (9th Cir. 2002) [where defendant was under observation before
crossing the Mexican border his conviction was reversed because he had not made an
entry].
3. Civil penalty where apprehended for entering or attempting to enter ($50–$250).
V. High Speed Flight from Immigration Checkpoint—18 U.S.C. §758. Fleeing or
evading a checkpoint in a motor vehicle above speed limit.

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W. Failure to Maintain a Green Card—It is a criminal misdemeanor under 8 U.S.C.
§1304(e) for an LPR to fail to keep his green card with him at all times.
X. Aliens in Possession of a Firearm—Under 18 U.S.C. §922(g)(5)(A), it is illegal for
“an alien ... illegally or unlawfully in U.S.” to possess a firearm. U.S. v. Mendez, 514
F.3d 1035, 1042–43 (10th Cir. 2008) [evidence was sufficient to find that defendant was
illegal where he was born in Mexico, provided officers with a false Social Security
number, and the government had no evidence of valid authorization to enter the country].
In order to prove a violation, the government must establish that the defendant was an
“alien,” that he was unlawfully in U.S., and that he knowingly possessed a firearm and
ammunition in or affecting interstate commerce. U.S. v. Diaz, 519 F.3d 56, 66 (1st Cir.
2008) [knowing possession may be by either actual or constructive possession and
alienage and unlawful status may be established by DHS records including warrants and
orders of removal even if they may be established by a standard lower than beyond a
reasonable doubt]. The type of ammunition or weapon possessed may be irrelevant. See
e.g., U.S. v. Guidry, 406 F.3d 314, 322 (5th Cir. 2005) [type of weapon not an essential
element of the crime]; U.S. v. Levy, 440 F.Supp.2d 162, 164 (E.D.N.Y. 2006) [type of
ammunition not essential]. The law has been expanded to include nonimmigrants except
in certain circumstances. 18 U.S.C. §922(g)(5)(B). NIV holders in certain circumstances
are prohibited from possessing and/or transferring firearms and ammunition without a
waiver under ATF regulations. 27 C.F.R. pt. 478. U.S. v. Bazargan, 992 F.2d 844 (8th
Cir. 1993) [F-1 student who did not properly transfer schools under INS procedures
convicted]; But see U.S. v. Atandi, 228 F.Supp.2d 1285 (D. Utah 2002) [although IJ made
a finding of deportability regarding student who was out of status but did not enter final
order of deportation because the student had relief in the form of AOS, the student was
not illegally or unlawfully in the U.S. and district court dismissed indictment]. A person
on bond during removal proceeding is still in illegal or unlawful status for purposes of
§922(g)(5). U.S. v. Bavo-Muzquiz. 412 F.3d 1052 (9th Cir. 2005). And persons who are
EWI without parole status are prohibited from possessing weapons under ATF
regulations. 27 C.F.R. §478.11. So are applicants for TPS, U.S. v. Flores, 404 F.3d 320
(5th Cir. 2005) [a person who applies for TPS who entered the U.S. illegally may be
charged criminally as an alien illegally or unlawfully in the U.S. in possession of a
firearm in violation of 18 U.S.C. §922(g)(5)(A)] or adjustment applicants for LIFE, U.S.
v. Lucio, 428 F.3d 519 (5th Cir. 2005) [adjustment of status applicant for LIFE with
employment authorization convicted under 18 U.S.C. §922 (g)(5)(A)] on the theory that
the status does not constitute lawful presence. However, a person granted TPS is not an
illegal alien or unlawfully in U.S. for purposes of §922(g)(5)(A). U.S. v. Orellana, 405
F.3d 360 (5th Cir. 2005) [applying rule of lenity given the ambiguity of §922(g)(5)(A)
and the questionable interpretation of the ATF regulation, Congress did not intend to
criminalize the possession of firearms by persons granted TPS]. A defendant cannot be
charged both under subsection (A) (illegally in US) and (B) (entered on NIV) because
double jeopardy and the statute’s construction prohibits double punishment for the same
set of facts.U.S. v. Elrawy, 448 F.3d 309 (5th Cir. 2006).
Y. Social Security Fraud—42 U.S.C. §408(a)(7)(B). Imprisonment up to 5 years for the
use of another person’s Social Security number.

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Z. Withholding Documents to Further Trafficking in Persons—18 U.S.C. §1592.
Knowingly destroying, concealing, removing, confiscating, or possessing any actual or
purported passport or other immigration document or government identification
document to prevent or restrict a person’s liberty, without lawful authority, in order to
maintain the person’s labor or services, when the person has been the victim of a severe
form of trafficking (e.g., the use of force, fraud, or coercion for sex trafficking and/or
involuntary servitude, peonage, debt bondage, or slavery). The penalty for conviction is
up to 5 years in prison.
AA. International Marriage Brokers—18 U.S.C. §1375a(d)(5)(B). Where international
marriage broker discloses information about persons under 18, fails to collect information
regarding U.S. client who may have predatory background or violent criminal history,
fails to disclose U.S. client’s background to prospective international client, and/or
discloses information about international client to a third party, s/he is subject to criminal
penalties up to 5 years in prison.
BB. RICO Predicate Offenses—AEDPA §433 and IIRIRA §202 have made certain
immigration-related crimes predicate RICO offenses, even if they were not committed for
financial gain. 18 U.S.C. §§1028, 1542, 1543, 1544 and 1546. However, in order for
immigration-related offenses (INA §§274, 277, and 278; 8 U.S.C. §§1324, 1327 and
1328) to be RICO predicated offenses, the acts must have been committed for gain. See
Commercial Cleaning Services, L.L.C. v. Colin Service Systems, Inc., 271 F.3d 374 (2d
Cir. 2001) [cleaning service’s RICO action against competitor in civil case for hiring
undocumented persons and therefore violating §1324 stated cause of action].
CC. Forced labor, Peonage, and Document Servitude—18 U.S.C. §1589. U.S. v.
Sabhnani, 539 F.Supp.2d 617, 629-30 (E.D.N.Y. 2008 [includes aiding and abetting].
DD. Other Criminal-Related Issues
1. Agreements with U.S. Attorney as Part of Plea—A developing body of law provides
that a U.S. Attorney in a plea bargain may bind the U.S. government, including the
DHS, in regard to deportation of a person entering a plea. Thomas v. INS, 35 F.3d
1332 (9th Cir. 1994) [in plea agreement U.S. Attorney’s agreement that “the
Government will not oppose any motion by your counsel for ... relief from
deportation to ... U.S. Immigration Service” binding on INS]; Margalli-Olvera v. INS,
43 F.3d 345 (8th Cir. 1994) [following Thomas enforced plea agreement]; Ramallo v.
Reno, 931 F.Supp. 884 (D.D.C. 1996), vacated on jurisdictional grounds, 114 F.3d
1210 (D.C. Cir. 1997). But see Morgan v. Gonzales, 495 F.3d 1084, 1091 (9th Cir.
2007) [defendant did not allege that an explicit promise was made to him by the
government]; San Pedro v. U.S., 79 F.3d 1065 (11th Cir. 1996). The AG has sought
to resolve the split in the circuits by promulgating a regulation that says INS shall not
be bound by “plea agreements, cooperation agreements, or other agreements with or
for the benefit of alien defendants, witnesses or informants, or other aliens
cooperating with the United States Government, except by the authorization of the
Commissioner of the Service or the Commissioner’s delegate.” 28 C.F.R. §0.197. The
regulation, however, does not reach the unresolved constitutional argument of the
enforceability of a plea or the court’s authority to enforce a settlement.

43
2. Deportation and Fugitive Status—Deported alien charged with crime who does not
ask U.S. consulate for permission to re-enter U.S. is considered fugitive. U.S. v.
Forty-Five Thousand Nine Hundred and Forty Dollars ($45,940), 739 F.2d 792 (2d
Cir. 1984). Persons in fugitive status generally are not given the right to pursue an
appeal at the BIA or federal court. Wittgenstein v. INS, 124 F.3d 1244 (10th Cir.
1997); Bar-Levy v. INS, 990 F.2d 33 (2d Cir. 1993). But see Degen v. U.S., 517 U.S.
820 (1996) [“Fugitive disentitlement doctrine” does not apply to forfeiture].
3. Departure of Witnesses
3.a. Under U.S. v. Valenzuela-Bernal, 458 U.S. 858 (1982), the moving party must
show that the eyewitness evidence that was lost by deportation of a witness
“would be both material and favorable to the defense” (458 U.S. at 873), and must
“affect the judgment of the trier of fact” (458 U.S. at 874). The government’s
facilitation of voluntary departure is equivalent to the deportation of the witness.
U.S. v. Morales-Quinones, 812 F.2d 604 (10th Cir. 1987). Some courts have held
that the moving party must show bad faith and prejudice from the government’s
misconduct. U.S. v. Gastelum-Almeida, 298 F.3d 1167, 1174 (9th Cir. 2002)
[affirmed transporting and harboring case where the defendant could not show
prejudice or government bad faith in removing witnesses]; U.S. v. Chaparro-
Alcantara, 226 F.3d 616, 622–25 (7th Cir. 2000) [bad faith required particularly
in light of Arizona v. Youngblood, 488 U.S. 51, 57–58 (1988) and language in
Valenzuela-Bernal]; U.S. v. Ramirez-Jimenez, 967 F.2d 1321, 1325 (9th Cir.
1992). But see U.S. v. Hernandez, 347 F.Supp.2d 375, 380–81 (S.D. Tex. 2004)
[where standard was unclear in Fifth Circuit and defendant demonstrated that
government did not act in good faith, indictment for assaulting border patrol agent
was dismissed, where material witness was removed without notifying
defendant]. A party may also waive the right to protest the deportation of material
witnesses. U.S. v. Ramirez-Lopez, 315 F.3d 1143, 1149–53 (9th Cir. 2003) [right
was waived and defendant could not show prejudice to him or bad faith by the
government].
3.b. The taking of material witnesses depositions in lieu of their live testimony at trial
was held to violate the Sixth Amendment confrontation clause. U.S. v. Guadian-
Salazar, 824 F.2d 344 (5th Cir. 1987). But see U.S. v. Rivera, 859 F.2d 1204 (4th
Cir. 1988) [no Sixth Amendment violation where defense counsel had opportunity
to argue against deposition testimony and then participated in depositions that
were used at trial].
3.c. In alien smuggling cases under INA §274(d), 8 U.S.C. §1324(d), a videotape
deposition of a witness is admissible even if the witness was deported or expelled,
if the witness “was available for cross-examination” and the deposition otherwise
complies with the Federal Rules of Evidence.
3.d. The government cannot routinely detain undocumented aliens who are material
witnesses unless it can prove the necessity for such detention. Either party can
take depositions as an alternative. Aguilar-Ayala v. Ruiz, 973 F.2d 411, 421;
18 U.S.C. §3144 (1980). A material witness has the right to appointed counsel.
18 U.S.C. §3006A (1986).

44
4. Juvenile Aliens—Federal Juvenile Delinquency Act’s requirements of parental
notification and prompt arraignment when juvenile charged with federal crime are
applicable to alien who is a juvenile when charged with smuggling. U.S. v. Doe, 862
F.2d 776 (9th Cir. 1988).
5. Criminal Forfeitures—18 U.S.C. §982. Criminal forfeiture includes most statutes
related to passport and visa fraud. These include 18 U.S.C. §§1028, 1425–27, 1541–
44, 1546, and 8 U.S.C. §1324(a)(1) and (2). For example, where there is a conviction
for visa fraud under §1546, then 18 U.S.C. §982(a)(6)(A) provides for forfeiture of:
(1) any proceeds of visa fraud; (2) any property derived from or traceable to the
proceeds of visa fraud, (3) any property used to facilitate the crime and (4) any
conveyance used in the commission of the offense. The criminal forfeiture
proceedings are governed by Section 413 of the Comprehensive Drug Abuse
Prevention and Control Act of 1970 (21 U.S.C. §853) except sections (a) and (d). Any
criminal forfeitures under 18 U.S.C. §982 are therefore governed by the procedures
set forth in 21 U.S.C. §853. Included within these procedures is the right of the
government to seek preindictment issuance of an ex-parte TRO to seize property upon
a showing of probable cause. Restraint of Bowman Gaskins Financial Group, 345
F.Supp.2d 613 (E.D. Va. 2004) [preindictment seizure of money in lawyer’s account
and other accounts upheld]. It also includes post-conviction seizure of property, even
if it was not derived from the proceeds of the fraud, where it meets the “but-for” test.
U.S. v. Ivanchukov, 405 F.Supp.2d 708 (E.D. Va. 2005) [court ordered the post-
conviction forfeiture of $100,000 where one co-conspirator provided another a
$100,000 blank check, which was not determined to be proceeds of their illegal
immigration scheme but would have not been given “but for” their joint involvement
in the conspiracy that required hiring a lawyer].
6. Reporting Criminal Conduct—If an employee or member of the public suspects
criminal conduct by a USCIS, ICE, or CBP employee, s/he may report it to the DHS
Office of Inspector General by calling 1-800-323-8603 or e-mailing
dhsoighotline@dhs.gov.
7. Sentencing—The Sentencing Reform Act of 1984, as amended, 18 U.S.C. §3551 et seq.,
28 U.S.C. §§991–98, made far-reaching changes in federal sentencing by restraining
the broad discretion that judges traditionally had and replaced it with guidelines based
on aggravating and mitigating factors. Although the Court did allow for departures of
sentences in certain circumstances, see Koon v. U.S., 518 U.S. 81 (1996) [recognizing
that discretion remained even under mandatory guidelines where factors were not
adequately taken into account under the Guidelines or where the situation was
atypical], generally the Guidelines were treated as mandatory. However, the Supreme
Court in U.S. v. Booker, 543 U.S. 220 (2005) found that its holdings in Blakely v.
Washington, 542 U.S. 296 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 477
(2000), apply to the U.S. Sentencing Guidelines and that the Sixth Amendment is
violated by the imposition of an enhanced sentence under the Guidelines where it is
based upon a sentencing judge’s determination of a fact (other than a prior
conviction) that was not found by a jury or admitted by the defendant. The Court then
determined that, as a remedial matter, the Guidelines could no longer be mandatory
but instead advisory. The courts can now “consult” the Guidelines, “take them into

45
 account when sentencing,” and utilize a “reasonableness” standard. Booker, 125 S.Ct.
at 765–67. In determining a sentence, the courts will be guided by the statutory
factors set out in 18 U.S.C. §3553(a) together with the now-advisory Guidelines. The
statutory factors under 18 U.S.C. §3553(a) state that the court, in determining a
sentence, shall consider: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed: (a)
to reflect the seriousness of the offense, to promote respect for the law, and to provide
just punishment for the offense; (b) to afford adequate deterrence; (c) to protect the
public; and (d) to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available; (4) the kinds of sentences and the sentencing
range established under the Guidelines; (5) any pertinent policy statement issued by
the Sentencing Commission; (6) the need to avoid unwarranted sentence disparities;
and (7) the need to provide restitution to the victims. To determine whether a
sentence is reasonable the courts will look to the record to see if the sentencing judge
gave “meaningful consideration” to the factors in §3553(a) and whether the factors
were “reasonably applied to the circumstances of the case.” U.S. v. Vargas, 477 F.3d
94, 100–01 (3d Cir. 2007) [upheld 41 month sentence for illegal reentry]. See also
U.S. v. Sanchez-Ramirez, 497 F.3d 531 (5th Cir. 2007) [where judge imposed 80-month
sentence for conspiring and aiding and abetting the transportation of undocumented
persons, which was above Guideline range, the circuit court found it reasonable given
the judge’s finding of heinous conduct toward smuggled aliens]; U.S. v. Roche-
Martinez, 467 F.3d 591, 595 (7th Cir. 2007) [rejects defendant’s claim that he should
have received downward departure for his cultural assimilation]; U.S. v. Maciel-
Vasquez, 458 F.3d 994, 995 (9th Cir. 2006) [upheld 36 month sentence for reentry post-
Booker despite defendant’s claim that court relied on guidelines and failed to state why
it chose a particular sentence]; U.S. v. Ortiz-Delgado, 451 F.3d 752, 758 (11th Cir.
2006) [upholding on post-Booker reasonableness grounds a 60 month sentence for re-
entry after commission of crime of violence where the range was 57 to 71 months and
holding that Booker does not require the sentencing judge to state on the record that he
considered each of the §3553(a) factors]; U.S. v. Perez-Nunez, 368 F.Supp.2d 1265
(D.N.M. 2005) [court reduced sentence for re-entry after the commission of the
aggravated felony of Third Degree Assault under Colorado law from 57 months to 24
months after applying 18 U.S.C. §3553(a) to the determination under the guidelines];
U.S. v. Huerta-Rodriguez, 335 F.Supp.2d 1019, 1025 (D. Neb. 2005) [rejected the
government’s contention that a criminal sentence should fall within the Guidelines
range absent highly unusual circumstances as an effort to reinstitute mandatory
guidelines].
7.a. Sentencing Cases in the Supreme Court Defining Post-Booker Sentencing—
Subsequent to Booker the Supreme Court addressed the relationship between both
within- and without-Guideline sentences and the presumptive reasonableness of a
sentence under the §3553(a) factors.
(1) Within Guideline Range Post-Booker Under Rita—In Rita v. United States, 127
S.Ct 2456 (2007) the Court affirmed an appellate presumption of substantive
reasonableness for sentences that are properly calculated to be within the
Guidelines. The Court determined that an appellate presumption of

46
 reasonableness for within-Guideline sentencing is permissible, although not
required. Rita, 127 S.Ct. at 2462. The Court went on to discuss how extensive
a statement of reasons should be provided by the district court in rendering a
sentencing decision. The Court noted that a within-Guidelines sentence will
not necessarily require a lengthy explanation but that there may be
circumstances where the parties raise nonfrivolous reasons for imposing a
different sentence and in those cases the judge needs to explain why he
rejected the arguments. Finally, where the judge imposes a sentence outside of
the Guidelines range he will have to explain why he did so. Rita, 127 S.Ct. at
2468.; U.S. v. Angel-Guzman, 506 F.3d 1007 (10th Cir. 2007) [explaining and
adopting Rita but also finding that a circuit court has no jurisdiction to review
a district court’s discretionary decision to deny a motion for a downward
departure]; U.S. v. Perez-Perez, 512 F.3d 514 (9th Cir. 2008) [post-Rita a 62
month and two-week sentence within the Guidelines was reasonable and the
district court’s sufficiently considered defendant’s arguments].
(2) Below Guideline Range Post-Booker Under Gall and Kimbrough.—In Gall v.
United States, 128 S.Ct. 586 (2007) the Supreme Court addressed whether a
judge granting a sentence below the Guidelines had provide extraordinary
reasons for doing so. In Gall the Guideline range suggested 30 to 37 month
prison sentence and the judge granted 36 months probation instead. The Court
determined that whether a sentence is within or outside the Guidelines range,
the standard remains abuse of discretion and therefore no “extraordinary”
finding need be made, nor mathematical calculation be computed when
deviating from the Guidelines. 128 S.Ct. at 594–96. The Court detailed a
procedure for calculating an appropriate sentence. First, a sentencing court
should use the Guidelines as “the starting point and the initial benchmark” 128
S.Ct. at 596. The court should then give both parties and opportunity to argue
for whatever sentence they deem appropriate. The judge should then consider
all of the §3553(a) factors, but it doing so “should not presume that the
Guidelines range is reasonable.” 128 S.Ct. at 596–97. She must them make a
individualized assessment based upon the facts and if she decides an outside-
Guidelines sentence is appropriate, she must consider “the extent of the
deviation and ensure that the justification is sufficiently compelling to support
the degree of variance.” 128 S.Ct at 597. Finally, the Court found it
“uncontroversial” that a major departure be supported by a more significant
justification than a minor one” and that the judge must adequately explain the
chosen sentence for purposes of appellate review and to promote the
perception of a fair sentencing system. In reviewing a sentence the appellate
court will review it for abuse of discretion which ensuring that no significant
procedural errors have occurred such as failing to calculate the Guidelines
properly, treating them as mandatory, failing to consider all of the §3553(a)
factors, selecting a sentence based upon clearly erroneous facts, or failing to
explain the basis for the sentence. If it is procedurally sound the appellate
court should review if for substantive reasonableness taking into account the
totality of the circumstances. If it is within the Guidelines range the appellate
court “may, but is not required to, apply a presumption of reasonableness” and

47
 but if it is outside the Guidelines range, the court “may not apply a
presumption of unreasonableness.” 128 S.Ct. at 597.
(3) In Kimbrough v. United States, 128 S.Ct.558 (2007) the Court held that a
sentencing judge could consider the disparity within the Guidelines between
crack and powder cocaine offenses and could determine in a particular case
that the within-Guidelines sentence is “greater than necessary” to sever the
sentencing objectives under §3553(a).
(4) Sentencing following Gall and Kimbrough—U.S. v. Gonzalez-Carballo, 519
F.3d 1232, 1236 (10th Cir. 2008) [24 month sentence for illegal reentry was
below Guideline range and judge acknowledged the range and the PSR
suggestion that the range overstated the seriousness of respondent’s criminal
history].
7.b. Guideline Sentencing Generally—As a result of the Sentencing Commission’s desire
to “achieve more proportionate punishment by providing tiered sentencing
enhancement based on the period of imprisonment the defendant actually served for
the prior aggravated felony” 66 FR 7962, 8008–09 (Jan. 26, 2001), the Commission
substantially altered §2L1.2 on Nov. 1, 2001, to distinguish among various offenses
for purposes of sentencing enhancement. Under these guidelines a person is only
subject to a 16-level upward adjustment if he was previously deported or unlawfully
remained in the U.S. after: (A) a conviction for a felony that is (i) a drug trafficking
offense for which the sentence imposed exceeded 13 months; (ii) a crime of violence;
(iii) a firearms offense; (iv) a child pornography offense; (v) a national security or
terrorism offense; (vi) a human trafficking offense; or (vii) an alien smuggling
offense committed for profit.
(1) A “sentence imposed” refers only to the portion “that was not probated,
suspended, deferred, or stayed.” Commentary to §2L1.2 note 1(a)(iv);
(2) A “crime of violence” for purposes of the 16 level enhancement is defined as
“an offense under federal, state, or local law that has as an element the use,
attempted use, or threatened use of physical force against the person of
another; and includes murder, manslaughter, kidnapping, aggravated assault,
forcible sex offenses (including sexual abuse of a minor), robbery, arson,
extortion, extortionate extension of credit, and burglary of a dwelling.”
Commentary to §2L1.2 note 1(B)(ii); U.S. v. Ortiz-Delgado, 451 F.3d 752,
753–57 (11th Cir. 2006) [lewd acts upon a child in violation of Cal. Penal
Code §288 is a crime of violence warranting post-Booker consideration of a
16 level upward adjustment because sexual abuse of a minor is defined as a
crime of violence under §2L1.2(b)(1)(A)(ii)];
(3) Transporting aliens within the U.S. constitutes an alien smuggling offense.
U.S. v. Solis-Campozano, 312 F.3d 164 (5th Cir. 2002).
(4) A “drug trafficking offense” means an offense under federal, state, or local
law that prohibits the manufacture, import, export, distribution, or dispensing
of a controlled substance (or a counterfeit substance) or the possession of a
controlled substance (or a counterfeit substance) with intent to manufacture,
import, export, distribute, or dispense.” Commentary to §2L1.2 note 1(B)(iii).

48
 If the sentence was 13 months or more it carries the additional penalty of a 16
level upward adjustment under USSG §2l1.2(b)(1)(A)(i). U.S. v. Chavez-Diaz,
444 F.3d 1223, 1225–27 (10th Cir. 2006) [where defendant post-Booker was
previously sentenced in a Wyoming court to 4 to 6 years for drug trafficking
crime, the fact that he was deported and never served the full sentence does
not take him out of USSG §2L1.2(b)(1)(A)(i) which requires a 16 level
upward adjustment where the sentence was 13 months or more]; Under the
Sentencing Guidelines simple possession of a controlled substance cannot
constitute a controlled substance offense under the Guidelines Manual
§4B1.1(a). Salinas v. U.S., 547 U.S. 188 (2006).
(5) A person is subject to a 12-level upward adjustment if he is convicted for a
felony drug trafficking offense for which the sentence imposed was 13 months
or less. §2L1.2(b)(1)(B).
(6) A person is subject to an 8-level upward adjustment if he is convicted for an
aggravated felony. §2L1.2(b)(1)(C);
(7) An “aggravated felony” has the meaning given that term in INA §101(a)(43),
without regard to the date of conviction of the aggravated felony.
Commentary to §2L1.2 note 2
(8) A person is subject to a 4-level upward adjustment if he is convicted of a
felony other than an aggravated felony. §2L1.2(b)(1)(D). A person is also
subject to a 4-level upward adjustment if he is convicted of 3 or more
misdemeanors that are COVs or drug trafficking offenses. §2L1.2(b)(1)(E).
(9) A misdemeanor means any federal, state, or local offense punishable by a
term of imprisonment of one year or less. Commentary to §2L1.2 note 3(A);
U.S. v. Cordova-Arevalo, 456 F.3d 1229 (10th Cir. 2006) [although Colorado
third degree assault conviction is a misdemeanor under state law, it is a felony
under the federal definition pursuant to 18 U.S.C. §3559(a) and therefore
enhancement of sentence was appropriate].
7.c. Sentencing Guidelines Cases Post-Booker
(1) Sentencing for Transportation of Undocumented Persons—U.S. v. Sanchez-
Ramirez, 497 F.3d 531 (5th Cir. 2007) [where judge imposed 80 month
sentence which was above Guideline range, the court found it reasonable
given the judge’s finding of heinous conduct toward smuggled aliens]; U.S. v.
Hussein Al Nasser, 479 F.3d 1166, 1170–72 (9th Cir. 2007) [sentence
reasonable even where there was no direct evidence that defendant received
funds because under 2003 guidelines it did not matter]; U.S. v. Martinez-
Vives, 475 F.3d 48, 54–56 (1st Cir. 2007) [giving greater sentence for person
who goes to trial is permissible].
(2) Sentencing for Trafficking in False Documents—Sentencing Cases for
Violations of 18 U.S.C. §1546(a) [using or attempting to use forged,
counterfeit or altered immigration documents]—U.S. v. Zapete-Garcia, 447
F.3d 57 (1st Cir. 2006) [reversed sentence where judge used previous
deportation to substantially enhance sentence when Guidelines already
included a two level upward adjustment for previous deportation and judge

49
 did not explain why that was insufficient]; U.S. v. Rivera, 516 F.3d 500 (6th
Cir. 2008) [defendant entered guilty plea under 18 U.S.C. §1028 for causing
unauthorized production of Tenn. driver’s licenses and successfully
challenged the use of §2L2.1 because he did not traffic in immigration
documents]
(3) Sentencing for Illegal Re-Entry Cases—The court looks to the reasonableness
of the sentence. U.S. v. Juarez-Duarte, 513 F.3d 204 (5th Cir. 2007) [upheld
87 month enhanced sentence where person illegally reentered after conviction
for cocaine trafficking and received sentence enhancement for obstruction of
justice by requesting a translator at his sentencing when he did not need one];
U.S. v. Perez-Perez, 512 F.3d 514 (9th Cir. 2008) [post-Rita a 62 month and
two-week sentence within the Guidelines was reasonable and the district
court’s sufficiently considered defendant’s arguments]; U.S. v. Antuna-Moran,
488 F.3d 1048 (5th Cir. 2007) [circuit court upheld a 46 month sentence for
illegal reentry where district court improperly determined that prior conviction
was a crime of violence but in the alternative provided the 46 month sentence
if his Guideline determination was incorrect]; U.S. v. Gama-Gonzales, 469
F.3d 1109 (7th Cir. 2006) [37 month sentence was modest in light of
defendant’s history of criminal activity and his immediate illegal return to
U.S. for a third time]; U.S. v. Valtierra-Rojas, 468 F.3d 1235 (10th Cir. 2006)
[sentence above Guideline range is not presumptively unreasonable although
the greater the divergence the more compelling the reasons should be; a 60
month sentence was reasonable even though it was 30 months above
Guideline range]; U.S. v. Turbides-Leonardo, 468 F.3d 34 (1st Cir. 2006) [48
month sentence was reasonable and was within Guidelines]; U.S. v. Cadenas,
445 F.3d 1091 (8th Cir. 2006) [court upheld sentence over claim that judge
did not sufficiently consider political conditions in Colombia causing duress];
U.S. v. Montes-Pineda, 445 F.3d 375, 377–78 (4th Cir. 2006) [court upheld 46
month sentence for aggravated felon who reentered notwithstanding
defendant’s claims that he reentered to be with his family, his aggravated
felony conviction occurred 14 years ago and he has never served a lengthy jail
sentence]; U.S. v. Trejo-Martinez, 481 F.3d 409 (6th Cir. 2007) [forty-six
month sentence and 2 years supervised release upheld on reasonableness
grounds]; U.S. v. Ortiz-Delgado, 451 F.3d 752, 758 (11th Cir. 2006)
[upholding on post-Booker reasonableness grounds a 60 month sentence for
re-entry after commission of crime of violence where the range was 57 to 71
months and holding that Booker does not require the sentencing judge to state
on the record that he considered each of the 18 U.S.C. §3553(a) factors]; U.S.
v. Chavez-Diaz, 444 F.3d 1223, 1227–30 (10th Cir. 2006) [30 month sentence
for illegal reentry was within guideline range and district court was correct in
not granting downward departure based on bad immigration advice or
ignorance of the law where defendant entered the country not at a port of
entry];U.S. v. Martinez, 434 F.3d 1318 (11th Cir. 2006) [an 87-month
sentence for re-entry found not unreasonable, where defendant has a violent
criminal history, the maximum penalty is 20 years, and the sentence was
within the guideline range]. The court need not state why it chose a particular

50
 sentence if it considers the appropriate factors under §3553(a). U.S. v. Maciel-
Vasquez, 458 F.3d 994, 995 (9th Cir. 2006) [upheld 36 month sentence for
reentry post-Booker despite defendant’s claim that court relied on guidelines
and failed to state why it chose a particular sentence]. A sentence within the
guideline range may be supported by simply a “general statement” of the
reasons for the sentence, but a sentence outside the guideline range should
provide specific reasons that must be stated with specificity in a written order.
U.S. v. Ruiz-Terrazas, 477 F.3d 1196, 1199–1203 (10th Cir. 2007). The
decision in Booker does not prohibit a judge from sentencing a defendant
beyond the guideline range. U.S. v. Hernandez-Villanueva, 473 F.3d 118 (4th
Cir. 2007) [where defendant was sentenced to 18 months because he re-
entered to continue his association with a violent gang—MS-13—the court
could exceed the guideline range of 0-6months without violating Booker].
However, where the court seeks to enhance a sentence, it must properly apply
the law. U.S. v. Scott, 447 F.3d 1365 (11th Cir. 2006) [court improperly
applied enhancement because defendant was not “found in” the U.S. after he
was under a sentence of imprisonment].
(4) Sentencing for Found-In the United States—U.S. v. Gordon, 513 F.3d 659,
666–67 (7th Cir. 2008) [a 96 month sentence, although 25 month above the
high end of the advisory guidelines, was not unreasonable or an abuse of
discretion under Gall v. United States, 552 U.S.___, 128 S.Ct. 586 (2007)
where defendant used former “green card” to reenter, where judge believed he
would again take advantage of the most vulnerable people in our society by
preying on the elderly, and where the judge believed he would return again
because he had nothing in Belize]. The sentencing guidelines that are
applicable in “found in” cases are those at the time the person is found in the
U.S. not at time of voluntary re-entry. U.S. v. Estrada-Quijas, 183 F.3d 758
(8th Cir. 1999) [the “found in” violation is a continuing one and a defendant is
therefore subject to the definition of “aggravated felony” at the time he is
discovered]; U.S. v. Rodriguez, 26 F.3d 4 (1st Cir. 1994) [person sentenced
under “found in” provision that changed after person’s re-entry but before he
was found in U.S. does not violate Ex Post Facto Clause]. U.S. v. Whitaker,
999 F.2d 38 (2d Cir. 1993); U.S. v. Rivera, 942 F.Supp. 247 (E.D. Vt. 1996).
But see U.S. v. Hernandez-Gonzalez, 495 F.3d 55 (3d Cir. 2007) [for purposes
of §4A1.2(e)(2) of the Guidelines, counting the past ten years of prior
sentences begins from the date defendant re-entered the U.S. and not the date
he was “found in” the U.S.].
7.d. Definition of a Sentence—Under prior law, a deferred adjudication is considered
a conviction pursuant to sentencing guideline §4A1.2(f) even if it would not be a
conviction for immigration purposes. U.S. v. Valdez-Valdez, 143 F.3d 196 (5th
Cir. 1998) [Texas deferred adjudication statute deemed to be a conviction for
sentence enhancement purposes]; U.S. v. Campbell, 167 F.3d 94 (2d Cir. 1999)
[same]. Indeterminate sentences are deemed to be for maximum sentence and thus
meet the 5-year requirement for an aggravated felony where 5 years is required.
Matter of Jean, 23 I&N Dec. 373, 386 n.14 (AG 2002) [indeterminate sentence
deemed to be for maximum period]; U.S. v. Galicia-Delgado, 130 F.3d 518 (2d

51
 Cir. 1997) [30- to 90-month sentence for attempted robbery is aggravated felony
even where defendant served less than five years]; U.S. v. Quinonez-Terrazas, 86
F.3d 382 (5th Cir. 1996) [indeterminate sentence between 4 to 6 years is
aggravated felony where definition required 5-year sentencing]; U.S. v. Deleon-
Rodriguez, 70 F.3d 764 (3d Cir. 1995) [same]. A suspended sentence is still
considered a term of imprisonment in determining whether crime is an aggravated
felony. U.S. v. Tejeda-Perez, 199 F.3d 981 (8th Cir. 1999) [finding that INA
§101(a)(48)(B) regarding treating suspension of sentence as the same as the term
of imprisonment is the controlling provision rather than USSG §4A1.2(b)]. But
probation is not a sentence to imprisonment under the requirements of §2L1.2.
U.S. v. Lopez-Vasquez, 227 F.3d 476, 481 n.8 (5th Cir. 2000). A sentence that is
imposed and then probated, however, may be considered a sentence under
§101(a)(48)(B). U.S. v. Ayala-Gomez, 255 F.3d 1314 (11th Cir. 2001) [sentence
that was probated is considered suspended for purposes of statute and therefore
full sentence must be considered].
7.e. Definition of Aggravated Felony. An aggravated felony should not be defined
rigidly—U.S. v. Ballesteros-Ruiz, 319 F.3d 1101 (9th Cir. 2003) [second
conviction for possession of marijuana is not a felony triggering aggravated
felony enhancement]; U.S. v. Arellano-Torres, 303 F.3d 1173, 1178 (9th Cir.
2002) [same]; U.S. v. Hinds, 803 F.Supp. 675 (W.D.N.Y. 1992) [where 2 felony
marijuana convictions would have been misdemeanors in another state, 16-level
increase unwarranted]. If statute did not define act as aggravated felony at the
time it was committed, it is a violation of the constitutional prohibition against ex
post facto laws to apply the 16-level upward adjustment. U.S. v. Avila-Ramirez,
170 F.3d 277 (2d Cir. 1999) [no 16-level enhancement for aggravated felony
where conviction for indecent assault and the crime of re-entry were completed
prior to the IIRIRA amendments making abuse of a minor an aggravated felony].
The USSG definition of aggravated felony incorporates the INA definition for
the 8-level enhancement under USSG §2L1.2(b)(1)(C), but not for: (1) the 16-
level enhancement under USSG §2L1.2(b)(1)(A) for certain designated crimes;
(2) the 12-level enhancement under USSG §2L1.2(b)(1)(B) for drug trafficking
offense for which the sentence imposed was 13 months or less, or (3) the felony
enhancement under USSG §2L1.2(b)(1)(D). USSG §2L1.2 note 2. There is a
question in the circuits as to whether an aggravated felony, for purposes of the
sentencing guidelines and for the INA, are identical or distinct. Cazarez-Gutierrez
v. Ashcroft, 382 F.3d 905, 912–14 (9th Cir. 2004) [distinguishing analysis for
immigration purposes concerning the treatment of a state conviction as an
aggravated felony from sentencing guideline cases where the “states possess
primary authority for defining and enforcing the criminal law”]; U.S. v. Pornes-
Garcia, 171 F.3d 142 (2d Cir. 1999) [finding definition of aggravated felony
under USSG §2L1.2(b)(1)(A) distinct from INS definition; Aguirre
distinguished]; U.S. v. Lazo-Ortiz, 136 F.3d 1282 (11th Cir. 1998) [neither the
definition of aggravated felon at INA §101(a)(43), nor the definition under INA
§276, 8 U.S.C. §1326, apply to the guidelines thereby permitting retroactive
application of definition of crime of violence]; U.S. v. Reyna-Espinosa, 117 F.3d
826 (5th Cir. 1997) [possession of a firearm under §922(g)(5) while defined as an

52
aggravated felony for the INA, is not an aggravated felony under USSG
§2L1.2(b) (note)]; U.S. v. Rios-Favela, No. 96-50128 (9th Cir. June 25, 1997);
U.S. v. Munoz-Cerna, 47 F.3d 207, 212 (7th Cir. 1995); but see Cedano-Viera v.
Ashcroft, 324 F.3d 1062, 1067 (9th Cir. 2003) [reading Matter of Yanez-Garcia to
require IJs to follow sentencing guideline as well as immigration cases
interpreting aggravated felonies]; U.S. v. Fuentes-Barahona, 111 F.3d 651 (9th
Cir. 1997) [suggesting date limitation under agg. felony statute applied to
sentencing guidelines]; U.S. v. Maul-Valverde, 10 F.3d 544 (8th Cir. 1993) [citing
to other cases addressing aggravated felony issues]. One court has also
determined that even if a conviction would not be an aggravated felony for
purposes of sentencing under §1326(b)(2), it could still be an aggravated felony
for purposes of sentencing enhancement under USSG §2L1.2(b)(2). U.S. v.
Westcott, 159 F.3d 107, 114–17 (2d Cir. 1998). The BIA previously determined
that “crimes of violence” are defined differently for Sentencing Guidelines under
USSG §4B1.2(1)(ii) than under the aggravated felony removal provision because
the former finds a crime of violence if there is a risk of physical injury whereas
the aggravated felony statute requires a risk of physical force. Matter of Sweetser,
22 I&N Dec. 709 (BIA 1999). In drug cases, however, the BIA agreed with a
number of circuit courts that refused to make a distinction between sentencing
enhancement cases and immigration cases when interpreting whether state
felonies should be treated as aggravated felonies. Matter of Yanez-Garcia, 23
I&N Dec. 390, 396 (BIA 2002) [reversed Matter of K-V-D-, 22 I&N Dec. 1163
(BIA 1999) and found that state felony drug convictions will be considered
aggravated felonies under federal law, even if the crime is a misdemeanor under
federal law]. See also U.S. v. Hernandez-Avalos, 251 F.3d 505, 508–10 (5th Cir.
2001) [rejected both Matter of L-G- and Matter of K-V-D-, found that there was
no basis to distinguish between sentencing guideline and immigration cases, and
determined that possession of heroin is an aggravated felony because it was
punishable under §844(a) and it is a felony under state law]. But the Supreme
Court in Lopez v. Gonzales, 549 U.S. ___, 127 S.Ct. 625 (2006) rejected Matter of
Yanez-Garcia to the extent it held that a state felony can be treated as an
aggravated felony under the Controlled Substances Act if it is not a felony under
federal law.
The Sentencing Commission sought to clarify some of these issues by amending
the definitions under §2L1.2 in 2001 and again in 2003. The 2003 Sentencing
Guideline for illegal re-entry offenses imposes a 16-level increase for certain
crimes of violence without regard to whether they would be aggravated felonies
under the immigration law definition of crime of violence. Compare USSG
§2L1.2 comment 1(B)(iii) with USSG §2L1.2 comment 3. For example, burglary
is a crime of violence regardless of the sentence imposed under the Guidelines,
but requires a one-year sentence to fall under the aggravated felony definition.
See, e.g., U.S. v. Pimentel-Flores, 339 F.3d 959 (9th Cir. 2003) [approving the
lawfulness of a 16-level enhancement sought pursuant to INA §276(b)(1),
8 U.S.C. §1226(b)(1)]. The 2003 amendments also redefined crime of violence to
include sexual abuse of a minor, other sexual offenses, and burglary of a dwelling.
It also added human trafficking offenses as defined in 18 U.S.C. §§1581–91, child

53
pornography offenses under 18 U.S.C. §§2251–52A, and offenses under state and
local law consisting of conduct that would have been a federal offense under
those statutes for purposes of establishing a 16-level upward adjustment.
In certain circumstances the sentencing guidelines may conflict with the
aggravated felony statute. For example, it is not clear that an enhancement sought
under INA §276(b)(2), 8 U.S.C. §1226(b)(2), would be lawful because such
enhancements are available only if the defendant has a prior aggravated felony
conviction. The Supreme Court has given the Sentencing Commission broad
authority, but the Sentencing Commission cannot contravene an Act of Congress.
See Stinson v. U.S., 508 U.S. 36 (1993) [holding that USSG Manual is binding on
federal courts unless it is contrary to the statute].
There is also an issue as to whether INA §101(a)(48)(B) or USSG §4A1.2(b)
applies in defining “term of imprisonment” for purposes of the enhancement
provision. U.S. v. Tejeda-Perez, 199 F.3d 981, 982 (8th Cir. 1999) [INA
§101(a)(48)(B) defines “term of imprisonment” for purposes of an enhancement
under the sentencing guidelines as an aggravated felon]; U.S. v. Maldonado-
Ramirez, 216 F.3d 940 (11th Cir. 2000) [same]. The term of imprisonment under
the 2003 amendments now includes any terms of imprisonment given upon
revocation of probation, parole, or supervised release.
The Supreme Court resolved the issue of whether a felony conviction under
state law but not a felony under federal law can be considered an aggravated
felony. A person must be convicted of a crime that is a felony under federal law.
Lopez v. Gonzales, 549 U.S. ___, 127 S.Ct. 625 (2006). In Lopez the Court
rejected the approach articulated in Matter of Yanez-Garcia, 23 I&N Dec. 390
(BIA 2002) that a state felony conviction is sufficient to be an aggravated felony
under 18 U.S.C. §924(c)(2) even if it is not a felony under federal law. Lopez
determined that a South Dakota conviction for aiding and abetting another
person’s possession of cocaine, while a felony under state law, could not be an
aggravated felony because under federal law the conviction is treated as a
misdemeanor. The Court held that “a state offense constitutes a ‘felony
punishable under the Controlled Substances Act’ only if it proscribes conduct
punishable as a felony under that federal law.” 549 U.S. ___, ____, 127 S.Ct. 625,
633 (2006
Conversely, there is an issue as to whether a state conviction that is a
misdemeanor under state law can be an aggravated felony for sentence
enhancement. U.S. v. Corona-Sanchez, 291 F.3d 1201, 1208–09 (9th Cir. 2002)
(en banc). [following language in Apprendi that “recidivism does not relate to the
commission of the offense,” the court would not consider petty theft as an
aggravated felony where the maximum sentence was 6 months, notwithstanding
the 2-year sentence received by defendant due to an enhancement statute]; U.S. v.
Gomez-Ortiz, 62 F.Supp.2d 508 (D.R.I. 1999) [Mass. statute that was
misdemeanor for first offense possession with intent to distribute was not
aggravated felony under sentencing guidelines]. But see U.S. v. Marin-Navarette,
244 F.3d 1284 (11th Cir. 2001) [although attempted child molestation in the third
degree is a misdemeanor under Washington State law it is an aggravated felony
for sentencing enhancement]; U.S. v. Christopher, 239 F.3d 1191 (11th Cir.

54
2001), cert. denied, 122 S.Ct. 178 (2001) [theft by shoplifting although a
misdemeanor under state law was agg. felony where sentence imposed, although
suspended, was one year]; U.S. v. Pacheco, 225 F.3d 148, 154 (2d Cir. 2000);
Wireko v. Reno, 211 F.3d 833, 835 (4th Cir. 2000); U.S. v. Graham, 169 F.3d 787,
792 (3d Cir.), cert. denied, 528 U.S. 845 (1999).
Sixteen-Level Adjustment Warranted (primarily under former USSG §2L1.2))—
U.S. v. Galinda-Gallegos, 244 F.3d 728, 733 (9th Cir. 2001) [transporting aliens
in the U.S. is an agg. felony even though it was not a conviction for smuggling];
U.S. v. Polanco, 47 F.3d 516 (2d Cir. 1995) [reversed refusal of district judge to
grant 16-level enhancement of sentence as aggravated felon because of practice of
NY defense bar to plead clients to low-level drug offenses and because the gross
unfairness of the guidelines might raise due process concerns]; U.S. v. Mendoza-
Iribe, 198 F.3d 742 (9th Cir. 1999) [upward 16-level adjustment applicable even
if act was not aggravated felony at the time person convicted]; U.S. v. Cazares-
Gonzalez, 152 F.3d 889 (8th Cir. 1998) [same]; U.S. v. Lazo-Ortiz, 136 F.3d 1282
(11th Cir. 1998) [same]; U.S. v. Munoz-Cerna, 47 F.3d 207 (7th Cir. 1995)
[same]; U.S. v. Campbell, 94 F.3d 125 (4th Cir. 1996) [same]; U.S. v. Garcia-
Rico, 46 F.3d 8 (5th Cir.), cert. denied, 115 S.Ct. 2596 (1996) [same]; U.S. v.
Nwene, 20 F.Supp.2d 716, 723–25 (D.N.J. 1998) [same]; Carvajales-Cepeda v.
Meissner, 966 F.Supp. 207 (S.D.N.Y. 1997) [same]; U.S. v. Arzate-Nunez, 18
F.3d 730, 733–35 (9th Cir. 1994) [rejected ex post facto argument where
aggravated felony committed before aggravated felony act passed]; U.S. v.
Cabrera-Sosa, 81 F.3d 998 (10th Cir. 1996) [same]; U.S. v. Crawford, 18 F.3d
1173 (4th Cir. 1994); U.S. v. Lozano, 138 F.3d 915 (11th Cir. 1998) [general ex
post facto challenge to sentence enhancement provision rejected]; U.S. v. Forbes,
16 F.3d 1294 (1st Cir. 1994) [rejected ex post facto claim]; U.S. v. Valdez, 103
F.3d 95 (10th Cir. 1996) [same]; U.S. v. Frios-Trujillo, 9 F.3d 875 (10th Cir.
1993) [allowed enhancement where person committed burglary and pled guilty
only to re-entry after commission of a felony under 8 U.S.C. §1326(b)(1) and not
after commission of aggravated felony]. But see U.S. v. Gomez-Ortiz, 62
F.Supp.2d 508 (D.R.I. 1999) [Mass. statute that was misdemeanor for first offense
possession with intent to distribute was not agg. felony under sentencing
guidelines and 16-level enhancement was unwarranted]; U.S. v. Fuentes-
Barahona, 111 F.3d 651 (9th Cir. 1997) [COV committed prior to Nov. 29, 1990,
cannot be agg. felony for sentence enhancement]; U.S. v. Campos-Martinez, 976
F.2d 589 (9th Cir. 1992) [unless element was proven cannot enhance sentence].
Downward Departure Post-Booker—U.S. v. Trujillo-Terrazas, 405 F.3d 814
(10th Cir. 2005) [where 41 month sentence for an innocuous prior third degree
arson conviction (throwing a match in a car) would have resulted in a sentence
that would be “plain error” under Booker court reversed].
Downward Departure Pre-Booker—The sentencing guidelines to
§2L1.2(b)(1)(A) at note 5 provide for a downward departure of the 16-level
enhancement. Note 5 provides for a downward departure where: (1) the defendant
has previously been convicted of only one felony; (2) such offense was not a
COV or firearms offense; and (3) the term of imprisonment imposed for such
offense did not exceed one year. A downward departure may also be given for

55
delay in indicting a person in an illegal re-entry case. U.S. v. Martinez-Salazar,
318 F.Supp.2d 127 (S.D.N.Y. 2004). Downward departures was also permissible,
pre-Booker, under Koon v. U.S., 518 U.S. 81 (1996) if the court found that there
was a mitigating circumstance of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission in formulating the guidelines. U.S.
v. Jauregui, 314 F.3d 961 (8th Cir. 2003) [waiver of removal hearing by LPR is
sufficient to give a 4-level downward adjustment in a sentencing for sale of
drugs]; U.S. v. Rodriguez-Montelongo, 263 F.3d 429 (5th Cir. 2001) [cultural
assimilation is a valid ground for downward departure in illegal re-entry case];
U.S. v. Sanchez-Rodriguez, 161 F.3d 556 (9th Cir. 1998) (en banc) [in §1326 case
where the predicate offense was a $20 heroin sale, the court held that the district
court may depart in its discretion based on the nature and circumstances of the
underlying aggravated felony]; U.S. v. Sanchez-Valencia, 148 F.3d 1273, 1274
(11th Cir. 1998) [permitting downward departure for cultural assimilation]; U.S.
v. Diaz-Diaz,135 F.3d 572, 581 (8th Cir. 1998) [the court affirmed a downward
departure in a sale of 8.3 grams of marijuana because the seriousness of the
offense was drastically overstated]; U.S. v. Lipman, 133 F.3d 726, 729–31 (9th
Cir. 1998)] [same]. But see U.S. v. Palomino-Rivera, 258 F.3d 656 (7th Cir. 2001)
[rejecting arguments under Note 5 and Koon]; Flores-Diaz v. U.S., 516 F.Supp.2d
818, 828 (S.D. Tex. 2007) [where defendant was a repeat offender he was not
culturally assimilated]. The status of being a deportable alien and therefore
serving a harsher prison sentence because of ineligibility for prison programs such
as a halfway house, is not a basis in the view of some courts for a downward
adjustment, U.S. v. Veloza, 83 F.3d 380 (11th Cir. 1996); U.S. v. Maung, 320 F.3d
1305 (11th Cir. 2003) [sentencing court may not depart downward to take a crime
out of the definition of an aggravated felony to shield defendant from immigration
consequences]; U.S. v. Aleskerova, 300 F.3d 286, 300 (2d Cir. 2002); U.S. v.
Ebolum, 72 F.3d 35 (6th Cir. 1995); U.S. v. Mendoza-Lopez, 7 F.3d 1483, 1486
(10th Cir. 1993), cert. denied, 511 U.S. 1036 (1994); U.S. v. Alvarez-Cardenas,
902 F.2d 734 (9th Cir. 1990); U.S. v. Restrepo, 999 F.2d 640 (2d Cir. 1993)
[suggesting that departure may be permissible if the effect of deportation is
beyond the ordinary]. U.S. v. Santos v. U.S., 940 F.Supp. 275 (D. Hawaii 1996)
[rejected equal protection argument]. But see U.S. v. Smith, 27 F.3d 649 (D.C. Cir.
1994). It is impermissible to give downward adjustment because the reason for
the re-entry was to visit family or because drug conviction was minor. U.S. v.
Abreu-Cabrera, 64 F.3d 67, 74–76 (2d Cir. 1995). Departure from sentencing
guidelines because deportable person would not serve probation is impermissible.
U.S. v. Chavez-Botello, 905 F.2d 279, 281 (9th Cir. 1990). See also U.S. v.
Amaya-Benitez, 69 F.3d 1243 (2d Cir. 1995) [court cannot look at underlying
circumstances of the aggravated felony conviction to grant downward adjustment
and conviction was not so old (9 years) as to raise any issue]; U.S. v. Gonzalez,
112 F.3d 1325 (7th Cir. 1997) [age of aggravated felony convictions irrelevant];
U.S. v. Maul-Valverde, 10 F.3d 544 (8th Cir. 1993) [reversed judge’s departure
from upward 16-level adjustment where person had committed burglary and
sentenced as aggravated felon]. But see U.S. v. Sanchez-Rodriguez, 161 F.3d 556,
559–63 (9th Cir. 1998) [can consider the nature and circumstances of the

56
 underlying aggravated felony in departing downward]; U.S. v. Ortega-Mendoza,
981 F.Supp. 694 (D.D.C. 1997) [downward departure appropriate because
aggravated felony not serious, because conditions of detention would be more
severe as deportable person and coercion and duress influence his return].
Moreover, a decision to deny a downward adjustment may not be reviewable.
U.S. v. Melendez-Torres, 420 F.3d 45, 50–52 (1st Cir. 2005) [denial of downward
adjustment because defendant was culturally assimilated in the U.S. was not
reviewable]. Presentation of false ID and false name to INS officers does not
warrant enhancement of sentence absent a showing that it hindered the
investigation. U.S. v. Solano-Godines, 120 F.3d 957, 963 (9th Cir. 1997).
7.f. Stipulation to Deportation as Basis for Downward Departure—Pre–Booker,
certain circuits prohibited a defendant from obtaining a downward departure of
his or her sentence simply because s/he is willing to stipulate to deportation
absent a proffer of a nonfrivolous defense to deportation. U.S. v. Mignott, 184
F.3d 1288, 1290–91 (11th Cir. 1999) [citing First, Second, Third, and Ninth
Circuit cases supporting the same view]. But see U.S. v. Hernandez-Reyes, 114
F.3d 800, 802 (8th Cir. 1999) [permitting downward departure where the parties
filed a joint motion requesting it irrespective of defense to deportation]. Post-
Booker, departure from the sentencing guidelines was also not permitted. U.S. v.
Hernandez-Montealegre, 445 F.Supp.2d 646, 653–58 (E.D. Va. 2006) [where
defendant had only frivolous defenses to removal departure was not appropriate].

III. PROCEDURAL ISSUES

A. Suppression of Illegally Obtained Evidence

1. The basic issues to review in suppression matters are: (a) Was there a seizure?
[U.S. v. Mendenhall, 446 U.S. 544 (1980); U.S. v. Martinez-Fuerte, 428 U.S. 543
(1976)]; (b) If it was not a seizure, was there a constitutional violation because there was
no reasonable suspicion for the stop? [Terry v. Ohio, 392 U.S. 1 (1968)]; (c) If a seizure,
was there probable cause? [Dunaway v. New York, 442 U.S. 200 (1979)]; (d) Does the
party asserting the constitutional right have standing? [Rakas v. Illinois, 439 U.S. 128
(1978)]; (e) Does the Fourth Amendment apply at all? [U.S. v. Verdugo-Urquidez, 494
U.S. 259 (1990)]; (f) Is Miranda v. Arizona, 384 U.S. 436 (1966) applicable? Missouri v.
Seibert, 542 U.S. 600 (2004) [confession obtained without Miranda warnings still
inadmissible even if repeated after warnings were given].
a. An alien with insignificant ties to the U.S. has no Fourth Amendment right to
prevent the seizure of his property located outside the U.S., even where the person is in
the U.S. and the seizure failed to comply with Fourth Amendment standards. U.S. v.
Verdugo-Urquidez, 494 U.S. 259 (1990).
b. In removal proceedings respondent/applicant cannot generally suppress evidence
asserted to be procured in violation of the Fourth Amendment. INS v. Lopez-Mendoza,
468 U.S. 1032 (1984) [Fourth Amendment–based exclusionary rule inapplicable to
deportation proceeding.] Matter of Sandoval, 17 I&N Dec. 70 (BIA 1979). But if there
was a policy or widespread abuse, or if there are egregious Fourth Amendment violations
which transgress notions of fundamental fairness, the exclusionary rule might apply.

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Lopez Mendoza, supra at 1050–51 and n.5; Matter of Cervantes, 21 I&N Dec. 351, 353
(BIA 1996); Matter of ___ (In removal proceedings in Immigration Court, New York)
(Weisel, IJ) [terminated removal proceeding after suppressing evidence from coercive
practices arising out of NSEERS process], reprinted in 82 No. 36 Interpreter Releases
1505, 1526–39 (Sept. 19, 2005). Seizing person outside of his apartment and conducting
a nonconsensual warrantless search based solely on his Nigerian-sounding name is an
egregious violation warranting suppression. Orhorhaghe v. INS, 38 F.3d 488 (9th Cir.
1994) [an egregious Fourth Amendment violation does not require that the violation
undermine the probative value of the evidence]. Stopping someone based solely on race
constitutes an egregious violation and the evidence will be suppressed. Gonzalez-Rivera
v. INS, 22 F.3d 1441 (9th Cir. 1994) [where Border Patrol stopped Hispanic and all other
reasons had low probative value, evidence suppressed]. Also, an improper arrest under
INA §287(a)(2), 8 U.S.C. §1357(a)(2), raises “difficult questions.” Westover v. Reno, 202
F.3d 475, 479–80 (1st Cir. 2000) [no right to suppress removal proceedings but
recognizing that whether evidence from an illegal arrest should be used is a more difficult
question under the statute]. But see Chuyon Yon Hong v. Mukdasey,518 F.3d 1030, 1034–
36 (9th Cir. 2008) [where former corrupt INS official used respondent’s nonpublic
information to gain an advantage in plea bargaining, respondent claimed unsuccessfully
that the use of the information violated 5 C.F.R. §2635.703(a)]; Melnitsenko v. Mukasey,
517 F.3d 42, 47–49 (2d Cir. 2008) [motion to suppress denied because 3 hour detention,
without Miranda or other warnings, after 4 or 5 uniformed officers escorted petitioner
who was interrogated, fingerprinted and photographed was not so egregious under Lopez
Mendoza to warrant suppression]; Kandamar v. Gonzales, 464 F.3d 65, 70–74 (1st Cir.
2006) [denied respondent’s motion to suppress statements taken at the NSEERS
interview as well as the improper seizure of his passport and rejected due process and
equal protection challenge to NSEERS program on intermediate scrutiny and rational
basis grounds]; Almeida-Amaral v. Gonzales, 461 F.3d 231, 234–37 (2d Cir. 2006) [stop
of 17 year old Brazilian child at gas station not near the border was a violation of the
Fourth Amendment but lacked evidence that it was based solely upon race as in
Gonzalez-Rivera and was therefore not egregious]; Navarro-Chalan v. Ashcroft, 359 F.3d
19, 21–24 (1st Cir. 2004) [where respondent answered questions including information
for I-213 before arrest warrant was issued he could not suppress name, identity and other
I-213 information—no egregious violation].
c. Suppression is still possible under the Fifth Amendment. Matter of Garcia-Flores,
17 I&N Dec. 325 (BIA 1980); Matter of Toro, 17 I&N Dec. 340 (BIA 1980). Coerced
confession has been held to be suppressible. Navia-Duran v. INS, 568 F.2d 803 (1st Cir.
1977); Bong Youn Choy v. Barber, 279 F.2d 642 (9th Cir. 1960). Also, evidence may be
suppressed that is derived from illegal electronic surveillance. 18 U.S.C. §3504(a);
Matter of Hemblen, 14 I&N Dec. 739 (BIA 1974). Review of the decision to deny
disclosure of electronic surveillance information is in the court of appeals in a review of a
final order of deportation. U.S. v. Hamide, 914 F.2d 1147, 1152–53 (9th Cir. 1990). But
see Ali v. Gonzales, 440 F.3d 678, 681–82 (5th Cir. 2006) [even if NSEERS violated
equal protection, the exclusionary rule does not apply].
d. Suppression is also possible under the administrative exclusionary rule of the BIA
see Matter of Garcia-Flores, 17 I&N Dec. 325 (BIA 1980) where DHS violates
regulations promulgated for the noncitizen’s benefit, and noncitizens suffers prejudice.

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 e. Suppression under the First Amendment has been rejected in the context of an
employer engaging in unfair labor practices to obtain DHS’s intervention in a labor
dispute. Montero v. INS, 124 F.3d 381, 386 (2d Cir. 1997).
f. Suppression of statements in forfeiture or otherwise not granted even where there
was a violation of the Vienna Convention on Consular Relations for failure to notify the
noncitizen of his right to communicate with his embassy. Sanchez-Llamas v. Oregon, 548
U.S. 331 (2006) [in criminal proceeding suppression is not an appropriate remedy for an
Article 36 violation and regular state rules of procedural default apply to bar Article 36
claims].
g. A person’s statement may be suppressed if there was substantial delay between the
time of arrest, the time the statement was taken, and the time s/he was taken before a
magistrate to be charged. U.S. v. Superville, 40 F.Supp.2d 672, 680–90 (D.V.I. 1999)
[where INS took person into administrative detention, questioned him a second time 8
days later, and did not bring him before a judicial officer until another week, the delay
violated Fed. R. Crim. P. 5(a), the McNabb-Mallory rule, and 18 U.S.C. §3501(c) and the
statement was suppressed].
h. Evidence that is the fruit of the unlawful action is also suppressible. Wong Sun v.
U.S., 371 U.S. 471, 484 (1963) [“The exclusionary prohibition extends as well to the
indirect as the direct products of such invasions”]. The “exclusionary sanctions applies to
any ‘fruits’ of a constitutional violation—whether such evidence be tangible, physical
material actually seized in an illegal search, items observed or words overheard in the
course of the unlawful activity, or confessions or statements of the accused obtained
during an illegal arrest and detention.” U.S. v. Crews, 445 U.S. 463, 470 (1980). See also
U.S. v. Juarez-Torres, 441 F.Supp.2d 1108, 1121–23 (D.N.M. 2006) [where vehicle stop
250 miles from border was unconstitutional, the court suppressed the defendant’s A-file,
fingerprints, evidence of identity, and all statements and observations]; U.S. v. Khan, 324
F.Supp.2d 1177, 1186–87 (D. Colo. 2004) [where officers did have reason to believe that
LPR was in U.S. in violation of law because he procured his residency by fraud but did
not have reasonable grounds to believe he would flee, arrest was unlawful and his
subsequent Mirandized statements were suppressed as fruit of an unlawful arrest]. The
commonly addressed exceptions to the rule are that the evidence was obtained from an
independent source, that evidence of identity is not suppressible, or there was inevitable
discovery or that the events between the unlawful activity and the information sought to
be used were sufficiently attenuated. A motion to suppress must be very specific. There
must be live testimony or a statement. Matter of Barcenas, 19 I&N Dec. 609 (BIA 1988).
i. Improper Use of Administrative Warrant—Documents and statements may also be
suppressed where there is a “deliberate use by the Government of an administrative
warrant for the purpose of gathering evidence in a criminal case,” Abel v. U.S., 362 U.S.
217, 226–29 (1960) [although on the record in the case the Court found no violation, it
did note that using the INS administrative process to gather evidence for a criminal
proceeding “to circumvent the latter’s legal restrictions” would be a violation of the
Fourth and Fifth Amendment].
j. Suppression of the Alien File—An alien (“A”) file need not be suppressed even if
there was an illegal arrest because the person does not have a legitimate expectation of

59
privacy in the file and therefore has no standing to challenge its introduction into
evidence. U.S. v. Herrera-Ochoa, 245 F.3d 495, 498 (5th Cir. 2001).
k. Suppression and Admission—Even if evidence could be suppressed, the person’s
admission of alienage and the other elements of a removal charge at the IJ hearing
nullifies any claim to suppression of evidence. Miguel v. INS, 359 F.3d 408 (6th Cir.
2004).
l. A motion to suppress must be very specific. There must be live testimony or a
statement. Matter of Barcenas, 19 I&N Dec. 609 (BIA 1988). There is no right to a
separate suppression hearing. Matter of Benitez, 19 I&N Dec. 173 (BIA 1984).
B. Encounters/Interrogation
1. To determine the validity of an interrogation, court must first determine if it was a
stop or a seizure. Standard to be used to determine if action was a seizure is whether a
“reasonable person would have believed he was free to leave.” U.S. v. Mendenhall, 446
U.S. 544 (1980); INS v. Delgado, 466 U.S. 210 (1984); U.S. v. Alarcon-Gonzalez, 73
F.3d 289 (10th Cir. 1996) [police officer yelling freeze turns stop into seizure]; U.S. v.
Alvarez-Sanchez, 774 F.2d 1036 (11th Cir. 1985); Martinez v. Nygaard, 820 F.2d 1024
(9th Cir. 1987), superseded by 831 F.2d 822 (9th Cir. 1987); Pearl Meadows Mushroom
Farm, Inc. v. Nelson, 723 F.Supp. 432, 447–48 (N.D. Cal. 1989).This standard is
reflected in DHS’s regulations. 8 C.F.R. §287.8(b). But see U.S. v. Harrell, 894 F.2d 120
(5th Cir. 1990) [investigative questioning by INS agents for one hour at airport
checkpoint behind glass wall not a custodial interrogation when information gained in
first few minutes].
2. For a stop, an officer needs reasonable suspicion based on specific articulable facts;
probable cause is not necessary. Terry v. Ohio, 392 U.S. 1 (1968). Neither the actual
motivation of the officer nor a determination of whether a stop would have occurred
under “normal circumstances” are relevant. Whren v. U.S., 116 S.Ct. 1769, 1774–76
(1997); cf. U.S. v. Lopez-Moreno, 420 F.3d 420, 432 (5th Cir. 2005) [under Terry even if
an officer’s subjective motivation for initiating a traffic stop was wrong because the
defendant did not violate the statute, the constitutionality of the stop would be upheld if
defendant was objectively violating a different traffic offense]; Whether the stop was
justified depends on the “totality of the circumstances” confronting the officer. U.S. v.
Arvizu, 122 S.Ct. 744, 750–53 (2002) [reversed court of appeals when it sought to
analyze each factor to determine whether there was an innocent explanation rather than
looking at the totality of the circumstances]; U.S. v. Brignoni-Ponce, 422 U.S. 873, 884
(1975) [lists factors to establish articulable facts]; U.S. v. Cortez, 449 U.S. 411, 418
(1981). Immigration officers have the right to stop and question a person “only for the
purpose of determining whether he or she has a right to be or remain in the U.S.” Lau v.
INS, 445 F.2d 217 (D.C. Cir.), cert. denied, 404 U.S. 864 (1971); INA §287(a), 8 U.S.C.
§1357(a). However, even this “statutory provision is limited by the Fourth Amendment.”
Murillo v. Musegades, 809 F.Supp. 487, 498 (W.D. Tex. 1992). A routine traffic stop is a
seizure under the Fourth Amendment. U.S. v. Baron-Cabrera, 119 F.3d 1454, 1458
(10th Cir. 1997) [although it is seizure it doesn’t require probable cause; it is
investigatory detention requiring only reasonable suspicion].

60
 ICE must have reasonable suspicion based upon articulable facts that the individual
questioned is an illegal alien unless consent is given by the person whom the officer
seeks to question. Matter of King and Yang, 16 I&N Dec. 502 (BIA 1978) [Oriental
appearance, plus past history of illegal employment at restaurant, plus anonymous tip
deemed sufficient for nondetentive questioning]; U.S. v. Rodriguez, 976 F.2d 592 (9th
Cir. 1992). Race or alienage alone is insufficient to establish the “specifically
articulable facts together with rational inferences from those facts” that suggest an
illegal alien is present, notwithstanding DHS’s broad authority under 8 U.S.C.
§1357(a)(1). However, where there is reasonable suspicion to stop someone (e.g., the
person was speeding) or detain them pursuant to a valid warrant, the mere questioning
of the individual about his immigration status does not, in and of itself, create a
separate event requiring probable cause and such questions do not therefore constitute
a Fourth Amendment violation. Muehler v. Mena, 544 U.S. 93, 100–01, 125 S.Ct.
1465 (2005) [officer did not need independent reasonable suspicion to ask the
respondent her name, date and place of birth and immigration status where such
questions did not prolong an otherwise valid detention]; U.S. v. Torres-Monje, 433
F.Supp.2d 1028, 1032–34 (D.N.D. 2006) [where officer stopped vehicle due to traffic
violation it was not a violation of the Fourth Amendment to ask about driver and
passenger’s immigration status]
a. No reasonable suspicion to stop found
U.S. v. Espinoza, 490 F.3d 41, 46–48 (1st Cir. 2007) [where ICE agent observed
nothing unusual or unlawful about a van’s operation during his surveillance and
where Boston was not a place generally associated with the smuggling of aliens,
his observation that the van had a Texas license plate, that it was registered in the
name of someone in a previous investigation for smuggling and that there were
two or three similar passenger vans used for smuggling in the past year were
insufficient for reasonable suspicion]; U.S. v. Manzo-Jurado, 457 F.3d 928 (9th
Cir. 2006) [reversed conviction for misuse of Social Security number where the
information was obtained through an illegal seizure based upon the officer’s
observation that Hispanic-looking men, who appeared to be a work crew, calmly
conversed in Spanish at a football game where they appeared out-of-place]; U.S.
v. Sigmond-Ballesteros, 285 F.3d 1117 (9th Cir. 2002) [reversed district court’s
denial of motion to suppress where defendant pulled off the road, attempted to
obscure his face from the officer’s shining light, was driving on a route notorious
for alien smuggling, was driving a vehicle (pick up truck) typically used for
smuggling without a back seat, was driving at 4:20am when the route was
normally used for commercial traffic and was on a route to the border but not near
the border]; U.S. v. Lopez-Valdez, 178 F.3d 282 (5th Cir. 1999) [reversed district
court denial of suppression motion notwithstanding vehicle’s proximity to border,
numerous passengers in the vehicle, and the road the vehicle was traveling on
could be used to circumvent an immigration checkpoint]; U.S. v. Rodriguez-Rivas,
151 F.3d 377 (5th Cir. 1998) [reversed district court denial of suppression motion
where vehicle stopped by Border Patrol because it had no front license plate];
U.S. v. Jones, 149 F.3d 364 (5th Cir. 1998) [reversed district court finding of
reasonable cause and held that under totality of circumstances the stop of the
vehicle was unconstitutional]; Gonzalez-Rivera v. INS, 22 F.3d 1441 (9th Cir.

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1994); Illinois Migrant Council v. Pilliod, 540 F.2d 1062 (7th Cir. 1976),
modified, 548 F.2d 715 (7th Cir. 1977); U.S. v. McDaniel, 463 F.2d 129 (5th Cir.
1972); Nicacio v. INS, 797 F.2d 700 (9th Cir. 1985) [Mexican or Latin appearance
alone are insufficient. “Articulable facts” forming the basis of reasonable
suspicion are “measured against an objective reasonable man standard, not by the
subjective impressions of a particular officer”]; U.S. v. Juarez-Torres, 441
F.Supp.2d 1108 (D.N.M. 2006) [where vehicle was stopped 250 miles from
border, there was not a sufficient factual basis for the border patrol to stop the
vehicle under the totality of the circumstances test]; U.S. v. Espinoza, 433
F.Supp.2d 186 (D. Mass. 2006) [a stop based solely upon the van having a Texas
license plate and designed similar to 2 or 3 other vans seized with undocumented
persons is not sufficient for a seizure]; U.S. v. Ross, 400 F.Supp.2d 939, 945–47
(W.D. Tex. 2005) [no reasonable suspicion to stop Jeep although there was
reasonable suspicion to stop another car that appeared to be with it]; U.S. v.
Olivares-Rangel, 324 F.Supp.2d 1218 (D.N.M. 2004) [when agent blocked car
seizure took place without probable cause or reasonable suspicion and
immigration records as well as all statements and fingerprint records are
suppressed]; U.S. v. Mendoza-Carrillo, 107 F.Supp.2d 1098 (D.S.D. 2000) [no
probable cause to detain passenger in car where minor traffic stop]; U.S. v. Lopez-
Valdez, 102 F.Supp.2d 728 (W.D. Tex. 2000) [an anonymous tip was insufficient
basis for investigative stop; evidence suppressed]; U.S. v. Alvarado-Ramirez,
975 F.Supp. 906 (W.D. Tex. 1997) [no probable cause or reasonable suspicion on
stop]; U.S. v. Covarrubia, 911 F.Supp. 1409 (D.N.M. 1994) [where officer listed
a series of factors but could not demonstrate how they related to his and fellow
officer’s experience in fighting transportation of illegal aliens, reasonable
suspicion was not established]; Murillo v. Musegades, 809 F.Supp. 487, 498–99
(W.D. Tex. 1992) [the failure to answer an INS officer’s questions or the refusal
to cooperate with the officer cannot be the basis to draw an inference for probable
cause or reasonable suspicion]; U.S. v. Ramos, 753 F.Supp. 75 (W.D.N.Y. 1990)
[Hispanic appearance alone insufficient]; Ramirez v. Webb, 719 F.Supp. 610
(W.D. Mich. 1989) [INS illegally detained and used excessive force against USCs
based upon their Hispanic appearance]; McElrath v. Goodwin, 713 F.Supp. 299,
303 n.3 (E.D. Ark. 1988). The objective reasonableness standard is applied in the
context of what inferences a trained DHS enforcement officer might reasonably
draw, rather than the inferences that might be drawn by a lay person. U.S. v.
Cortez, 449 U.S. 411 (1981); U.S. v. Sokolow, 490 U.S. 1 (1989). The standard is
equally applicable to state officers seeking to enforce immigration. Farm Labor
Organizing Comm. v. Ohio Hwy. Patrol, 991 F.Supp. 895 (N.D. Ohio 1997),
rev’d in part, 308 F.3d 523 (6th Cir. 2002 [state police enjoined from questioning
motorists about their immigration status without reasonable suspicion based on
articulable facts].
b. Reasonable suspicion to stop found
U.S. v. Berber-Tinoco, 510 F.3d 1083 (9th Cir. 2007) [reasonable suspicion for
stop where officers narrowed their suspicion through deduction as to the location
of the pick up of undocumented aliens and made reasonable factual inferences
based on their experience regarding smuggling activities in the area]; U.S. v.

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Hernandez, 477 F.3d 210 (5th Cir. 2007) [reasonable suspicion for stop where
events were close to the border, it was a notorious alien smuggling route, and the
anonymous tip was not bare]; U.S. v. Doe, 701 F.2d 819 (9th Cir. 1983) [vehicle
found in an area normally used to avoid checkpoints; when car was driving south
it was riding high, but it was heavily laden when returning. See also U.S. v.
Cheromiah, 455 F.3d 1216 (10th Cir. 2006) [roving patrol had reasonable
suspicion to stop vehicle under totality of the circumstances and acted with
permissible scope of the stop when he opened the side door of van even after
ascertaining that the 4 occupants were USCs]; U.S. v. Singh, 415 F.3d 288 (2d
Cir. 2005) [based upon the totality of the circumstances the Border Patrol agent
had reasonable suspicion to stop NYC driver who was near the northern border in
a remote areas]; U.S. v. Quintana-Garcia, 343 F.3d 1266, 1271–74 (10th Cir.
2003) [relying on Brignoni-Ponce factors and totality of the circumstances to
affirm denial of motion to suppress where border patrol agent stopped car and
drugs were found in it]; U.S. v. Neufeld-Neufeld, 338 F.3d 374 (5th Cir. 2003)
[relying on the Brignoni-Ponce factors, which must be analyzed collectively and
the use of the totality of the circumstances approach, even individually innocent
actions may collectively result in sufficient suspicion where as here the defendant:
(1) was 35 miles from the border, (2) was within 2 miles of a previous drug cache,
(3) was using a known drug smuggling route in an area known for drug
smuggling, and (4) appeared stiff, stared straight ahead, failed to acknowledge
Border Patrol officers and slowed down considerably. Denial of motion to
suppress in drug case affirmed.] U.S. v. Gandara-Salinas, 327 F.3d 1127 (10th
Cir. 2003) [reversed lower court’s grant of a motion to suppress because officer
reasonably relied on a number of factors including the size of respondent’s spare
tire]; U.S. v. Vasquez, 298 F.3d 354 (5th Cir. 2002) [affirmed denial of motion to
suppress where Border Patrol agent stopped new pickup truck that drove through
private ranch instead of highway without stopping and where driver continually
checked rear-view mirror]; U.S. v. Guerrero-Barajas, 240 F.3d 428 (5th Cir.
2001) [common route for smuggling, lawful vehicles infrequently travel the area
at night, vehicle riding low, and driver slowed and began to swerve once agents
followed him are sufficient specific and articulable facts]; U.S. v. Chavez-Chavez,
205 F.3d 145 (5th Cir. 2000) [agents identified the characteristics of the area of
the stop, including the proximity to a checkpoint, the rigid suspension of the
vehicle, the type of vehicle, the dirty appearance of the passengers, and the time
of day]; U.S. v. Orozco, 191 F.3d 578 (5th Cir. 1999) [under Brignoni-Ponce
criteria treated vehicle stop 200 miles from border as roving patrol requiring only
reasonable suspicion]; U.S. v. Samaguey, 180 F.3d 195 (5th Cir. 1999) [the
totality of the circumstances, including the reason to believe he was coming from
border, alone, in out-of-state car, registered to a female, at an unusual hour, on a
road known for illegal activity was sufficient]; U.S. v. Nichols, 142 F.3d 857 (5th
Cir. 1998) [totality of circumstances sufficient for stop where clean truck, with no
logo, coming from border with other factors]; U.S. v. Doyle, 129 F.3d 1372 (10th
Cir. 1997) [stop reasonable under the totality of the circumstances where sensor
indicated border crossing and other factors]; U.S. v. Cruz-Hernandez, 62 F.3d
1353 (11th Cir. 1995) [reasonable suspicion to stop vehicle even though it was not

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 coming from border where person dressed in clothes typical of undocumented
worker where he averted his eyes, where he appeared Hispanic, vehicle had out of
state license plates, and was a typical van for smuggling]; U.S. v. Tehrani, 49 F.3d
54, 59–60 (2d Cir. 1995) [reasonable suspicion to detain based in part on
companion’s illegality]; U.S. v. Espinoza-Santill, 976 F.Supp. 561 (W.D. Tex.
1997) [reasonable suspicion where it was very early in the morning when there
was very little traffic, where van was one mile from the border, where it was type
of vehicle that could be used to haul illegal aliens, where driver was Hispanic,
where he failed to yield and tried to evade agent]; U.S. v. Vendrell-Pena, 700
F.Supp. 1174 (D.P.R. 1988) [reasonable suspicion under Terry to stop taxi where:
(1) area known to be entry point for illegal aliens; (2) city taxi in remote rural
location; (3) taxi there in early morning hours]; U.S. v. Galindo-Hernandez, 674
F.Supp. 979 (E.D.N.Y. 1987) [reasonable suspicion established for stop where (1)
defendants flew from Miami which agents knew was a departure point for illegal
aliens; (2) their Hispanic appearance; (3) their nervous mannerisms; (4) their lack
of luggage; (5) one defendant’s expensive but ill-fitting attire; (6) their efforts to
create appearance they were traveling alone while actually traveling together].
But subjective factors such as “avoiding eye contact” or giving a “suspicious
look” are insufficient. Nicacio, supra; Martinez v. Nygaard, 831 F.2d 822, 827
(9th Cir. 1987) [stopping USC without objectively reasonable suspicion is
unlawful detention]; Ramirez, supra.
c. Good faith exception—Evidence may be admissible even if an officer errs where
s/he maintains a good faith and objectively reasonable belief that s/he has an adequate
foundation to make a stop. U.S. v. De Leon-Reyna, 930 F.2d 396 (5th Cir. 1991) (en
banc); U.S. v. Alvarado-Ramirez, 975 F.Supp. 906, 920–21 (W.D. Tex. 1997) [rejected
good faith exception].
3. Frisking—In order to frisk someone who has not been arrested the ICE agent must
have a reasonable suspicion based on specific articulable facts that the individual is
armed. Murillo v. Musegades, 809 F.Supp. 487, 498 (W.D. Tex. 1992).
4. Seizures—A stop may ripen into a lawful seizure only when there is probable cause.
Dunaway v. New York, 442 U.S. 200, 214–15 (1979); Murillo v. Musegades, 809 F.Supp.
487, 499 (W.D. Tex. 1992) [“A search or seizure will never be considered reasonable if
the officer stops the vehicle solely because of the Mexican ancestry of the occupant”];
Vasquez v. McPherson, 285 F.Supp.2d 334, 341 (S.D.N.Y. 2003) [where there was
immigration warrant for person meeting plaintiff’s description and plaintiff responded
with hostility, police officer had qualified immunity to arrest]; Vendrell-Pena, 700
F.Supp. 1174, 1178 (D.P.R. 1988) [where officers had sufficient suspicion to stop taxi
and where alien admitted that she was Dominican, was unable to provide documentation
and was evasive there was sufficient probable cause for arrest]. The refusal to answer
questions cannot be considered in determining whether there is probable cause to arrest.
Florida v. Royer, 460 U.S. 491 (1983); Ramirez v. Webb, 719 F.Supp. 610, 616 (W.D.
Mich. 1989). Requesting the driver of a stopped van to turn off his engine may constitute
a seizure. U.S. v. Espinoza, 490 F.3d 41, 48–50 (1st Cir. 2007) [where agent identified
himself as ICE officer, was wearing a holstered firearm, displayed his badge and began
asking questions, and in a commanding tone and manner indicated he wanted the driver

64
to shut off the van’s engine, it was not clearly erroneous for district court to draw
inference that there was a seizure without probable cause]. But see U.S. v. Torres-Lona,
491 F.3d 750, 756–57 (8th Cir. 2007) [admission that he was born in Mexico, did not
have immigration documents, and found in apartment complex known to house
undocumented persons where others had been arrested and false documents found was
enough for probable cause].
5. Interrogation Procedure—8 C.F.R. §§287.3 and 287.5. Statements taken on Form I-
213. Arresting officer should not take statement, §287.3(a) unless no other officer
available or it would result in unnecessary delay. Martinez-Camargo v. INS, 282 F.3d
487 (7th Cir. 2002) [where INS officer violated §287.3 but respondent was not prejudiced
evidence was not excluded and removal order was affirmed]; Matter of Garcia-Flores, 17
I&N Dec. 325 (BIA 1980). Alien has to sign Form I-214 waiver form. Advice of rights
should contain all rights under 8 C.F.R. §287.3 [advice includes: (1) reason for arrest; (2)
right to be represented by counsel of alien’s own choice; (3) list of available free legal
services; (4) self-incrimination; (5) notice that a decision will be made within 24 hours or
less; (6) whether alien will continue in custody or be released on bond]. Advice of rights
per regulation are given after interrogation. 8 C.F.R. §287.3. The Fourth and Fifth
Amendments may require otherwise. Navia-Duran v. INS, 568 F.2d 803 (1st Cir. 1977).
Statement cannot be taken from unaccompanied minor under18 on Form I-213. 8 C.F.R.
§1240.10(c).
In the aftermath of Sept. 11, 2001, the AG announced an “interview” program
targeted at young males from Middle Eastern countries whereby FBI and other law
enforcement “partners” would interview these persons about “international
terrorism.” Memo, Deputy AG, Guidelines for the Interviews Regarding International
Terrorism (Nov. 9, 2001), reprinted in 78 No. 46 Interpreter Releases 1816, 1829–35
(Dec. 3, 2001).
Department of Defense Interrogation—The uniform standards for the interrogation
of persons under the United States Army Field Manual on Intelligence Interrogation
do not apply to persons in the custody or under the effective control of the DOD
pursuant to the criminal or immigration law of the U.S. National Defense
Authorization Act for Fiscal Year 2006, PL 109-163, 119 Stat. 3136 (Jan. 6, 2006),
Title XIV, Sec. 1402.
6. Use of Force—DHS can only use reasonable force to effect a particular seizure.
Murillo v. Musegades, 809 F.Supp. 487, 500 (W.D. Tex. 1992) [Fourth Amendment
protects against physically intrusive behavior during an arrest]; Ramirez v. Webb, 719
F.Supp. 610, 616–18 (W.D. Mich. 1989). To determine whether force is excessive court
must balance the “nature and quality of the intrusion on the individual’s Fourth
Amendment interests against the countervailing governmental interest at stake.” Graham
v. Connor, 109 S.Ct. 1865 (1989); Tennessee v. Garner, 471 U.S. 1 (1985). DHS
guidelines set forth at 8 C.F.R. §287.8.
C. Area Control Operation/Investigative Searches / Worksite Enforcement Operations
1. Broad factory sweeps are constitutional—INS v. Delgado, 466 U.S. 210 (1984)
[factory sweeps/surveys are not work force seizures where persons believe they are free
to leave and do not constitute seizure of any individual worker under Terry v. Ohio]. But

65
detention of entire workforce is not permissible. Pearl Meadows Mushroom Farm, Inc. v.
Nelson, 723 F.Supp. 432, 445–49 (N.D. Cal. 1989).
Area control operations may under the Constitution be lawful seizures. Illinois
Migrant Council v. Pilliod, 531 F.Supp. 1011 (N.D. Ill. 1982) [reasonable suspicion
not probable cause is standard for a control operation]; English v. Sava, 571 F.Supp.
1029 (S.D.N.Y. 1983). But see Gallegos v. Haggerty, 689 F.Supp. 93 (N.D.N.Y.
1988) [distinguishing and rejecting English in context of farmhouse raid]. Routinely
boarding buses at scheduled stops and asking passengers for permission to search
luggage, following Delgado, is not a per se seizure. Florida v. Bostick, 111 S.Ct.
2382 (1991). But see U.S. v. Ellis, 330 F.3d 677 (5th Cir. 2003) [where border patrol
agents completed an immigration search of a bus they may not continue to detain
passengers to look for drugs absent individualized suspicion].
The standard to be applied for warrant to inspect is a “relaxed standard.” Blackie’s
House of Beef, Inc. v. Castillo, 659 F.2d 1211 (D.C. Cir. 1981), cert. denied, 455 U.S.
940 (1982) [provided “relaxed standard” of probable cause in searches of businesses
for INS purposes]. Accord International Molders & Allied Workers Local 164 v.
Nelson, 799 F.2d 547 (9th Cir. 1986) [preliminary injunction denied in part to restrain
use of “warrants of inspection” to enter private business premises to search for
unidentified or unknown aliens. The court accepted the lower standard for probable
cause articulated by the D.C. Circuit in Blackie’s House of Beef, supra. Persons need
not be named in warrant unless it is warrant to seize a person (instead of search
premises). However, part of basis for standard is that there were no employer
sanctions at the time]. See also Abel v. U.S., 362 U.S. 217 (1960).
Identification of Humanitarian Concerns in Worksite Enforcement. ICE has set
forth guidelines to be applied by officer when conducting a worksite enforcement
action that targets more than150 people. Guidelines For Identifying Humanitarian
Concerns In Worksite Enforcement Operations published on AILA InfoNet at Doc.
No. 07111631 [ICE should identify sole care givers and other humanitarian cases
including persons with serious medical conditions, pregnant women and nursing
mothers and parents needed to support seriously ill spouses or children so that they
may be released or obtain help from DIHS (Division of Immigrant Health Services of
HHS) or local or state SSSA (social security agency)
2. Standing to contest search/warrant—Following Rakas v. Illinois, 439 U.S. 128, 133–34
(1978), the Court found USCs or LPRs seized in factory raid had no standing under
Fourth Amendment to challenge warrant because no expectation of privacy existed where
work space was open and shared by 75 people. Martinez v. Nygaard, 831 F.2d 822, 825–
26 (9th Cir. 1987). But see International Molders v. Nelson, 674 F.Supp. 294, 296 n.1
(N.D. Cal. 1987) [aliens have standing to challenge warrant where it was directed at
seizing individuals, not just searching workplace as in Martinez]; Gallegos v. Haggerty,
689 F.Supp. 93 (N.D.N.Y. 1988) [following Rakas standing based on legitimate
expectation of privacy, not on property rights, and tenants at property where landlord’s
ownership of migrant farm dwelling was in question, still have reasonable expectation of
privacy].
3. Challenging the warrant

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 a. Test is whether warrant and supporting affidavit contain sufficient specificity and
reliability to prevent exercise of unbridled discretion by law enforcement officers.
International Molders v. Nelson, 674 F.Supp. 294, 296 (N.D. Cal. 1987) [relying on
Delaware v. Prouse, 99 S.Ct. 1391, 1395–97 (1979)].
b. Seizure of all of lawyer’s files may be permitted if there is a determination that
lawyer’s practice was “permeated by fraud.” Attorney-client privilege may not be a
basis to prevent search where it would protect the commission of a crime and where
information put on INS forms constituted a waiver of privilege. U.S. v. Oloyede, 982
F.2d 133, 140–41 (4th Cir. 1992).
c. Must determine whether it is warrant of inspection or general, open-ended seizure
warrant. A general warrant is not permissible. Marshall v. Barlow’s, Inc., 436 U.S. 307
(1978); See v. City of Seattle, 387 U.S. 541 (1967); International Molders v. Nelson,
674 F.Supp. 294, 297–300 (N.D. Cal. 1987). If there is a warrant of inspection issued to
conduct area-wide inspections to determine compliance, a less-than-probable-cause
standard (as in Blackie’s House of Beef, Inc. v. Castillo, 659 F.2d 1211 (D.C. Cir. 1981))
may apply. Camara v. Municipal Court of City and County of San Francisco, 387 U.S.
523 (1967). However, if the agency has used a warrant of inspection, the warrant may
be challenged under a 2-part test. Matter of Trinity Industries, 876 F.2d 1485 (11th Cir.
1989). First, the court must determine whether the plan pursuant to which the warrant
was issued is based on specific, neutral criteria. Second, the court must determine
whether the warrant application clearly and adequately establishes that the particular
company was selected pursuant to the application of the plan’s neutral criteria.
4. Warrantless Searches/Seizures
a. Open-field raids are not unlawful seizures. Oliver v. U.S., 466 U.S. 170 (1984) [even
where there were no-trespass signs and locked gates, there was no seizure]. But ICE,
by statute, must have consent of owner or warrant to enter “farm or other outdoor
agricultural operation.” INA §287(e), 8 U.S.C. §1357(e). However, ICE claims that
entry onto private land within 25 miles of the border (except private dwellings) may be
done without a warrant. 8 C.F.R. §287.5(b). But 8 C.F.R. §287.8(f)(2) provides that a
DHS officer may not enter into the nonpublic areas of a business, a residence
(including the cartilage), or a farm or other outdoor agricultural operation absent a
warrant or consent.
b. Night-vision goggles when used are not considered an unlawful. U.S. v. Vela, 486
F.Supp.2d 587, 589–90 (W.D. Tex. 2005) [use of night-vision goggles does not
constitute a search; Kyllo v. U.S. distinguished].
c. Cannot enter migrant farm dwellings without warrant. LaDuke v. Nelson, 762 F.2d
1318 (9th Cir. 1985).
d. Stops of Hispanic-looking persons on highways in State of Washington held
violative of Fourth Amendment. Nicacio v. INS, 797 F.2d 700 (9th Cir. 1985).
e. Warrantless searches are presumptively unreasonable and absent consent or probable
cause and exigent circumstances DHS cannot enter home to search or arrest. U.S. v.
Castellanos, 518 F.3d 965, 971–72 (8th Cir. 2008) [DHS officers cannot rely on 8
U.S.C. §1357 to conduct warrantless searches of homes, because it pertains to persons
seeking entry]; U.S. v. Troop, 514 F.3d 405 (5th Cir. 2008) [criminal prosecution for

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transporting an alien reversed because exigent circumstances did not exist to justify
border patrol’s warrantless entry of defendant’s home]; U.S. v. You, 198 F.Supp.2d 393
(S.D.N.Y. 2002) [evidence suppressed where agents made unlawful entry into home,
where they made unlawful arrest, and where consent to search under circumstances
was no voluntary]; Gallegos v. Haggerty, 689 F.Supp. 93 (N.D.N.Y. 1988).
Warrantless searches, absent warrant exceptions, also are not permitted on
“commercial curtilage” because such curtilage may be protected by the Fourth
Amendment where there is a reasonable expectation of privacy. Pearl Meadows
Mushroom Farm, Inc., 723 F.Supp. at 438–43.
f. DHS cannot simply rely on claims of state officers that they will obtain a warrant for
search. Guerra v. Sutton, 783 F.2d 1371 (9th Cir. 1986).
g. Consent to Search—Whether consent was knowingly given and voluntary is based on
totality of circumstances. U.S. v. Watson, 423 U.S. 411 (1976); Schneckloth v.
Bustamonte, 412 U.S. 218 (1973); U.S. v. Cruz-Mendez, 467 F.3d 1260 (10th Cir. 2006)
[in illegal reentry case the renter of the apartment gave consent for officer to come into
her living room and then her bedroom]; U.S. v. Esparza-Mendoza, 386 F.3d 953 (10th
Cir. 2004) [upheld re-entry after deportation conviction where central evidence
concerning identification was obtained voluntarily and officer’s statement that she
“needed” identification from the defendant did not, under the totality of the
circumstances, make his compliance nonvoluntary]; La Duke v. Nelson, 762 F.2d 1318,
1329 (9th Cir. 1985); U.S. v. You, 198 F.Supp.2d 393, 405 (S.D.N.Y. 2002) [under
circumstances including the fact that an unlawful arrest occurred, that defendant tried to
shut the door to his home and INS agents prevented it, and 6 agents were standing inside
his apartment or in the hallway at the time, his consent was not voluntary]; U.S. v.
Ramos, 753 F.Supp. 75, 80 (W.D.N.Y. 1990) [where INS never established that
defendant knew she had the right to refuse, consent was not established]. Where search
occurred after illegal stop, INS has higher burden to show consent was voluntary. U.S. v.
Alvarado-Ramirez, 975 F.Supp. 906, 919–20 (W.D. Tex. 1997). Where agent secured
consent to search defendant’s apartment by falsely representing to her that he could get a
search warrant, consent was not voluntary. U.S. v. Cruz, 701 F.Supp. 440 (S.D.N.Y.
1988); see also Pearl Meadows Mushroom Farm, Inc., 723 F.Supp. at 443–45. [coercive
or misleading statements used to obtain consent impermissible]. Where person consented
to speak with border patrol agent who made no gestures which objectively would
constitute detention there was no seizure of the person. U.S. v. Tehrani, 826 F.Supp. 789,
798–99 (D. Vt. 1993), aff’d, 49 F.3d 54 (2d Cir. 1995).
h. Wiretaps—Congress provided DHS with authority to wiretap persons engaged in
criminal activity related to alien smuggling or document fraud. IIRIRA §434,
18 U.S.C. §2516(l).
i. Consensual Recording—Where there is a reasonable expectation of privacy the
government has no right to record a person’s statements and such statements will not
be deemed voluntarily provided. Katz v. U.S., 389 U.S. 347 (1967). However, if an
informer is invited to participate and if a person voluntarily divulges information to the
informer, then that person is not protected by the Fourth Amendment. Hoffa v. U.S.,
385 U.S. 293 (1966). The First Amendment’s Free Exercise Clause is also not a
defense to an informer’s entry into a church and his recording of the conversations of

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 parishioners. U.S. v. Aguilar, 871 F.2d 1436, 1470–73 (9th Cir. 1989). However, the
Free Exercise Clause does require the government to use the “least restrictive means”
in the intrusion into church activities and it does prevent “unfounded and inappropriate
covert activity which has as its purpose or objective the abridgement of the First
Amendment freedoms of those involved.” Presbyterian Church (USA) v. U.S., 752
F.Supp. 1505, 1513–16 (D. Ariz. 1990).
5. Border/Checkpoint Search and Seizure
a. Border Search—The right of government agents to stop and search travelers at
international borders does not implicate the Fourth Amendment, U.S. v. Montoya de
Hernandez, 473 U.S. 531, 537 (1985); Carroll v. U.S., 267 U.S. 132, 153–54 (1925),
and probable cause is not required to justify a stop or search. U.S. v. Ramsey, 431 U.S.
606, 616 (1977); U.S. v. Moreno-Vargas, 315 F.3d 489 (5th Cir. 2002) [where drug
interdiction was secondary purpose of fixed immigration checkpoint the checkpoint
was reasonable and constitutional]; U.S. v. Stevenson, 274 F.Supp.2d 819, 820 (S.D.
Tx. 2002) [immigration border search where dog alerted to drugs is lawful]; U.S. v.
Waldron, 178 F.Supp.2d 738 (W.D. Tex. 2002) [same]. However, the detention of a
person at the border does implicate the Fourth Amendment and such detention must be
based on reasonable cause. Ramirez v. U.S., 81 F.Supp.2d 532, 536–37 (D.N.J. 2000).
Such border searches apply to persons exiting as well as entering the U.S. U.S. v.
Oriakhi, 57 F.3d 1290 (9th Cir. 1995). Although Congress gave DHS agents broad
authority to conduct such searches within a “reasonable distance” from the border, INA
§287(a)(3), 8 U.S.C. §1357(a)(3), which the agency has defined as 100 miles, 8 C.F.R.
§287.1(a)(2), the statute and regulation are subordinate to the Constitution. Even
roving patrols within 20 miles of the border were deemed not to be the “functional
equivalent” of the border, Almeida-Sanchez v. U.S., 413 U.S. 266, 273 (1973), and
therefore the Service was required to have probable cause, not reasonable suspicion, for
any stop of vehicles. Accord U.S. v. Venzor-Castillo, 991 F.2d 634 (10th Cir. 1993)
[where stop at point that allows someone to pass through 13 New Mexico towns before
checkpoint it was not within reasonable distance from border]. See also U.S. v.
Castellanos, 518 F.3d 965, 971–72 (8th Cir. 2008) [DHS officers cannot rely on 8
U.S.C. §1357 to conduct warrantless searches of homes, because it pertains to persons
seeking entry]. However, if the court determines that the stop is by a roving patrol at
the functional equivalent of the border then reasonable suspicion, not probable cause, is
sufficient. U.S. v. Brignoni-Ponce, 422 U.S. 873 (1975). The roving patrol at least
according to one court could be as far as 200–300 miles from the border. U.S. v.
Orozco, 191 F.3d 578 (5th Cir. 1999). But the reasonable suspicion standard is not
toothless. U.S. v. Jones, 149 F.3d 364 (5th Cir. 1998) [car more than 80 miles from
border in area near a national park cannot be considered to have come from the
border]; Murillo v. Musegades, 809 F.Supp. 487, 499 (W.D. Tex. 1992); U.S. v.
Alvarado-Ramirez, 975 F.Supp. 906 (W.D. Tex. 1997) [where INS agent had no
authority to stop for speeding, where there was a question as to whether person was
speeding, and where car with Mexican license plate had no obligation to stop there was
no reasonable suspicion]. But see U.S. v. Barron-Cabrera, 119 F.3d 1454 (10th Cir.
1997) [where officer observed person for nine–elevenths of a second he had sufficient
time to observe him].

69
b. Fixed Checkpoints that are Equivalent to the Border—Similarly, fixed checkpoint
stops need not meet the probable cause standard if they are deemed to be at the
functional equivalent of the border. U.S. v. Martinez-Fuerte, 428 U.S. 543 (1976); U.S.
v. Ventura, 447 F.3d 375 (5th Cir. 2006) [evidence of marijuana would not be
suppressed because border patrol agents at fixed checkpoint on Interstate 35 near
Laredo, Texas were entitled to sweep the restrooms and exterior luggage compartments
of commercial buses as long as their primary purpose was to interdict illegal
immigrants and the check did not unreasonably prolong the stop]; U.S. v. Pollard, 326
F.3d 397 (3d Cir. 2003) [checkpoint in U.S. Virgin Islands does not violate the Fourth
Amendment and does not violate equal protection under the Fifth Amendment]; U.S. v.
Barnett, 935 F.2d 178 (9th Cir. 1991) [search in secondary inspection]. Additionally,
an airport stop in Puerto Rico pursuant to INA §212(d)(7) and 8 C.F.R. §§235.5(a),
1235.5(a) held constitutional as border stop and as within Fourth Amendment, but
struck down practice of taking tickets as inconsistent with Florida v. Royer, 460 U.S.
491 (1983) and Fourth Amendment. Lopez-Lopez v. Aran, 844 F.2d 898 (1st Cir.
1988). A border search may also be conducted even where person was not admitted to
Canada and upon return to the U.S. was searched. U.S. v. Romm, 455 F.3d 990, 996–97
(9th Cir. 2006) [USC with laptop containing child pornography who was not admitted
into Canada was properly subject to border search upon his return to the US].
However, highway checkpoints that are not deemed to be the equivalent of the
border cannot only be justified “by some quantum of individualized suspicion.”
City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 457 (2000) [highway
checkpoint whose primary purpose was to interdict illegal narcotics was held
invalid because the program’s purpose is indistinguishable from fighting crime
generally]; U.S. v. Jaime, 473 F.3d 178, 181–83 (5th Cir. 2006) [followed
Edmond but determined that person on bus gave consent to open luggage that
contained drugs].
c. Laptop Searches at the Border—A developing area of law concerns the standard to
be applied by CBP at the border for searching a passenger’s laptop. In U.S. v. Arnold,
454 F.Supp.2d 999 (C.D. Cal. 2006) the court determined that the Fourth Amendment
does apply to a laptop search at the border and that the standard for such search is
reasonable suspicion which was not met in that case. See also U.S. v. Irving, 432 F.3d
401, 213–15 (2d Cir. 2005) [for nonroutine searches at the border such as looking
through luggage for diskettes, reasonable suspicion was needed but in this case there
was reasonable suspicion]; But see U.S. v. Romm, 455 F.3d 990, 996–98 (9th Cir.
2006) [routine border search of laptop did not require probable, cause, reasonable
suspicion or a warrant and court would not address whether First Amendment was
violated]; U.S. v. Ickes, Jr., 393 F.3d 501, 505–07 (4th Cir. 2005) [rejecting First
Amendment argument in regard to border search of laptop}
d. Search in International Waters—The extent of the Service’s authority to investigate
and search in international waters has been challenged in that the investigating
authority is limited to territorial waters under INA §287(a)(3), 8 U.S.C. §1357(a)(3).
However, the court in U.S. v. Chen, 2 F.3d 330 (9th Cir. 1993) cert. denied, 511 U.S.
1039 (1994), rejected this theory on the grounds that the AG’s authority, as delegated
under what is now INA §103(c), provides no such limitation. But see 8 C.F.R.

70
 §287.1(a)(1), specifically defining enforcement authority as 12 nautical miles out into
territorial seas.
6. Seizure of driver’s license and return to state motor vehicle bureau not unlawful
seizure. Lopez v. INS, 758 F.2d 1390 (10th Cir. 1985). Various states, e.g., Florida, in
light of the terrorist attacks on Sept. 11, 2001, have now established separate procedures
for noncitizens to obtain drivers’ licenses. These procedures, whose constitutionality has
yet to be tested, will be affected by the requirements of the REAL ID Act of 2005. See
“Driver’s Licenses & REAL ID Act,” in Ch. 6, section Error! Reference source not
found. (p.Error! Bookmark not defined.), infra.
7. Sting Operations—Legacy INS established guidelines for sting operations that do not
permit Service officers to make misrepresentations to induce persons to go to INS (e.g.,
“you will receive a work permit”), but nevertheless allows the Service to send a person a
letter saying they wish to discuss your immigration status. Memo, Meissner, Comm. HQ
243-P (Dec. 17, 1993), reprinted in 71 No. 23 Interpreter Releases 777, 796–99 (June 13,
1994).
8. Schools, Churches, and Funerals—INS also established guidelines providing that,
generally, no enforcement operations that are likely to involve apprehensions should
take place at schools, places of worship, or funerals, unless advanced written approval
is given by the DD or Chief Patrol Agent. Memo, Puleo, Acting Assoc. Comm. INS,
HQ 807-P (May 17, 1993). The procedures also require supervisory personnel to
consider: (1) availability of alternative measures; (2) the importance of the
enforcement action; (3) implementing measures to minimize the impact of the
operation; and (4) whether the action has been requested or approved by the
management of the institution involved. Memo, Wallis, Acting Reg. Director, Central
Region, INS COR 50/19.1.5 (June 14, 2001), published on AILA InfoNet at Doc. No.
08050774.
D. Subpoenas—The AG or any immigration officer has the power to subpoena
attendance and testimony and the production of documents “concerning any matter which
is material and relevant to the enforcement of this Act and the administration of the
Service, and to that end may invoke the aid of any court of the United States.” INA
§235(d)(4). But INA §235(a) has been held not to give the Service authority to issue
“John Doe” subpoenas where the targets of a general investigation are known. Peters v.
U.S., 853 F.2d 692 (9th Cir. 1988) [quashed subpoena issued pursuant to §235(a) which
ordered manager of labor camp to appear before INS and provide records and testimony
relating to persons residing at the camp].
E. Retention of Documents—ICE has set forth a policy on confiscation or return of
original documents to a person placed in removal proceedings. Memo, Torres, Acting
Director, ICE (July 14, 2006), published on AILA InfoNet at Doc. No. 07100536. If the
respondent is not legally entitled to possess the document, the document should be
returned to the government agency that issued it absent ICE operational need to retain it.
If the respondent legally possess the document, it should be returned to him or her. If the
respondent legally possess the document but ICE has an operational need for the
document, ICE maintains the right to retrain it.

71
a. Undocumented and Non-LPRs. ICE has a clear need for law enforcement purposes to
retain domestically issued documents such as driver’s licenses, Social Security cards, and
ID cards, when the person is undocumented or not an LPR.
b. Lawful Permanent Residents. LPRs are entitled to evidence of permanent status and
must be provided a temporary I-551 if ICE confiscates the original. If the card expires
during the proceedings, ICE “shall renew and/or re-extend the card.” If a final order is
entered ICE should confiscate the card. If relief is granted the I-551 should be returned. If
the LPR is not detained she is “legally entitled to basic forms of identification such as
driver’s licenses and Social Security cards until an administrative final order…” and
unless there is a clear operation need to retain the document it should be returned.
c. Government may seize and retain passport for purposes of removal hearing. Onwubiko
v. U.S., 969 F.2d 1392, 1397–98 (2d Cir. 1992). The U.S. courts and ICE have set forth a
procedure at the end of a criminal case of returning U.S. passports to the DOS and
foreign passports to the appropriate local office of DRO (Detention and Removal Office)
of ICE. Memo, Lee, Acting Director, ICE (June 22, 2005), published on AILA InfoNet at
Doc. No. 06071863; Memo, Gregoire, Chief, Policy and Operations Division,
Administrative Office of the United States Court (July 21, 2005), published on AILA
InfoNet at Doc. No. 06071865.
d. Requests By Foreign Governments. If foreign and/or domestic officials submit written
requests for the return of documents, ICE may surrender the documents and place copies
in the A-file.
e. Fraudulent Documents. Foreign and domestic government documents that are
counterfeit or were obtained fraudulently will be confiscated and retained by ICE
officials in all instances. Only authentic documents will be considered for return.
F. Arrest—An immigration officer has power to arrest a person without a warrant if the
officer has reason to believe the alien is in the U.S. in violation of law or regulation and is
likely to escape before a warrant can be obtained. INA §287(a)(2), 8 U.S.C. §1357(a)(2);
8 C.F.R. §287.5(c)(1); U.S. v. Khan, 324 F.Supp.2d 1177, 1186–87 (D. Colo. 2004)
[where officers did have reason to believe that LPR was in U.S. in violation of law
because he procured his residency by fraud but did not have reasonable grounds to
believe he would flee, warrantless arrest was unlawful and his subsequent Mirandized
statements were suppressed]. The Speedy Trial rule may apply in certain limited
circumstances, DHS officers may also arrest if the person has committed a felony under
any law concerning the admission, exclusion or expulsion of persons, or any offense
against the U.S., and the officer has reason to believe the person is guilty and there is a
likelihood of the person escaping. INA §287(a)(5), 8 U.S.C. §1357(a)(5), 8 C.F.R.
§287.5(c)(2), (3). A DHS officer may arrest if s/he has reasonable grounds to believe that
the person has committed or is committing any felony as long as other conditions are met
and the officer has completed appropriate training. 8 C.F.R. §287.5(c)(4); U.S. v. Laija-
Garcia, 347 F.Supp.2d 350, 357–59 (W.D. Tex. 2004) [Border Patrol had authority to
arrest person for what turned out to be a drug smuggling case because the arrest met all
the criteria of §287(a)(5)(B)]; Habeeb v. Castloo, 434 F.Supp.2d 899, 907 (D. Mont.
2006) [border patrol officer had probable cause to arrest refugee who provided officer
with a copy of his I-94 because he did not have the original I-94 he was required to have
in his personal possession pursuant to 8 U.S.C. §1304(e)]. The “reason to believe”

72
language has been interpreted to mean probable cause under constitutional standards.
U.S. v. Cortez, 449 U.S. 411 (1981); Martinez v. Nygaard, 831 F.2d 822, 828 (9th Cir.
1987) [where LPR is detained and arrested during factory raid, arrest was reasonable
because person did not have green card on her person, and therefore violated INA
§264(e)]. See also U.S. v. Villegas, 495 F.3d 761, 769–71 (7th Cir. 2007) [police officer
had probable cause to arrest defendant because he received information from other
Milwaukee police officer that there was an immigration apprehension request for
defendant because he had reentered the U.S. illegally after deportation]; Murillo v.
Musegades, 809 F.Supp. 487, 500 (W.D. Tex. 1992); U.S. v. Arzate-Nunez, 18 F.3d 730,
735–36 (9th Cir. 1994) [where agents recognized person as having been deported 8 or 9
months earlier, they had probable cause to arrest].
a. An arrest in violation of §287(a)(2), however, does not result in the dismissal of
removal proceedings. Westover v. Reno, 202 F.3d 475, 479–80 (1st Cir. 2000) [no right to
suppress removal proceedings, but recognizing that whether evidence from an illegal
arrest should be used is a more difficult question under the statute]. If person fails to
produce alien resident card after admitting s/he is a LPR, probable cause exists for an
arrest. U.S. v. Wright, 706 F.Supp. 1268, 1274 (N.D. Tex. 1989). But see Mountain High
Knitting, Inc. v. Reno, 51 F.3d 216, 217–19 (9th Cir. 1995) [where persons without green
card arrested then released when status verified, their arrest is illegal and use of INA
§264(e), 8 U.S.C. §1304(e) (not carrying green card), is pretextual].
b. An arrest warrant may be issued only by authorized persons. 8 C.F.R. §287.5(e)(2). If
an alien is arrested, his or her case shall be presented promptly “and in any event within
48 hours” for a determination of prima facie evidence of illegality, to issue or not to issue
an NTA and warrant of arrest, and to determine whether s/he should be released on bond.
Memo, Hutchinson, Undersecretary DHS (Mar. 30, 2004), “Guidance on ICE
Implementation of Policy and Practice Changes Recommended by the Department of
Justice Inspector General,” published on AILA InfoNet at Doc. No. 04041461
[reaffirming requirement of determination within 48 hours to charge individual, but
giving ICE 72 hours to serve the NTA]. However in the case of “emergency or other
extraordinary circumstance,” the determination shall be made “within an additional
reasonable period of time.” 8 C.F.R. §287.3(d). An “emergency or other extraordinary
circumstance” has been construed to mean: (1) a significant infrastructure or logistical
disruption because of terrorism, weather, natural catastrophe, power outage, serious
transportation emergency or serious disturbance; (2) a compelling law enforcement need
such as an immigration emergency resulting in the influx of large numbers of people
being detained; or (3) individual facts or circumstances unique to the person arrested
including medical care or a compelling law enforcement need. A noncitizen subject to the
emergency exception must be served with the NTA “as soon as practicable.” Memo,
Hutchinson (Mar. 30, 2004), supra.
c. An arrest may not be made in violation of INA §239(e). If an officer arrests a person
subject to abuse (VAWA case), trafficking (T visa) or substantial physical or mental
abuse resulting in a crime (U visa), the officer must certify that s/he has not solely relied
on information from an abuser, trafficker or perpetrator of a crime in making the arrest
and has not disclosed information obtained to anyone (except law enforcement). In
making the arrest she must independently verify the information to support the arrest and

73
must place the certificate on the NTA. INA §239(e); 8 U.S.C. §1367; Memo, Torres,
Director of DRO and Form, Investigations, ICE (Jan 22, 2007), published on AILA
InfoNet at Doc. No. 07022210.
d. Detention Without Charge—The USA PATRIOT Act of 2001 permits the DHS to
detain an individual for 7 days without filing a charging document if the AG certifies that
the individual is a terrorist. INA §236A(a)(3), (5) He shall also be promptly informed of
his rights. Id. Under the settlement reached in Lopez v. INS, Case No. 78-1912-WMB
(C.D. Cal. Aug. 20, 1992), a person arrested without a warrant who wishes to consult
with counsel will be given a minimum 2-hour period to communicate with counsel,
during which time INS will cease interrogation. INS implementation of the settlement is
described in Memo, McNary, Comm., CO-242 (Sept. 4, 1992), reprinted in 70 No. 5
Interpreter Releases 151, 160–68 (Feb. 1, 1993). The Service also placed greater
restrictions and tighter controls on arrests at schools, places of worship, funerals or other
religious ceremonies. Memo, Puleo, Acting Assoc. Comm., HQ 807-P (May 17, 1993),
reprinted in 70 No. 25 Interpreter Releases 870, 885–87 (July 2, 1993).
e. DEA Authority to Arrest—Cross designation to arrest. The agreement between DEA
and legacy INS to grant Border Patrol agents under Title 21 has been challenged as ultra
vires of Title 21 and the INA. U.S. v. Perkins, 166 F.Supp.2d 1116, 1124–30 (W.D. Tex.
2001) [AG did not have the authority to cross designate Border Patrol agents to make
narcotics arrests but evidence will not be suppressed]. However, all CBP personnel will
be cross-designated to perform customs and immigration inspections.
f. State and Local Authority to Arrest—State and local law enforcement officials may
arrest and detain a person who is “illegally present in the U.S.” and who has previously
been convicted of a felony in the U.S. and deported or left the U.S. after the conviction.
State and local officials may arrest or detain only if they receive appropriate confirmation
regarding the status of the person from DHS and only until DHS can take custody.
AEDPA §439, 8 U.S.C. §1252c. U.S. v. Villa-Velazquez, 282 F.3d 553 (8th Cir. 2002).
The AG asserts that state and local police, although not compelled to do so, have the
“inherent authority to arrest individuals whose names have been entered into the FBI’s
National Crime Information Center (NCIC) database because they have both: (1) violated
civil provisions of the Federal immigration laws that render them deportable and (2) been
determined by Federal authorities to pose special risks, either because they present
national security concerns or because they are absconders who have not complied with a
final order of removal or deportation.” Letter, Brown, Acting Asst. A.G., Office of Legal
Affairs, DOJ (May 7, 2003), published on AILA InfoNet at Doc. No. 03051340 (May 13,
2003). One court has concluded however that failure to comply with the requirements of
§1252c “does not limit or displace the preexisting general authority of state or local
police officers to investigate and make arrests for violations of federal law, including
immigration laws,” as long as such arrests are not precluded by state law. U.S. v.
Vasquez-Alvarez, 176 F.3d 1294 (10th Cir. 1999). Accord, U.S. v. Santana-Garcia, 264
F.3d 1188, 1192–94 (10th Cir. 2001). But state and local law enforcement officials may
not detain or question motorists about their immigration status or seize immigration
documents without reasonable suspicion based on articulable facts. Farm Labor
Organizing Comm. v. Ohio Hwy. Patrol, 991 F.Supp. 895 (N.D. Ohio 1997), rev’d in
part, 308 F.3d 523 (6th Cir. 2002. Pursuant to IIRIRA §642, local and state entities or

74
officials are prohibited from restricting any government entity or official from sending to
or receiving from DHS any information. City of New York v. U.S., 179 F.3d 29 (2d Cir.
1999) [statute upheld against City’s facial challenge].
i. The AG may also enter into a written agreement with a state or political subdivision
of a state to permit an officer or employee of the state or subdivision to perform
functions of an immigration officer related to the investigation, apprehension, or
detention of aliens. INA §287(g)(1), 8 U.S.C. §1357(g)(1). The state or political
subdivision shall be the party paying all expenses. The officers will not be considered
federal employees, but such persons “shall be considered to be acting under color of
Federal authority for purposes of determining the liability, and immunity from suit, ...
in a civil action brought under Federal or State law.” INA §§287(g)(4), (5), and (8).
Pursuant to INA §287(g)(1), the AG has entered into an agreement with the State of
Florida to train 35 state and local law enforcement officers in immigration
enforcement. MOU, AG/Gov. of Florida, Pilot Project to Authorize Training of Florida
State and Local Law Enforcement Officers (June 13, 2002), 79 No. 30 Interpreter
Releases 1120, 138–51 (July 29, 2002). ICE has also entered into an MOU with the
Arizona Department of Corrections (Sept. 2005), giving state officials the authority to
interview and charge detained respondents with removable offenses, reprinted in 10
No. 20 Bender’s Immigration Bulletin 1552, 1601–14 (Oct. 15, 2005).
ii. The AG has also promulgated regulations that authorize state and local law
enforcement officers to be deputized as immigration enforcement officers during a
“mass influx of aliens.” INA §103(a)(10); 28 C.F.R. §§65.83–.84.
iii. The DOJ and the DOD have also entered into a cooperative arrangement allowing
the National Guard to assist DHS with border patrol on the northern and southern
borders. “National Guard to Assist with Border Patrol,” published on AILA InfoNet
Doc. No. 02030432 (Mar. 4, 2002).
g. FBI Given Authority to Make Immigration Arrests—FBI agents have been authorized
by the AG to exercise the power of DHS agents to arrest noncitizens without a warrant
under INA §287, 8 U.S.C. §1357 (reason to believe person in U.S. in violation of
immigration laws) and to exercise the function of immigration officers for the purpose of:
(1) investigating, determining, the location of and apprehending, any alien who is in the
U.S. in violation of the INA or any law or regulation regarding immigration status, or (2)
enforcing any requirements of the INA and regulations. Memo, GC, FBI, Delegation of
Authority to the FBI to Exercise the Powers and Duties of Immigration Officers (Feb. 26,
2003), published on AILA InfoNet at Doc. No. 03100915.

75
 Criminalizing Immigration Law

By Ira J. Kurzban

History of Immigration and Criminal

Conduct
• 1875: Convicts
• 1891
1891: Ci
Crimes IInvolving
l i Moral
M l Turpitude
T it d
• 1931 Drugs
• 1940 Firearms
• 1988 Aggravated Felonies
• 1996 Domestic Violence,, Stalking,
g, and
Child Abuse; High Speed Flight
• 2006 Failure to Register As Sex Offender

1
 Past 20 Years
• Omnibus Anti-Drug Abuse Act of 1988:
– Defined
e ed Aggravated
gg a ated Felony
eo y
• Immigration Act of 1990/Violent Crime Control
and Law Enforcement Act
– Broaden Definition of Aggravated Felonies
• Illegal Immigration Reform and Immigrant
Responsibility Act (“IIRIRA”)
– Radicallyy Expanded
p Definition to Include Virtuallyy All
Felonies
– Mandatory Detention
– Removal of Virtually All Relief
– Redefined Conviction and Setence

How Did It Happen and What Were

the Consequences
• Redefine Reality
– “Illegal” Immigrants = Criminals
– Jails Are Filled With Illegal Aliens
• Reality:
– Immigrnats 5x Less Likely to Be In Prison
• UC-Irvine Study Found 3.5% incarceration for Native Born Men 18-39; .07%
rate for immigrant
– Crime rates are lowest in states with highest immigration populations
• 19 states had 13.6% decline
• Remaining states: 7.1% decline
• Consequences
– Greater Deportation of LPRs Resulting in Divided Families
– Greater Incarceration at Greater Expense to Federal Gov.
– Greater Use of Local Law Enforcement—287(g)/55 localities

2
 Paradigm Shift
• From: Punishing Civilly Criminal Conduct To:
Criminalizing Civil Conduct
• How
– Enforcing Criminal Statutes Regarding Immigration
Conduct
– Legislating Higher Penalties for Minor Criminal
Conduct
– Legislating New Crimes for Formally Civil Violations
• Terrorism As the Metaphor

The Shift to Criminalizing

Immigration Conduct
• April 2008: 58% of all Federal Prosecutions Were Immigration
Related
• March 2008: 9 9,350
350 immigration Prosecutions; 72
72.1%
1% increase over
2007; 193.1% over 5 years ago
• DHS: 530% increase in criminal worksite enforcement from 2004 to
2008
• Postville Iowa/Agriprocessors Inc.—May 12, 2008
– 307 Criminally Charged –18 USC 1028
• Waco Manufacturing in N.Little Rock, Arkansas—July 28, 2008
– 13 convicted of fraud and misuse of SS card-18 USC 1028
• Columbia Farms
Farms, South Carolina—Oct
Carolina—Oct. 7 2008
– 300 arrested; ICE announcement “will refer cases to US Atty for
possession of stolen docs; reentry after removal; other crimes

3
 REENTRY
• RE-ENTRY AFTER REMOVAL—8 USC 1326
– PENALTY: 2 to 20 years
y
– Elements for Re-entry: (1) alienage; (2) prior
deport/exclusion/removal order: (3) physical departure after
removal; and (4) voluntary reentry free from official restraint
– Defenses: Duress, justification, citizenship
– Suppression of “A” File
– Collateral Attack—U.S. v. Mendoza-Lopez,481 US 828 (1987)/8
U.S.C. 1326
• Exhausted
E h t d administrative
d i i t ti review
i
• Hearing Fundamentally Unfair
– Prejudice: Reasonable Likelihood v. Plausible Relief
• Denied effective judicial review

FOUND IN U.S.
• Found In After Removal—1326
• Defenses
– St
Statute
t t off Limitations—5
Li it ti 5 years ffrom time
ti discovered
di d or should
h ld hhave
been
• Found by Federal Not State Officials
– Constructive Knowledge?
– Entered U.S.
• Stopped at Border
• Under Official Restraint While Crossing Border
– Voluntarily and Knowingly
– Venue
– Entrapment
– Necessity Defense: (1) defendant faced with choosing lesser evils; (2)
acted to prevent harm; (3) reasonably anticipated connection between
his conduct and harm to be avoided; (4) no other legal alternative
– U.S. v. Mendoza-Lopez

4
Illegally Transporting, Harboring, or
Encouraging—INA 274(a)
• Includes: Bringing to and Encouraging to
C
Come tto, E
Enter
t or Reside
R id iin UU.S.
S
• Penalties: 5 years to death sentence
• Defenses
– Transportation Must Further Illegal Presence
– Harboring is not Employment; but see U U.S.
S vv.
Kim, 193 F.3d 567, 572-74 (2d Cir. 1999)
– Duress

MARRIAGE FRAUD—INA 275(C)

• Gov Must Prove:
– person
p knowingly
g y entered into a marriage
g
– marriage was entered into for purpose of evading immigration
law
– defendant knew or had reason to know of immigration law
• Establish Lack of Intention to Have Life Together?
– U.S. v. Orellano-Blanco, 294 F.3d 1143, 1148-52 (9th Cir. 2002)
[an intent to obtain something other than or in addition to love
and companionship where there was intent to have life together
does not create a sham marriage)
• Penalties: 5 years/$250,000 fine

5
 False Documents For Entry and
False Statements--18 USC 1546(a)
• Penalties
– 10 years for first or second offense
– 15 years if more than second offense
– 20 years in connection with drug trafficking
– 25 years to facilitate international terrorism
• False Statements on Immigration Documents: I-485/I-
130 re marriage fraud; I-140 re fraudulent L.C.
• Includes: Any fraudulent document “prescribed by
statute or regulation” for entry. And “knowingly accepting
and receiving counterfeit immigration documents”
documents e.g.
e g II-
751
• Defenses:
– Asylum
– Materiality

Identification Document Fraud---18

USC 1546(b)
• Use of ID document knowing that it was
nott issued
i d lawfully
l f ll or iis ffalse
l
• Submission of false attestation for I-9
verification
• Penalties: Up to 5 years

6
 Fraud and Related Activity-- ID
Documents—18 USC 1028
• Knowingly and Without Lawful Authority
• Producing,
P d i Transferring,
T f i P
Possessing
i or
Possessing with Intent to Use
• Identification Document/False ID or means of
identification
– Means includes: SS Number, DOB, state driver’s
license alien #,
license, # employer or taxpayer ID #
#, passport #
• Appears to be issued under federal, state,
foreign, international, quasi-gov. org.

Aggravated ID Theft ---18 USC

1028A
• Transfers, Possesses or Uses Means of
Identification of Another
• During Commission of Various Felonies
– False Claim to USC
– Employer Sanctions
– Failure to Depart or to Register
– Alien Smuggling
• Penalty—Mandatory 2 years
• Circuit Split: Defendant knows that means of
identification actually belongs to another person

7
 False Passport and False
Statement to Obtain Passport
• 18 USC 1543: False Passport
– Any Country Passport Not Just US
– No Asylum Defense, US v. Simo, 68 F.Supp.2d 706
(E.D. Va. 1999)

• 18 USC 1542: False Statement to Obtain US

Passport
– May Include Forgery In Predicate Documents
• Forging X-spouse signature on letter for child’s passport-U.S.
v. Baum, 380 F.Supp.2d 187, 204 (S.D. N.Y. 2005)

Removal Related Crimes

• Failure to Depart after Removal Order INA 243
– Failure to depart with 90 days of order or to appear for bag and
b
baggage lletter
tt
– Penalty: Up to 4 to 10 years
– Includes conspiracy: attorney or others
– Defenses: Invalidity of order; necessity due to fear of return
• Escape from Removal 18 USC 751(a)
– Defenses: Duress, no lawful order of detention in file
• Entry Without Inspection INA 275(a)
– Traditional criteria proving entry
• Failure to Comply With Terms of Release INA 243(b)
– Ankle bracelet; give false information; non-employment
• Green Card on Person INA 264(e)

8
 False Claims to US Citizenship or
Voting in Federal Election
• 18 USC 911: Falsely Represents Self to be a USC
– Elements: false claim; willful misrepresentation, to someone with
good
d reasons tto iinquire
i
– Not include false claim to US nationality on I-9
• 18 USC 1015(e)-(f): False claim or statement at any time
that person is or has been a citizen or national to obtain
federal or state benefit or right to vote
– No violation if parents USCs; defendant resided in US before 16;
and persons reasonably believed he was USC
• 18 USC 1015(a): False statement under oath in any
case, proceeding, or matter related to naturalization,
citizenship or registry.
• 18 USC 611 Voted in Federal Election
– Exception based upon USC family applies

Employer Sanctions INA 274A

• Knowingly Hire, Recruit, or Refer For a Fee
Unauthorized Worker
• Pattern and Practice Usually Required
– Defined as “regular repeated and intentional but not
isolated, sporadic or accidental 8 CFR 274a.1(k)
– Reserved for “serious and repeat offenders who have
clearly demonstrated an intention to evade the law”
H.Conf. Rep. No. 1000 (1986)
• Penalty: Up to 5 years if 10 or more
unauthorized employees in 12 month period
• Defining Entity: Does subdivision do its own
hiring and recruiting?

9
 TAB 13
Of Counsel—Breakfast with the Experts
(NO MATERIALS FOR THIS SECTION)
 TAB 14
Working with Non-Immigrant Visas
 The University of Texas School of Law

Presented:
2008 Immigration Law Conference

October 23-24, 2008

San Antonio, Texas

Non-Immigrant Work Visas

QUICK FACTS - H-1B, L-1, E-1/2, TN, H-2B & H-3

Judy J. Lee

Continuing Legal Education • 512-475-6700 • www.utcle.org

 Non-Immigrant Work Visas
QUICK FACTS - H-1B, L-1, E-1/2, TN, H-2B & H-3
by Judy J. Lee

H-1B Visa – Specialty Occupation

H-1B Requirements:

1. U.S. Employer petitioner

2. Job offer in a “specialty occupation” – one which normally requires at least a
baccalaureate degree
3. Alien has at least a bachelor’s degree or equivalent in a relevant field of study
a. Obtain educational evaluation for foreign degree
b. Obtain expert experiential evaluation for non-degreed H-1B
4. Prevailing wage or actual wage must be paid (higher of the two)
5. Labor Condition Application (ETA 9035) certified by DOL

H-1B Visa – Other factors to consider

1. Dual intent allowed – can pursue permanent residency

2. H-4 spouse can not work
3. Can apply for full time or part time H-1B
4. Can hold H-1B with more than one employer at the same time
5. Limited availability due to H-1B cap
6. Sometimes consulates will issue a B-1 in lieu of H-1B (9 FAM 41.31 N11)

H-1B Cap:

1. approximately 65,000 available – over 150,000 filed each year so a lottery

is held
2. additional 20,000 available for U.S. advanced degree holders
3. Not subject to the cap if:
a) previously held H-1B or currently in H-1B (with cap subject
employer)
b) extension of H-1B
c) currently on H-1B with a cap exempt employer but applying for
concurrent employment with a cap subject employer
4. Must file petition on April 1st for an October 1st start date
5. Cap Exempt employers are not subject to the cap and can file at any time:
a) institute of higher education; university
b) non-profit related or affiliated with institute of higher education
c) non-profit research or government research organization
d) beneficiary is a physician with a Conrad 30 J-1 waiver

1
H-1B Validity

1. Up to 3 years of initial stay

2. Extensions allowed to a maximum of 6 years
3. L-1 time counts against 6 years H-1B time
4. H-4 and L-2 time does not count
5. Can “re-capture” all time physically outside the U.S.
6. 6 years maximum does not apply if H-1B works in U.S. less than 6 months
per year
7. AC 21 - 3 year extension: if I-140 approved and visas are retrogressed
8. AC 21 – 1 year extension: if PERM and/or I-140 filed over 1 year
9. After residing abroad for 1 year, can return as H-1B for another 6 years

H-1B Employer Obligations

1. Liable for reasonable return transportation costs to last country of

residence if H-1B is terminated before validity ends; not liable for
transportation costs for H-4 dependents
2. File amended H-1B in case of material changes of job duties or worksite
3. LCA Obligations:
a) pay prevailing or actual wage
b) maintain public disclosure file
c) post notices in 2 places at worksite; notice must state salary or salary
range
d) no benching
e) offer same benefits as to U.S. workers
f) additional requirements for “dependent” employers

H-1B Portability - allows the beneficiary to begin work upon filing of the petition rather
than approval, if:

1) beneficiary was previously issued H-1B visa or held H-1B status;

2) beneficiary was lawfully admitted to the U.S.;
3) H-1B petition was filed timely; and
4) no unauthorized employment by beneficiary

H-1B Filing Fees

1. $320 Form I-129

2. $300 Form I-539 for H-4 dependents
3. $1500 if over 25 employees - ACWIA Training & Scholarship Fee
$ 750 if 25 or less employees - ACWIA Training & Scholarship Fee
None if “exempt” petitioner
(payable for initial petition and 1st extension; must be paid by the employer only)
4. $500 Anti Fraud fee – only payable for initial petition
5. $1000 Premium processing fee for 15 day processing – Optional

2
H-1B Resources

1. INA §101(a)(H); 212(n) – LCAs; 214(g) thru (j), and (n)

2. 8 CFR §214.2(h)
3. 20 CFR Part 655.700 thru 855 - LCA Regs
4. http://ows.doleta.gov/foreign/h-1b.asp Dept. of Labor H-1B Info
5. http://www.flcdatacenter.com/OesQuick.aspx Prevailing Wage Data
6. Kurzban’s, Interpreter Releases, AILA Infonet

L-1 Visa – Intracompany Transferee workers

L-1 Requirements:

1. U.S. employer and employer abroad are “qualifying organizations” – parent,

branch, affiliate or subsidiary
2. Both U.S. and foreign employer are or will be “doing business”
3. If U.S. petitioner has been “doing business” for less than 1 year, petition must
include additional “new office” evidence
4. Beneficiary has been employed full time abroad with the related qualifying
organization for at least 1 year in the 3 years prior to filing the petition
5. Beneficiary was employed abroad in an executive, managerial or specialized
knowledge position
6. Beneficiary will be employed in the U.S. in an executive, managerial or
specialized knowledge position

L-1 Factors to consider

1. Dual intent allowed – can pursue permanent residency

2. University degree is not required (except for L-1B blanket workers)
3. Foreign employment does not need to be same as U.S. employment – eg. can
be a manager abroad and a specialized knowledge employee in the U.S.
4. “Specialized Knowledge” test used by USCIS can be difficult to meet – be
sure to provide job details and read memos (eg. Ohata memo AILA Doc.
03020548)
5. L-1 workers placed at off site work locations must be supervised and
controlled by the petitioner
6. No prevailing wage requirement
7. L-2 spouse can work, but must obtain EAD

L-1 Validity

1. L-1A – Executive or Manager – 7 years maximum stay - initial validity of

up to 3 years with two extensions of 2 years

3
 2. L-1B – Specialized Knowledge – 5 years maximum stay – initial validity
of up to 3 years with one extension of 2 years
3. L-1B can be upgraded to L-1A if timely promoted to a manager or
executive to qualify for 7 years stay
4. “New Office” L valid for up to 1 year only
5. H-1B time counts against L-1 time
6. L-2 and H-4 time does not count
7. Can “re-capture” all time physically outside the U.S.
8. 5 or 7 years maximum does not apply if the L-1 works in U.S. less than 6
months per year
9. After residing abroad for 1 year, can return as L-1 for another 5 or 7 years

Blanket L Petition – USCIS can pre-approve a list of related qualifying entities on a

Blanket approval notice. L-1 beneficiaries can then apply directly at a U.S. consulate
with the approval notice and the consular officer will determine whether he/she meets the
criteria as an executive, manager or specialized knowledge professional worker. This
saves considerable processing time.

Requirements
a. Petitioner has 3 or more domestic and foreign branches, subsidiaries or
affiliates;
b. Petitioner and qualifying entities are engaged in commercial trade or
services;
c. Petitioner has been doing business for 1 year or more; and
d. One of the following:
i. Ten L visas in the past 12 months, or
ii. U.S. combined annual sales of at least $25 million, or
iii. U.S. workforce of at least 1,000 employees

Differences between a Blanket L and Individual L

a. L-1B Specialized Knowledge Blanket Ls must be “professionals” and
a degree is usually required
b. L-1 blanket transferees can move to any of the listed qualifying
entities with no need to file an amended petition as long as job duties
are the same
c. Blanket L initial validity is 3 years. Extension approved for
“indefinite” duration

L-1 Filing Fees

1. $320 Form I-129

2. $300 Form I-539 for L-2 dependents
3. $500 Anti Fraud fee – only payable for initial petition – Blanket L pays at
consulate
4. $1000 Premium processing fee for 15 day processing – Optional

4
L-1 Resources

1. INA §101(a)(15)(L)
2. 8 CFR §214.2(l)
3. 22 CFR §41.54
4. 9 FAM 41.54 N. 1-24 and Exhibit I – Specialized Knowledge
Questionnaire
5. Kurzban’s, Interpreter Releases, AILA Infonet

E 1 and E 2 Visas - Treaty Traders and Treaty Investors

E 1/2 Visa Requirements:

1. A Treaty of Friendship, Commerce or Navigation exists between the U.S. and

the country of citizenship of the E investor or trader
2. At least 50% ownership of the E enterprise is by nationals of the treaty
country
3. The E enterprise is bonafide – legal, real, active and operating
4. E-1 Treaty Trader – the trade must be:
a. Substantial – a continuous flow
b. International in scope – principally (over 50%) between the U.S. and
the treaty country
c. Trade can be of goods &/or services
5. E-2 Treaty Investor – the investment must be:
a. Already invested or actively in the process of investing – funds and
assets placed at risk
b. Substantial amount of capital
c. Not a marginal enterprise; not solely to earn a living
d. E-2 investor/owner must prove he will develop, direct, and control the
enterprise
6. Individual can be an E Trader or Investor owner or can be an employee of an
E treaty company
7. E visa employees must be:
a. Executive – great authority over policy and direction; or
b. Supervisory – supervises significant proportion of operations and does
not directly supervise low level employees; or
c. Special qualifications – essential to successful or efficient operations

E Visa – Other Factors to Consider

1. No dual intent – E visa holder must intend to depart U.S. after end of status
(however, E status can not be denied solely because of an approved labor
certification or immigrant visa petition)

5
 2. Can apply for E directly with a U.S. consulate, or can file to change status if in the
U.S.
3. Must register/qualify an E company before an E employee visa can be approved
4. When registering an E company with a consulate, check each post for their
specific documentary requirements
5. University degree is not a requirement
6. No prevailing wage requirement
7. Canadian citizens must obtain E visa stamp to travel
8. E spouse can work, but must obtain EAD

E visa Validity

1. up to 2 years on initial I-94

2. “floating” I-94 expiration date – 2 years given on I-94 from date of each
admission as long as E visa is valid
3. extensions of stay granted by USCIS for up to 2 years
4. E visa stamp validity varies by nationality – 1 year to 5 years

E visa Resources

1. INA §101(a)(15)(E); 8 CFR §214.2(e); 22 CFR §41.51

2. List of Treaty Countries: 9 FAM 41.51 Exhibit 1 (Note – no treaty with
China, El Salvadore, India, Russia or Venezuela)

TN Visa for Professionals under NAFTA – Citizens of Canada and Mexico

TN Visa Requirements:

1. Must be a citizen of Canada or Mexico

2. Job offer from a U.S. employer required
3. The occupation/profession is on the NAFTA list (Appendix 1603.D.1)
4. The alien possesses the university degree, certificate, license and/or
experience stated on the list as required for the occupation
5. Applying for the TN if not in the U.S:
a. Canadians (visa exempt) – apply at Port of Entry or Pre-Flight
Inspection (*Non-Canadian spouses of Canadian TN must obtain a TD
visa at a U.S. consulate)
i. Job offer letter
ii. Degree, diploma, certificate &/or experience letters
b. Mexicans – must apply at a U.S. consulate for a TN visa stamp
i. Job offer letter
ii. Degree & cedula, diploma, certificate &/or experience letters
iii. Any other documentation required by the specific U.S.
consulate in Mexico
iv. DS-156 or DS-160, DS-157 (if applicable) and visa fees

6
TN visa Factors to Consider

1. No dual intent; subject to INA §214(b)

2. University degree required for most, but not ALL occupations (eg. registered
nurse, computer systems analyst, scientific technician/technologist, management
consultant)
3. No prevailing wage requirement
4. Can hold full time or part time TN
5. Can not be self employed using TN
6. TN spouse can not work

TN visa Validity

1. 1 year on I-94 – Canadians issued only an I-94 stamped “Multiple Entry”;

no visa
2. TN visa for Mexicans can be issued for up to 3 years validity – I-94 valid
for 1 year periods

TN Visa Resources

1. 8 CFR §214.6
2. 9 FAM 41.59
3. DOS info http://www.travel.state.gov/visa/temp/types/types_1274.html

H-2B Temporary Workers

H-2B Visa Requirements

1. The job & employer’s need must be “temporary”

a. One time;
b. Seasonal;
c. Peak load; or
d. Intermittent
2. Job need is less than one year
3. “temporary” Labor Certification from DOL required documenting
unavailability of U.S. workers

H-2B Cap and Deadlines

1. H-2B cap of 66,000 – ½ (33,000) available October 1st and April 1st
2. Tight timeline to get H-2B approved
a. 120 days prior to start date is the earliest ETA 750 A can be filed with
SWA (State Workforce Agency) along with evidence of temporary
need
b. SWA coordinates 10 day recruitment including 3 day newspaper ad

7
 c. SWA forwards ETA 750 A to DOL Chicago
d. File I-129 with USCIS which has final decision on “temporary need”
i. USCIS can still deny I-129 with DOL approved ETA 750, if
USCIS decides need is not temporary
ii. I-129 can still be filed with USCIS even if ETA 750 is denied
by DOL; USCIS makes final decision
e. Premium processing of I-129 will usually be required
f. If beneficiaries are abroad, add wait time at consulate for visa issuance

H-2B Factors

1. No dual intent
2. Prevailing wage must be paid
3. Employer must pay return transportation costs if early termination
4. Multiple beneficiaries can be on one petition for same job
5. H-4 spouse can not work
6. Proposed H-2B regulations are pending with several changes including
filing directly with DOL rather than the SWA

H-2B Resources

1. 8 CFR §214.2(h)(6)
2. DOL website http://www.foreignlaborcert.doleta.gov/h-2b.cfm and
http://www.foreignlaborcert.doleta.gov/

H-3 Trainee Visa

H-3 Trainee requirements

1. Purpose of stay is for training

2. Detailed description of the training program is required
3. The training is not available in beneficiary’s home country
4. No productive employment as H-3, except incidental to training
5. Training can not be for ultimate staffing of U.S. operations
6. Training will benefit beneficiary for a career outside the U.S.
7. Special requirements for Externs, Nurses and Special Education Exchange
Visitors; H-3 is not available to physicians for graduate medical training

Factors to consider

1. A degree is not required

2. Trainee does not need to be employed by Petitioner’s related company abroad
3. Can not use H-3 to extend an F-1’s practical training
4. Sometimes can obtain B-1 in lieu of H-3 (9 FAM 41.31 N11)
5. No prevailing wage requirement

8
 6. No dual intent
7. H-4 spouse not allowed to work
6. Multiple beneficiaries on same I-129 allowed, but can be problematic for visa
processing

H-3 Visa Validity

1. Maximum stay is 24 months

2. After 24 months, must remain outside the U.S. for 6 months to be admitted in
H or L status

H-3 Resources - 8 CFR §214.2(h)(7)

9
 Working with
Non-Immigrant Visas
Presented by:

Judy J. Lee and Mona Gupta

Evaluating Options for

Temporary Work Visas
• Analyze
y and evaluate the legal
g
requirements for possible work visas

• Ask the right questions to learn the clients’

particular circumstances

• Apply practical considerations

• Provide the best advice

1
 Mr. Wu’s Visa Options
Acme Widget, a U.S. company owned 50/50 by
nationals of France and India located and
operating in the U
U.S.,
S France
France, India
India, China and
Mexico, wishes to hire foreign Engineers and
Electronics Technicians. They plan to pay the
Engineers $45,000 per year and the Technicians
$30,000 per year.

Mr. Wu is a citizen of China currently working at

Acme Widget Shanghai for the past 2 years. He
holds a bachelor’s degree from a major university
in China. Acme Widget wants to offer him an
Engineer position in the U.S.

Mr. Wu - L-1B Specialized

Knowledge Transferee Visa
Is there a qualifying company relationship?

Are you able to obtain documents to evidence the

qualifying company relationship and operations of
each company?

Has Mr. Wu been working in a specialized knowledge

or managerial capacity in Shanghai?

Is the Engineer position in the U.S. a “specialized

knowledge” position?

Where will Mr. Wu work – at Acme Widget’s worksite

or another company’s worksite?

2
 Mr. Wu - H-1B Visa
Is the U.S. position a “specialty occupation” normally
requiring a bachelor’s degree?

Does the $45,000 offered salary meet the prevailing

wage or actual wage?
http://www.flcdatacenter.com/OesQuick.aspx

Is Mr. Wu’s degree in a field relevant to the position

and equivalent to a U.S. bachelor’s degree?

Is Acme Widget a cap subject or cap exempt

employer? Or is Mr. Wu not subject to the cap
based on having previously held H-1B?

Mr. Wu - Pros and Cons of L-1B

and H-1B Visas
• L-1
L 1 (con) U.S. &/or Foreign position may not meet
definition of “specialized knowledge”
• L-1 (con) Acme Widget U.S. &/or Shanghai may
not release all documents needed to prove a
qualifying relationship
• L-1 (pro) No prevailing wage requirement
• L-1 (pro) L-2 spouse can apply for an EAD
• L-1B (pro) No cap; Quicker start date, especially if
premium processed
• L-1B (pro) Even quicker start date if there is a
Blanket L

3
Mr. Wu - Pros and Cons of L-1B and
H-1B Visas continued

• H
H-1B
1B (con) Limit on visa availability due to the H
H-
1B Cap
• H-1B (con) Higher filing fees compared to L-1B –
additional H-1B ACWIA fee
• H-1B (con) H-4 spouse not eligible to work
• H-1B (con) H-1B visa for Chinese issued valid only
3 months and 2 entries per the visa reciprocity
schedule
• H-1B & L-1 (pro) Dual intent – can pursue green
card if desired

Ms. Jolie’s Visa Options

Acme Widget, a U.S. company owned 50/50 by nationals
of France and India located and operating in the U.S.,
France India
France, India, China and Mexico
Mexico, wishes to hire foreign
Engineers and Electronics Technicians. They plan to
pay the Engineers $45,000 per year and the
Technicians $30,000 per year.
Ms. Jolie, a citizen of France born in Iran, is currently
working for a competitor company in Dallas in L-1B
status as a Technician since December 2003. She
holds an Associates degree in Engineering Technology
from France and has 15 years of work experience.
Acme Widget wishes to offer her a Technician position.

4
 Ms. Jolie - E-2 Investor Visa
• Are documents available that evidence
Acme Widget is a treaty investor company?

• Will Ms. Jolie qualify as an essential

employee with special qualifications?

Ms. Jolie - H-1B Visa

• Is the Technician position a “specialty

occupation”?

• Does she possess education and

experience equivalent to a U.S. bachelor’s
degree?

• Will the $30,000 offered salary meet the

prevailing wage?

5
 Ms. Jolie - Pros and Cons of
E-2 and H-1B
• E-2 (con) Acme Widget may not provide the
documentary evidence to prove it qualifies as a
“treaty investor”
• E-2 (con) Ms. Jolie may not qualify as an essential
employee with special qualifications
• E-2 (pro) No prevailing wage requirement
• E-2 (pro) E-2 spouse can apply for an EAD
• E-2 (pro) Quicker start date, especially if premium
processed (change of status)
• E-2 (pro) Lower cost – no ACWIA or Anti Fraud fee
• E-2 (con) No dual intent

Ms. Jolie - Pros and Cons of

E-2 and H-1B continued
• H-1B (con) more difficult to get “Non-degreed” and
“Technician”
Technician jobs approved
• H-1B (con) Limit on visa availability due to the H-
1B Cap
• H-1B (con) H-4 spouse not eligible to work
• H-1B (con) only 1 year left of 6 year max H-1B time
since L-1B time is subtracted
• H-1B (pro) Dual intent – can pursue green card if
desired

• H-1B & E-2 (con) Security Clearance and TAL

delays possible since COB is Iran

6
 Ms. Jolie – L-1 Visa Option

Transfer Ms.
Ms Jolie abroad to work
at a foreign Acme Widget office
for at least 1 year in a specialized
knowledge or managerial
capacity, and bring her back to
work in the U.S. with an L-1 visa.

Mr. Shah’s Visa Options

Acme Widget, a U.S. company owned 50/50 by nationals of
France and India located and operating in the U.S., France,
India China and Mexico,
India, Mexico wishes to hire foreign Engineers
and Electronics Technicians. They plan to pay the Engineers
$45,000 per year and the Technicians $30,000 per year.

Mr. Shah is a citizen of Nepal and Canada. He is

currently in F-1 student status with OPT (optional
practical training) valid until June 15, 2009. He
earned a U U.S.
S Master’s
Master s degree in Physics in May
2008. Acme Widget wants to offer him an Engineer
position.

7
 Mr. Shah - TN (NAFTA) Visa
Does Mr. Shah qualify for any TN NAFTA
occupations?
• Engineer?
• Scientific Technician/Technologist?
• Physicist?

Is Mr
Mr. Shah a citizen
citi en of Canada or Me
Mexico?
ico?

Mr. Shah - H-1B Visa

• Does he meet the educational qualification

for an Engineer position?

• Will the $45,000 offered salary for Engineer

meet the prevailing wage?

8
 Mr. Shah - Pros and Cons of
TN and H-1B
• TN (con) Mr. Shah’s education may not
meet the NAFTA occupation requirements
• TN (pro) No prevailing wage requirement to
meet
• TN (pro) Quick start date, can apply directly
at any Class A POE (Canadian)
• TN (p
(pro)) Lower cost – no ACWIA or Anti
Fraud fee
• TN (pro) Validity of 3 years; same as H-1B
• TN (con) No dual intent

Mr. Shah - Pros and Cons of

TN and H-1B
• H-1B (con) Limit on visa availability due to
the H
H-1B
1B Cap – however,
however he has better
odds with the U.S. Master’s degree

• H-1B (pro) Can try twice for H-1B with F-1

STEM OPT extension

• H-1B (con) H-4 spouse not eligible to work

• H-1B Dual intent – can pursue green card if

desired

9
 Tools to Start an NIV Case

• Client handout for various work visas

• Document checklist

• Employer Questionnaire

• Foreign National Questionnaire

• Engagement Letter or Contract

5177 Richmond Avenue, Suite 800

Houston, Texas 77056
713-
713-625-
625-9200 – Phone
713-
713-625-
625-9292 – Fax
www.quanlaw.com

Leaders in Immigration Law

San Antonio Rio Grande Valley Mexico City

10
 TAB 15
Strategic Planning Using Immigrant Visas
 The University of Texas School of Law

Presented:
2008 Conference on Immigration and Nationality Law

October 22-24, 2008

San Antonio, Texas

Strategic Planning Using Immigrant Visas

Mona Gupta

Author contact information:

Mona Gupta and Alana N. Taylor
Gupta & Wiora, P.C.
Addison, Texas

mona@immigrationteam.com
alana@immigrationteam.com
972-701-8200

Continuing Legal Education • 512-475-6700 • www.utcle.org

 Strategic Planning Using Immigrant Visas

In today’s global economy, high value is placed on the trade of goods and services, which makes
the timely, impediment-free and permanent movement of personnel across borders critical at
times. As a result, it becomes extremely important to both corporate and individual clients to be
able to assess the best and/or fastest route available toward permanent resident status. With
immigrant visa retrogression, post-9/11 security concerns, layoffs, the downturn in the U.S.
economy, and general processing delays, one must become adept at analyzing and then guiding
his/her client through the sometimes confusing employment based immigrant process.
Overview
There are many different methods to obtain permanent resident status in the United States. The
end result of the process, regardless of the route chosen, is still the same – permanent resident
status – which enables the individual to live and work without the restraints caused by
nonimmigrant status in the U.S. such as expiration dates, employment restrictions, filing
deadlines, and visa renewals.
How one goes about obtaining permanent resident status depends upon his or her ability to
document either an employment or familial relationship. Each method requires extensive
documentation and the requirements vary depending on the method selected.
Family
It is possible for close family relationships, such as spouses, children, parents, and siblings, to
serve as a basis of immigration for many individuals. Extended family relations such as
grandparents, grandchildren, aunts, and uncles could possibly obtain permanent resident status,
but only after his or her more direct relative [assuming they have one] acquires permanent
resident status or becomes a U.S. citizen. It should be noted that permanent residents can only
petition for their spouses and unmarried children, while U.S. citizens, in addition to their spouses
and single children, can also confer immigration benefits to their parents, married children,
and/or siblings.
While possible family connections should always be considered in your analysis, this session
will focus on the options for permanent resident status under various employment-based
categories.
Employment and Investment
When an individual does not have a family relationship with a U.S. permanent resident or U.S.
citizen or if one does exist and the individual does not want to pursue it, he or she must rely on
either a relationship with a U.S. employer or a job-creating investment opportunity. The

1
Immigration and Nationality Act1 provides a yearly minimum of 140,000 visas in this category,
which are divided into five preference categories.2 Most of these categories have built-in
protections for the U.S. labor market, which takes the form of a test of the U.S. labor market via
the labor certification process. Within each of these categories, a certain percentage
(approximately 7 percent) of the total visas is designated as a ceiling number beyond which
individuals born in particular countries may not receive visas in a given fiscal year.3 Please note
the 7 percent is not a per-country allocation. For the purposes of the numerical control, visas are
charged against one’s country of birth abroad, not the place of their citizenship (four exceptions
to this under cross-chargeability.)4

Please see current visa bulletin.

Statutory Regulations and Requirements5

1. Priority Workers
Employment-based First Preference (EB-1) workers receive 28.6 percent6 of the
worldwide immigrant visa limit.7 As there is no showing of shortage in the U.S. labor
market required and there are currently no quota backlogs (always subject to change), this
is a preferred employment route to permanent resident status for those that can qualify in
one of the three sub-categories.
a. Persons of extraordinary ability in the sciences, arts, education, business or athletics:
must have extensive documentation to establish sustained national or international
acclaim and recognition in their field of expertise. A specific job offer is not
required; however, they must be entering the U.S. in order to continue their work in
the field of their extraordinary ability. Such applicants can file their own petition
with the USCIS, rather than through an employer.8

1
The Immigration and Nationality Act of 1952 (INA), Pub, L. No. 82-414, 66 Stat. 163 (codified as amended at 8
U.S.C. §1101 et seq.).
2
See INA §§201(d) and 203(b)(1)-(3).
3
INA §202(a)(2).
4
22 Code of Federal Regulations §42.12(b)-(e).
5
U.S. Department of State, Employment-Based Visas. See
http://travel.state.gov/visa/immigrants/types/types_1323.html
6
INA §203(b)(2).
7
U.S. Department of State, Employment-Based Visas. See
http://travel.state.gov/visa/immigrants/types/types_1323.html
8
See id.

2
 b. Outstanding professors or researchers: must have at least three years of experience in
teaching or research field and be recognized internationally. Individuals in this
category can bypass the labor certification phase; however, they must have a
permanent job offer and that employer must provide a job offer and file a petition
with the USCIS on the individual’s behalf.9

c. Multinational executives and managers: those that can be transferred from their
companies abroad to a related company in the U.S. An individual can qualify if they
have at least one year of prior executive or managerial experience with the related
company abroad (affiliate, parent, subsidiary, or branch) during the prior three years.
Individuals in this category can bypass the labor certification phase; however, they
must have a permanent job offer and the employer must file a petition with the
USCIS on the individual’s behalf.10

2. Employment-based Second Preference (EB-2)

EB-2 workers also receive 28.6 percent11 of the worldwide immigrant visa limit, plus any
unused Employment First Preference visas. Second Preference applicants must have a
labor certification approved by the DOL, or a Schedule A designation (Group II), a
permanent job offer, and an employer who files a labor certification that has been
approved by the Department of Labor. After the approval of the labor certification the
employer must also file a petition with the USCIS on the individual’s behalf.12
An individual can apply for an exemption of the job offer and the labor certification
requirement if it would be in the national interest (national interest wavier). The two
subgroups to this category are:
a. Professionals holding an advanced degree (beyond a bachelor’s) or a bachelor’s
and at least five years of progressive experience in the field.
b. Persons with exceptional ability in the arts, sciences, or business. 13

3. Employment-based Third Preference (EB-3)

The skilled workers, professionals holding baccalaureate degrees and other workers also
receive 28.6 percent of the yearly worldwide limit, plus any unused Employment First
and Second Preference visas. They must have an approved I-140 petition filed by the

9
See id.
10
See id.
11
INA §203(b)(2)(A).
12
U.S. Department of State, Employment-Based Visas. See
http://travel.state.gov/visa/immigrants/types/types_1323.html
13
See id.

3
 prospective employer. The EB-3 category requires a labor certification that has been
approved by the DOL, or a Schedule A designation (Group I).14 There are three
subcategories:
a. Skilled workers are persons capable of performing a job requiring at least two
years training or experience;
b. Professionals with at least a university bachelor's degree; and
c. Other workers are those persons capable of filling positions requiring less than
two years training or experience. 15

4. Employment-based Fourth Preference (EB-4)

Special Immigrants receive 7.1 percent of the yearly worldwide limit. The EB-4 category
includes religious workers (ministers, professional workers, and other religious workers)
and other special immigrants. All such applicants must be the beneficiary of an approved
I-360, Petition for Special Immigrant, except overseas employees of the U.S.
Government who must use Form DS-1884.
5. Employment-based Fifth Preference (EB-5)
Employment Creation Investors receive 7.1 percent of the yearly worldwide limit. All
applicants must file a Form I-526, Immigrant Petition by Alien Entrepreneur with USCIS.
To qualify, an alien must invest between U.S. $500,000 and $1,000,000, depending on
the employment rate in the geographical area, in a commercial enterprise in the United
States which creates at least 10 new full-time jobs for U.S. citizens, permanent resident
aliens, or other lawful immigrants, not including the investor and his or her family. 16

Please see the U.S. Department of State website relating to Employment-Based Visas for more
information regarding the categories.
Impacts on Immigration Process
What makes the above-mentioned visa allotments so important and what impact do they have on
your clients? For most of the time since October 1991, when the current law (and numerical
system) went into effect, the EB-1 and EB-2 categories most of the time did not reach their per-
country ceiling (or the visa “cap”). Visas for the EB-1 through EB-3 categories have been
impacted by visa retrogression at various times throughout the years.

14
See id.
15
INA §203(b)(3)(A).
16
U.S. Department of State, Employment-Based Visas. See
http://travel.state.gov/visa/immigrants/types/types_1323.html

4
Another consideration is the fact that the United States Citizenship and Immigration Services
(USCIS) has experienced a tremendous slow down in their processing procedure over the past
few years, which has created a backlog of cases in certain categories. As a result, in 2004 the
USCIS notified Congress of its intent to eliminate the backlog by the end of fiscal year 2006.
The attempt to alleviate these backlogs created heavy visa demand in the employment-based
categories.17 Since October 2005, we have seen significant retrogression in the employment-
based categories by the Department of State in several categories. The situation was further
compounded in July 2007 when all the employment-based categories were listed as “current”
only to become suddenly “unavailable” in the August 2007 Visa Bulletin.18 Various
retrogressions have occurred since that time, which have played havoc with the ability for aliens
to obtain their permanent resident status.19

Analysis
"Immigration law is a mystery and a mastery of obfuscation,
and the lawyers who can figure it out are worth their weight in gold."20

What is the best way to guide your client through the complex-and always changing-laws and
regulations that govern aliens wanting to immigrate to the United States? How do you even
begin to determine the best solution or solutions to the problem?
Start with the big picture.
Choosing a solution to your client’s situation often depends on several factors: the employee’s
nonimmigrant status, the employee’s skills, education, his/her country of birth, his/her country of
citizenship, how long the employee has worked in the U.S., the stability of the employer (time in
existence, number of employees, have they had layoffs, do they have the ability to pay the
proffered wage), the processing times of the governmental agencies involved, and immigrant
visa availability.
Gather information.
Take the time to get to know your client and what his or her objectives are for the process.
Determine how familiar your client is with the process and figure out if there are any unanswered
and unasked questions. Even though a corporate client may come to you requesting that a

17
DOS Visa Bulletin No. 76, Vol. VIII, Dec. 2004.
18
DOS Visa Bulletin No. 109, Vol. VIII, Aug. 2007.
19
See DOS Visa Bulletins No. 115, Vol. VIII, Feb. 2008; No. 116, Vol. VIII, Mar. 2008; and No. 117, Vol. VIII,
Apr. 2008.
20
Nurith C. Aizenman, Md. Family Ensnared in Immigration Maze; After Changes in Law, Couple Faces
Deportation, Wash. Post, Apr. 24, 2001, at B1 (quoting INS spokeswoman Karen Kraushaar).

5
Permanent Labor Certification (“PERM”)21 application be filed and you may initially determine
that the employee has the perfect background and credentials for a PERM application, dig a little
deeper. Is it possible that the employee may also qualify for an extraordinary ability alien,
outstanding researcher, or national interest waiver petition? A review of the employee’s resume
shows that he or she has twenty-five publications in top international journals, citations of the
publications have been made by others in the field, the employee is a reviewer for two journals,
is a named inventor on three patents, and the employee often presents his or her research findings
at top international conferences in the field. These credentials are important in determining
whether or not the employee is eligible for one of the higher preference categories.
What is the most important thing to the client? Are attorney’s fees an issue? Is the employer
willing to sponsor the employee? Is the employer willing to pay the costs associated with the
labor certification? Does the individual have multiple family members? What is the status of the
family members? Do they desire to work? Where were they born? Are there children who may
potentially age out? Is the primary beneficiary prepared to stay with the current employer on a
long term basis? Does his or her position require frequent travel? Is the primary beneficiary
prepared and willing to request support letters from others in the field? Does he or she have (or
can they obtain) copies of supporting documentation (papers, conference materials,
memberships, etc.)?
Determine the solution and other considerations
Keep in mind that circumstances can change between the time a petitioner files an employment
based petition and when the beneficiary is finally able to adjust his or her status or immigrate to
the U.S. via consular processing. It is imperative that we develop and revamp all possible tools
to enable our clients to successfully combat potential delays in the process, especially in light of
issues such as visa retrogression, lengthy security checks, and increased scrutiny by the CIS
when cases are processed.
Factors that should be considered include:
1. The American Competitiveness in the Twenty-first Century Act of 2000
(AC21).22
a. Section 104(c) - One-Time Protection of Benefits Under Per Country
Ceiling
b. Section 106 – Special Provisions in Cases of Lengthy Adjudications
2. Recapture of Earlier Priority Dates

21
See 20 CFR Part 656, Employee Benefits, Labor Certification Process for Permanent Employment of Aliens in the
United States. Authority - 8 U.S.C. 1182(a)(5)(A), 1189(p)(1); section 122, Pub. L. 101–649, 109 Stat. 4978; and
Title IV, Pub. L. 105–277, 112 Stat. 2681.
22
Pub. L. No. 106-313, 114 Stat. 1251.

6
 If your client has an approved I-140 that with an earlier priority date in the EB-1,
EB-2, or EB-3 categories, he or she may be entitled to the earlier priority date
when a subsequent immigrant visa petition in any of these categories is submitted,
unless the prior petition has been revoked due to fraud.
For example, take an Indian national, who previously worked for Acme
Corporation. While employed with Acme, a labor certification application was
filed on April 2, 2004. An I-140 petition in the EB-3 category, was filed in late
August of 2007 and approved in October 2007. Due to visa retrogression, the
alien is unable to file his adjustment of status application. In November 2007,
alien moves to Cheatem Corporation. Cheatem files a new labor certification
application in December 2007, followed by a new I-140 petition in the EB-2
category. When the new I-140 petition is filed, the alien can request to be
allowed to maintain the earlier priority date of April 2, 2004 due to the previously
approved I-140 petition. It should be noted that in order to recapture the earlier
priority date, the individual must have an approved I-140.
3. Visa Cross Chargeability
Individuals can only apply for adjustment of status or consular process if their
priority date is current. Individuals are chargeable to the country in which they
were born with limited exceptions. For some fortunate individuals, cross
chargeability provides a means to avoid backlogs created by the cut-off dates of
immigrant visas. 23 In the event your client can be charged to a country with more
favorable visa availability, certain administrative precautions should be taken to
ensure the case is not erroneously rejected by the USCIS.24

For example, husband works as a postdoctoral fellow for a research institution.

He is a Chinese national who decides to file a National Interest Waiver petition.
Under visa retrogression, he would not be eligible to file his I-485 application
based on the current visa bulletin. Suppose, his spouse was born in Germany.
Upon filing the I-140 petition, both the husband and wife will be eligible to file
their I-485 applications based on the wife’s country of birth.
4. Child Status Protection Act of 2002 (CSPSA)
The Act was designed to preserve child status for certain alien children
beneficiaries who may have aged out, particularly due to long delays in USCIS
processing.25

23
INA § 202(a)(2); 22 CFR § 42.12, § 43.12(c).
24
Texas Service Center previously provided guidance on such procedures. AILA InfoNet Doc. No. 05081961
(posted Aug. 19, 2005).
25
Pub. L. No. 107-208 (Aug. 6, 2002).

7
 5. Mandamus Actions
While a mandamus action cannot compel a favorable decision from the
government, it can sometimes be effective way to obtain a relatively quick
remedy to governmental delays and failure to act where there is a duty to do so.26

6. Portability of Certain Green Card Cases in Final-Stage of Processing (I-485)

Section 106(c) of AC21 permits employment-based adjustment of status
applicants whose I-485 applications have been pending for more than 180 days
and which remain unadjudicated, to change employers as long as they maintain
the same or a similar occupational classification.27 Form I-140 Petition Must be
Approved Prior to a Favorable Determination of a §106(c) AC21 portability
request.28
Other Reasons to Consider Higher Preference Categories

• Faster Method
2 steps/1 agency (PERM – 3 steps/2 agencies)

• More Successful Method

Approval rating on EAA/OR/NIW cases can be high if applicants meet the criteria
(PERM – unknown factors may impact ability to file, e.g. downward economy,
limitations on changes in position, visa retrogression)

• Lower Cost Factor

Total attorney fees, filing fees and expenses can be lower than PERM (e.g. no
advertising costs)

• Effective Recruitment Tool for US employers

Foreign national applicants are very knowledgeable – they want to immigrate as
quickly as possible and obtain status approval in highest preference category.
Companies that support sponsorship of their foreign workers for immigration
purposes will attract best/brightest foreign nationals.

26
Mandamus Actions: Avoiding Dismissal and Proving the Case, AILF Practice Advisory (August 15, 2005).
27
AC21, supra note 18.
28
See USIS Memorandum, Donald Neufeld, “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.” (May 30, 2008)

8
Common Problems

As previously stated, the potential candidate’s situation needs to be fully reviewed to determine
what, if any, impact certain things will have on their immigration process. For example, has
something happened in their past that makes then ineligible to adjust their status? The green card
process may reveal some unexpected issues that the individual is either hiding or more often then
not, did not realize were potential issues. Perhaps the green card should not be applied for
because the employer has sustained a substantial loss for the last five years and cannot pay the
proffered wage as determined by the Department of Labor. Did the employee have a situation in
their past that caused them to fall out of status and never disclosed it to their employer?
Applying for permanent resident status gives the USCIS an opportunity to examine not only the
employee’s, but the employer’s entire immigration history, from the time the employee first
entered the United States to the present.
In this section, we will examine some of the most common types of issues that should be
considered:

Hypo 1: It is early September and your client approaches you with a request for assistance with
his employee’s green card application. Rodrigo, who was born in Mexico, graduated from a U.S.
university and is currently on Optional Practical Training that will expire on February 17, 2009.
Your client’s business is subject to the H-1B cap. They filed a H-1B petition for him on April 1,
2008; unfortunately, the petition was not selected under the lottery system. Rodrigo has a
Bachelor’s degree in Computer Engineering and two years of progressive work experience, not
gained with your client’s company, in the field.
Hypo 2: Leonora, who was born in Kazakhstan, applied for a green card as the unmarried child
of a U.S. permanent resident. She currently works for an employer as an L-1 multinational
manager. Her employer wishes to file for her green card, but she is concerned that it will impact
her existing family based case. Will it have an impact?
Hypo 3: Sudarshan, an Indian national, works as a Computer Programmer at Acme International.
He currently works pursuant to his H-1B and has held H-1B status continuously since July 30,
2003. No PERM application or immigrant petition has been filed on his behalf, however, Acme
International has carried out recruitment for his position over the past year and no US workers
have qualified for the position to date. Acme plans to file a labor certification for this individual.
How can he stay in the U.S. and employed by Acme beyond July 30, 2009?
Hypo 4: Acme International hires Andrew, a Chinese national, to work pursuant to his OPT as a
Design Engineer this month. He has just completed his Ph.D. requirements. His OPT expires
January 2009. How can he continue to work for Acme between January 2009 and October 1,
2009. How can he obtain his green card?
Hypo 5: Wei, who was born in China, is currently in the U.S. in H-1B status. He will complete 6
years in H-1B status in 8 months. Wei’s wife, Meha, is a citizen of India, but was born in Dubai.
She is in the U.S. in H-4 status. Wei’s employer has experienced layoffs over the last few months
and is not in a position to file a PERM application on Wei’s behalf. Wei has a master’s degree in
9
Chemistry, has numerous publications, citations, and awards for his research work in the field.
He works as a researcher for his employer, a pharmaceutical company. Can Wei begin the
permanent residency process, and if so, what can he do?
Hypo 6: Gustav, a German national, is currently in the U.S. in H-1B status and has been for 5
years. He is currently employed as a software engineer. Gustav has a bachelor’s degree plus 5
years of work experience, 3 obtained while at his current employer. When Gustav first entered
the U.S., he was sponsored for lawful permanent residency by Data Corporation. His labor
certification and I-140 were both approved. Gustav left Data Corporation before his I-485 could
be filed. His current employer, Computer Company, is agreeable to sponsoring Gustav for lawful
permanent residency in the EB-3 category. Can the priority date be recaptured for his new filing?
What can be done so that Gustav does not max out in H-1B status and must return home?
Hypo 7: Oleg, a Russian national, is currently in the U.S. in O-1 status. He works for a research
foundation as a scientist. Oleg has a Ph.D. degree, years of experience in the field, numerous
publications, patents, citations, and awards. Unfortunately the research foundation will not
sponsor Oleg for permanent residency status. What can Oleg do to become a lawful permanent
resident of the U.S.?

10
 PowerPoint for:
Strategic Planning Using Immigrant Visas
Presented by
Mona Gupta and Judy Lee

Analyzing Options for Employment Based Immigrant Visa Processing

• What is the individual’s current non-immigrant visa status?

• How much time does he have left in that status?
• Could he possibly convert to another non-immigrant visa status if the need arose?
• Is the current visa status dual intent?
• Is the individual’s employer willing to sponsor him for permanent residency?
• Is the position a permanent one?
• Is the position a full-time position?
• Where was the individual born?
• Is the individual married?
• If so, where was the spouse born?
• Are there children?
• If so, what are their ages and where were they born?
• Has the individual or his spouse ever been sponsored for lawful permanent
residency in the past?
• Does the individual have a previously approved I-140?
• If yes, what is the priority date?
• Was an I-485 application ever approved on his behalf? If so, where was it filed
and what is the status of the application?
• What is the individual’s educational background and previous work experience?
Ask to review detailed curriculum vitae or resume.
• Ask for a description of the position the individual currently holds and salary
information.
• Is the wage going to be an issue?
• How stable is the employer? How many employees do they have? What is their
layoff history? Do they have the ability to pay the proffered wage?
• Is there immigrant visa availability? If not, how long is the individual likely to
wait?
• Processing times
• Did the individual enter legally? Has he maintained legal status?
• If not, is the individual 245(i) or 245(k) eligible?
• Are there any possible ineligibility factors? (e.g. criminal history, immigration
history, false claim to US citizenship, affiliations with questionable organizations,
etc.)
Hypo 1:

Leonora, who was born in Kazakhstan, applied for a green card as the unmarried child of
a U.S. permanent resident. She currently works for an employer as an L-1 multinational
manager. Her employer wishes to file for her green card, but she is concerned that it will
impact her existing case. Will it have an impact?

Hypo 2:

Sudarshan, who was born in India, works as a Computer Programmer at Acme

International. He currently works pursuant to his H-1B and has held H-1B status
continuously since July 30, 2003. No PERM application or immigrant visa petition has
been filed on his behalf; however, Acme International has carried out recruitment for his
position over the past year and no US workers have qualified for the position to date.
Acme plans to file a labor certification for this individual.

How can Sudarshan stay in the U.S. and be employed by Acme beyond July 30, 2009?

Hypo 3:

Acme International hires Andrew, who was born in China, to work pursuant to his OPT
as a Design Engineer this month. He has just completed his Ph.D. requirements. His
OPT expires January 2009. How can he continue to work for Acme after January 2009?
How can he obtain his green card?

Hypo 4:

Wei, who was born in China, is currently in the U.S. in H-1B status. He will complete 6
years in H-1B status in 8 months. Wei’s wife, Meha, is a citizen of India, but was born in
Dubai. She is in the U.S. in H-4 status. Wei’s employer has experienced layoffs over the
last few months and is not in a position to file a PERM application on Wei’s behalf. Wei
has a master’s degree in Chemistry, has numerous publications, citations, and awards for
his research work in the field. He works as a researcher for his employer, a
pharmaceutical company. Can Wei begin the permanent residency process, and if so,
what can he do?

Hypo 5:

Gustav, who was born in Germany, is currently in the U.S. in H-1B status and has been
for 5 years. He is currently employed as a software engineer. Gustav has a bachelor’s
degree plus 5 years of work experience, 3 obtained while at his current employer. When
Gustav first entered the U.S., he was sponsored for lawful permanent residency by Data
Corporation. His labor certification and I-140 were both approved. Gustav left Data
Corporation before his I-485 could be filed. His current employer, Computer Company,
is agreeable to sponsoring Gustav for lawful permanent residency in the EB-3 category.
Can the priority date be recaptured for his new filing? What can be done so that Gustav
does not max out in H-1B status and must return home?

Hypo 6:

Oleg, who was born in Russia, is currently in the U.S. in O-1 status. He works for a
research foundation as a scientist. Oleg has a Ph.D. degree, years of experience in the
field, numerous publications, patents, citations, and awards. Unfortunately the research
foundation will not sponsor Oleg for permanent residency status. What can Oleg do to
become a lawful permanent resident of the U.S.?
Employment and Investment

1
Picking a € EB-1-Aliens of Extraordinary
Ability,
classification Outstanding Researchers
or Professors,
Multinational Executives
and Managers
€ EB-2- National Interest
Waivers
PERM-Advanced Degree
or Bachelor’s plus 5 yrs
progressive experience
Persons w/exceptional
/ p
ability-arts, science,
business (Schedule A,
Group II)

€ EB-3-PERM-Skilled
workers, Professionals
holding BA, other
workers
Schedule A-Group 1-RN’s
physical therapists

€ EB-4-Special Immigrants-
religious workers and
other special
i iimmigrants
i
€ EB-5-Employment
Creation Investors

2
 • Country of
birth/citizenship/NIV
Employee status
• Education/skills/work
experience

Employer • Stability/#of employees

• Layoffs/ability to pay

Other • Processing times/Visa

availability

Factors • Other NIV “bridge”

options

€ Asking the right questions is critical

€ Don’t assume the client knows what visa

she should apply for
€ Don’t be afraid to ask the tough
questions
€ Be thorough in your questioning

3
€ What is the current € Do you have a willing
non immigrant status?
non-immigrant employer?
€ How much time is left € Is the position
with that status? permanent?
€ Do you have a € Is the position full-time?
“bridge” NIV option if € Where was the
needed? individual born?
€ Is the current visa dual Country of citizenship?
intent? € Is the individual
married? If so where
was spouse born?

€ Are there children? € If so, priority date?

What age? € W I-485
Was I 485 ever fil
filed?
d?
€ Has the individual Where? Status of
ever been 485?
sponsored for LPR € What is the
status? individual’s
€ How about the educational
spouse? background? Work
€ Is there a previously experience?
filed I-140? € Do you have
detailed CV?

4
€ Ask for a description of € Ability to pay proffered
the position of wage
currently held position € Is there visa
and salary info availability? If not, how
€ Is the wage going to long is the wait?
be an issue? € Processing times
€ How stable is the € Did the individual
employer?(#
l ?(# off enter legally? Has he
employees,layoff maintained legal
history) status? 245(i)or 245(k)
€

Ci i l
Criminal
History

Affiliations
Immigration
w/question Inadmissibility History
able org.

False
Claim
to USC

5
Working Hypotheticals

Leonora, who was born in Kazakhstan,

applied for a green card as the
unmarried child of a U.S. permanent
resident. She currently works for an
employer as an L-1 multinational
manager. Her employer wishes to file for
her green card, but she is concerned
that it will impact her existing case. Will it
have an impact?

6
Sudarshan, who was born in India, works as a
Computer Programmer at Acme International
International. He
currently works pursuant to his H-1B and has held H-1B
status continuously since July 30, 2003. No PERM
application or immigrant visa petition has been filed
on his behalf; however, Acme International has
carried out recruitment for his position over the past
year and no US workers have qualified for the position
to date. Acme plans to file a labor certification for
this individual.
individual

How can Sudarshan stay in the U.S. and be

employed by Acme beyond July 30, 2009?

Acme International hires Andrew, who

was born in China, to work pursuant to
his OPT as a Design Engineer this month.
He has just completed his Ph.D.
requirements. His OPT expires January
2009. How can he continue to work for
Acme after January 2009? How can he
obtain his green card?

7
Wei, who was born in China, is currently in the
U S in
U.S. i H
H-1B
1B status.
t t H
He will
ill complete
l t 6 years iin H
H-
1B status in 8 months. Wei’s wife, Meha, is a
citizen of India, but was born in Dubai. She is in
the U.S. in H-4 status. Wei’s employer has
experienced layoffs over the last few months
and is not in a position to file a PERM
application on Wei’s behalf. Wei has a master’s
degree in Chemistry
Chemistry, has numerous
publications, citations, and awards for his
research work in the field. He works as a
researcher for his employer, a pharmaceutical
company. Can Wei begin the permanent
residency process, and if so, what can he do?

Gustav, who was born in Germany, is currently in the

U S in H
U.S. H-1B
1B status and has been for 5 years
years. He is
currently employed as a software engineer. Gustav
has a bachelor’s degree plus 5 years of work
experience, 3 obtained while at his current employer.
When Gustav first entered the U.S., he was sponsored
for lawful permanent residency by Data Corporation.
His labor certification and I-140 were both approved.
Gustav left Data Corporation before his I-485 could
be filed.
filed His current employer
employer, Computer Company
Company, is
agreeable to sponsoring Gustav for lawful permanent
residency in the EB-3 category. Can the priority date
be recaptured for his new filing? What can be done
so that Gustav does not max out in H-1B status and
must return home?

8
Oleg,g, who was born in Russia,, is currently
y in
the U.S. in O-1 status. He works for a
research foundation as a scientist. Oleg has
a Ph.D. degree, years of experience in the
field, numerous publications, patents,
citations, and awards. Unfortunately the
research foundation
f i will
i not sponsor Oleg
for permanent residency status. What can
Oleg do to become a lawful permanent
resident of the U.S.?

9
 TAB 16
A Primer on PERM
 The University of Texas School of Law

Presented:
The University of Texas School of Law
32ND ANNUAL CONFERENCE ON
IMMIGRATION & NATIONALITY LAW

October 22-24, 2008

San Antonio, Texas

LABOR CERTIFICATION:
THE LAW

Eugene J. Flynn

Author contact information:

Eugene J. Flynn
EUGENE J. FLYNN, P.C.
Dallas, Texas

ejflynnlaw@gmail.com
214-821-1661

Continuing Legal Education • 512-475-6700 • www.utcle.org

I. Introduction

The statutory basis for the Alien Labor Certification Procedure is found in § 212(a)(5)(A)
of the Immigration and Nationality Act [INA], 8 USC § 1182(a)(5)(A). The regulations are
found in 20 C.F.R. part 656.

The statue provides that various classes of aliens shall be ineligible to receive visas and
shall be excluded from admission to the United States. One of those classes is stated as follows:

212(a)(5)(A)
(i) In general.–
Any alien who seeks to enter the United States for the purpose of performing
skilled or unskilled labor is inadmissible, unless the Secretary of Labor has
determined and certified to the Secretary of State and the Attorney General that–
(I) there are not sufficient workers who are able, willing, qualified (or
equally qualified in the case of an alien described in clause (ii)) and
available at the time of application for a visa and admission to the United
States and at the place where the alien is to perform such skilled or
unskilled labor, and
(II) the employment of such alien will not adversely affect the wages and
working conditions of workers in the United States similarly employed.
(ii) Certain aliens subject to special rule.–
For purposes of clause (i)(I), an alien described in this clause is an alien who–
(I) is a member of the teaching profession, or
(II) has exceptional ability in the sciences or the arts.

The statute specifically references in clause (D) the categories of immigrant to whom this
ground of exclusion is to be applied as follows:

(D) Application of grounds.–

The grounds of inadmissibility of aliens under subparagraphs (A) and (B) shall
apply to immigrants seeking admission or adjustment of status under paragraph
(2) or (3) of section 203(b).

INA § 212(a)(5)(D)

The referenced subparagraph (B) deals with certain physicians and is beyond the scope of this
article.

As can be readily seen from the statute, only Employment Based (INA 203(b)) 2nd and
3rd preference aliens need to obtain labor certification. Individuals entering the United Sates as
special immigrants, as immediate relatives, under the Family Preferences, under the Employment
Based 1st, 4th, or 5th preferences, those granted asylum, cancellation of removal, registry or
those who win the diversity lottery, need not obtain a labor certification.

The underlying purpose of the statue, as determined by the courts, is an accommodation

between the legitimate needs of the employer and the protection of the U.S. labor. See Pesikoof

1
v. Secretary of Labor, 501 F. 2d 757, 756 (D.C. Cir. 1984), cert. denied. 419 U.S. 1038 (1974)
and Digitab, Inc. v Secretary of Labor, 495 F.2d 323, 366 (1st Cir. 1974 ), cert. denied. 419 U.S.
840 (1974).

II. "Schedule A" Occupations

As you approach this tedious process of labor certification you may find the Department
of Labor (DOL) has actually certified your client in advance. The DOL has a list of such
categories of individuals designated as "Schedule A" which is found in 20 C.F.R. § 656.5.

Schedule A occupations are now only two groups. The first group includes professional
nurses and physical therapists. The second group is made up of aliens of exceptional ability in
the arts and sciences now including the performing arts, if the performing artist is one “whose
work during the past 12 months did require, and whose intended work in the United States will
require, exceptional ability.” 20 C.F.R. § 656.5(b)(2). See 20 C.F.R.§ 656.15 for the
documentation
requirements for these groups.

Formally physicians (or surgeons) were included in Schedule A. The Labor Department
removed them from Schedule A. See 52 Fed. Reg. 50,593 (June 2, 1987). Managerial or
executive intra-company transferees were removed 56 Fed. Reg. 54,920 (Oct. 23, 1991, effective,
Nov. 22, 1991) and are now included under the Employment Based First Preference. Religious
workers were also in Schedule A but were also removed 56 Fed. Reg. 54,920 (Oct. 23, 1991,
effective, Nov. 22, 1991) and are now included under the Employment Based 4th Preference.

To achieve a Schedule A certification one must prepare form ETA Form 9089 with
supporting documentation attached. Instead of submitting the form to the Department of Labor,
you file it with form I-140 at the United States Citizenship and Immigration Services (USCIS)
Service Center having jurisdiction over the place of intended employment. Note that the proper
location for filing any particular form with the USCIS is constantly changing. It behooves one to
check the USCIS web site when you are ready to file any form.

One should thoroughly review all of the various preference categories before settling for
the often time consuming and mine field filled labyrinth of the labor certification process which
could be a road to ruin.

III. The Basic Labor Certification Application Process

A. General Documentation

For those aliens who do not have the benefit of being pre-certified, one has to follow the
basic labor certification application process. These requests are filed pursuant to 20 C.F.R.
§ 656.17. Under the procedure know as the Program Electronic Review Manager (PERM) the
employer or its attorney, files the application for alien employment certification with the U.S.
Department of Labor, either online at http://www.plc.doleta.gov/eta_start.cfm or by mail to the Atlanta
National Processing Center. 73 FR 11954 (March 5, 2008). Mailing can create problems as

2
noted in a number of decisions of the Board of Alien Labor Certification Appeals (BALCA)
summarized in Appendix B to this paper.

The application is currently a ten (10) page form and may be found at
http://www.foreignlaborcert.doleta.gov/pdf/9089form.pdf. The instructions are eleven pages long and
may be found at http://www.foreignlaborcert.doleta.gov/pdf/9089inst.pdf.

Note that the form my soon be replaced with a new version which is seventeen (17). The
link to the draft of t he new version may be found at
http://www.reginfo.gov/public/do/PRAViewIC?ref_nbr=200707-1205-012&icID=13315. There is a typo in the
link. When asked what program you wish to use to open the file select WORD or OpenOffice
Writer (if you use that). As of this writing this draft form is not a valid form and cannot be used.
The proposed instructions for the new form (24 pages) are available at the same location.

The current form includes an offer of employment which describes the job being offered
to the alien. It also includes the alien’s employment history wherein it must be demonstrated that
he he meets the experience requirements of the job offer. If mailed, the form is signed by the
employer, the alien and the attorney (if any). If sent electronically the form is to be signed after
certification. 22 C.F.R. § 656.17(a).

In signing the form the employer declares under penalty of perjury 18 U.S.C. §§ 2 and
1001 and under other statutes, 18 U.S.C. §§ 1546 and 1621, that

1. The offered wage equals or exceed the prevailing wage and he will pay at least
the prevailing wage.
2. The wage is not based on commissions, bonuses or other incentives, unless the
employer guarantees a wage paid on a weekly, bi-weekly, or monthly basis that
equals or exceeds the prevailing wage.
3. The employer has enough funds available to pay the wage or salary offered the
alien.
4. The employer will be able to place the alien on the payroll on or before the date of
the alien’s proposed entrance into the United States.
5.. The job opportunity does not involve unlawful discrimination by race, creed,
color, national origin, age, sex, religion, handicap, or citizenship.
6. The job opportunity is not:
a. Vacant because the former occupant is on strike or is being locked out in
the course of a labor dispute involving a work stoppage; or
b. At issue in a labor dispute involving a work stoppage.
7. The job opportunity’s terms, conditions, and occupational environment are not
contrary to Federal, state or local law.
8. The job opportunity has been and is clearly open to any U.S. worker.
9. The U.S. workers who applied for the job opportunity were rejected for lawful
job-related reasons.
10. The job opportunity is for full-time, permanent employment for an employer other
than the alien.

3
 The alien also declares under penalty of perjury that the sections relating to him or her are
true and correct. The attorney who has prepared the form attests the he or she has prepared the
form at the request of the employer and that the statements are true and correct to the best of his
or her knowledge.

B. Prior Recruitment

In order to file under the PERM system, the employer must have conducted prior
recruitment and be able to document that the labor market was adequately tested during the six
months previous to filing the application. See 20 C.F.R. § 656.17(e).

Back in the Pre-PERM days the employer submitted the documentation with the
application. Now it simply must maintain the documentation for five (5) years after the date of
filing. See 20 C.F.R. § 656.10(f). The Certifying Officer (CO) can request any or all of the
documentation if the case is selected for an audit. See 20 C.F.R. § 656.20. See also 20 C.F.R. §
656.17(e)(1); 20 C.F.R. § 656.17(l) 20 C.F.R. § 656.19(b).

It behooves the attorney to maintain copies of such documentation and not submit any
such application without first seeing the supporting evidence.

Most of the standards developed over the years remain in effect under the PERM system.
It is primarily procedure for filing which has changed.

C. Unduly Restrictive Requirements

A job offer must not include unduly restrictive requirements (including a requirement for
any language other that English), unless adequately documented that such arises from business
necessity. Unless so documented, the requirements of the job must be those that are normally
required for that type of job in the U.S., and as defined in O*NET. O*NET job zones can be
found at http://www.flcdatacenter.com/JobZone.aspx and at http://online.onetcenter.org. See also 20 C.F.R.
§ 656.17(h).

If the job involves a combination of occupations, the employer must document that it has,
in the normal course of events, employed persons for that combined job, that workers normally
perform this combination of occupations in the area of intended employment, and/or that such a
combination is based on business necessity. See 20 C.F.R. § 656.17(h)(3). Having a combination
of occupations is almost a guarantee of an audit.

D. Posting Requirement/Notice to Union

It is required that notice of the filing of the Labor Certification be provided "[t]o the
bargaining representative(s) (if any) of the employer's employees in the occupational
classification for which certification of the job opportunity is sought in the employer's location(s)
in the area of intended employment." 20 C.F.R. § 656.10(d)(1)(i).

4
 If there is no bargaining representative then the employer must document that it has
posted a notice of the job opportunity at its place of business. 20 C.F.R. § 656.10(d)(1)(ii). The
notice must contain the information required for advertisements listed in 20 C.F.R. § 656.17(f)
and must also state the rate of pay. 20 C.F.R. § 656.10(d)(4). It must also provide the address
(currently the address of the Atlanta National Processing Center) of the Certifying Officer of the
Department of Labor. It must state that “the notice is being provided as a result of the filing of
an application for permanent alien labor certification for the relevant job opportunity” and also
state that “any person may provide documentary evidence bearing on the application to” the
Certifying Officer. 20 C.F.R. § 656.10(d)(3).

The notice is to be posted by the employer for at least ten (10) consecutive business days.
It must be clearly visible and unobstructed while posted and must be posted in a conspicuous
place where the employer's U.S. workers can readily read the posted notice on the way to or
from work. 20 C.F.R. § 656.10(d)(1)(ii).

Under the new PERM regulations the employer must also “publish the notice in any and
all in-house media, whether electronic or printed, in accordance with the normal procedures used
for the recruitment of similar positions in the employer’s organization.” 20 C.F.R.
§ 656.10(d)(ii).

E. Actual Minimum Requirements

The employer must document that the requirements for the job opportunity represent the
employer's actual minimum requirements and the employer has not hired workers with less
training or experience for a job similar to that involved in the job opportunity or that it is not
feasible to hire workers with less training or experience than that required by the employer's job
offer. 20 C.F.R. § 656.17(i).

F. Rejection of U.S. Workers

If U.S. workers have applied for the job opportunity, the employer must document in its
recruitment report that they were rejected solely for lawfully job-related reasons. See 20 C.F.R.
§ 656.17(g).

G. Date of Acceptance

“Non-electronically filed applications accepted for processing shall be date stamped.

Electronically filed applications will be considered filed when submitted.” 20 C.F.R. § 656.17(c).
If the Labor Certification is ultimately approved, such date will be the alien’s “priority date.”
Priority Dates are discussed in a other presentations at this conference.

H. Determination of the Prevailing Wage

Under PERM procedures, the Prevailing Wage must first be determined before the
application is filed. The State Workforce Agencies (SWAs) [in Texas it is the Texas Workforce
Commission] currently have jurisdiction over the determination of the prevailing wage. The

5
DOL has published guidelines for determining the prevailing wage.
http://www.foreignlaborcert.doleta.gov/pdf/Policy_Nonag_Progs.pdf. These should be thoroughly reviewed
so that the attorney will be able to explain to the employer why they are being assigned the wage
level that the SWA selects.

If the job opportunity is subject to Davis-Bacon Act or the McNamara-O'Hara Service

Contract Act, the employer may insist that the rate required under either Act be used for the
prevailing wage. See 20 C.F.R. § 656.40(b)(4).

If the job opportunity is covered under union contract, negotiated at arms-length, then the
wage rate set forth in such a contract shall be the prevailing wage. See 20 C.F.R. § 656.40(b)(1).

In most cases the prevailing wage is the arithmetic mean of the wages of workers
similarly employed in the area of intended employment. See 20 C.F.R. §656.40(b)(2). Special
rules apply to researchers employed by colleges and universities, college and university operated
federally funded research and development centers and certain federal agencies. American
Competitiveness and Workforce Improvement Act of 1998 (ACWIA) (Title IV of Pub. L. 105-
277, Oct. 21, 1998; 112 Stat. 2681).

The SWA will use the wage data complied by the Bureau of Labor
Statistics/Occupational Employment Statistics (BLS/OES). You may access this same data
http://www.flcdatacenter.com.

If the employer disagrees with the SWAs determination the employer may submit to the
SWA other surveys that conform with the rules of the Department of Labor but show a different
prevailing wage. See 20 C.F.R. § 656.40(g).

I. Job Order and Advertising

The PERM procedure requires the employer or the attorney to prepare and processes a
job service order with the SWA. In Texas that is done at http://workintexas.com or
http://www.twc.state.tx.us/jobs/job.html

The job order must remain open with the job service for a period of 30 days. Links to
résumés of potentially qualified U.S. workers will be posted to the WorkinTexas web site.

For non-professional jobs advertisements must be placed in a newspaper of general

circulation for two Sundays. They may or may not be consecutive Sundays. See 20 C.F.R.
§656.17(e)(2).

For professional occupations (as defined by the Department of Labor See 69 Fed. Reg.
77377-77384), in addition to the two Sunday newspaper ads, the SWA job order and the internal
postings, three additional forms of recruitment, from a list of ten types of recruitment must have
taken place. The ten types are: Job Fairs, Employer's Website, Other Internet Ads, On-Campus
Recruiting, Trade or Professional Organizations, Private Employment Firms, Employee Referral
Programs with Incentives, Campus Placement Offices, Local and Ethnic Newspapers and Radio
and Television Ads. See 20 C.F.R. §656.17(e)(1)(ii).

6
 Also, if the job “requires experience and an advanced degree, and a professional journal
normally would be used to advertise the job opportunity, the employer may, in lieu of one of the
Sunday newspaper advertisements, place an advertisement in the professional journal most likely
to bring responses from able, willing, qualified, and available U.S. workers.” See 20 C.F.R.
§656.17(e)(1)(ii).

The ads and the postings must: (1) contain the name of the employer; (2) direct applicants
to report or send résumés, as appropriate for the occupation, to the employer; (3) provide a
description of the vacancy specific enough to apprise the U.S. workers of the job opportunity for
which certification is sought; (4) indicate the geographic area of employment with enough
specificity to apprise applicants of any travel requirements and where applicants will likely have
to reside to perform the job opportunity; (5) if a wage or wage range is placed in the ads it must
not be a wage rate lower than the prevailing wage rate (the wage need not be placed in the ads
but must appear on the internal posting); (6) not contain any job requirements or duties which
exceed the job requirements or duties listed on the ETA Form 9089; and (7) not contain wages or
terms and conditions of employment that are less favorable than those offered to the alien. See 20
C.F.R. §656.17(f).

As the employer may very well be audited (see infra) the employer must interview every
authorized U.S. worker (if any) who applies for the job (unless clearly not qualified at all based
on any résumé submitted). The employer must determine, not why the alien is more qualified for
the job, because he or she must always be a little more qualified than the minimum requirements
for the job (or else DOL says you are tailoring the job for the alien), but why the U.S. workers
are not qualified for the job at all or are not otherwise able, willing and available. See 20 C.F.R.
§656.2(c)(1)(i).

The employer must prepare and retain a recruitment report signed by the employer or the
employer's representative describing the recruitment steps undertaken and the results achieved,
the number of hires, and, if applicable, the number of U.S. workers rejected, categorized by the
lawful job related reasons for such rejections. All résumés or applications, sorted by the reasons
the workers were rejected, must be retained by the employer for a period of five years. . See 20
C.F.R. §656.17(g).

J. Transmittal to Labor Department

After the employer has completed the recruitment report the employer or the attorney can
finally submit the form 9089 to the Department of Labor.

IV. Determinations by the Certifying Officer

After reviewing the form (or in the case of an audit also the documentation submitted),
the Certifying Officer (CO) generally makes a determination to either grant or deny the labor
certification. See 20 C.F.R. §656.24.

7
 A. Compliance with the Regulations

The Certifying Officer must find that the employer has met the requirements of 20 C.F.R.
part 656 in order to grant the labor certification. See 20 C.F.R. §656.24(b)(1).

B. Availability

The Certifying Officer may deny a labor certification where it is found that there is at
least one United States worker who is able, willing, qualified, and available for, and at the place
of, the job opportunity. See 20 C.F.R. §656.24(b)(2).

Under the PERM regulation the “Certifying Officer must consider a U.S. worker able and
qualified for the job opportunity if the worker, by education, training, experience, or a
combination thereof, is able to perform in the normally accepted manner the duties involved in
the occupation as customarily performed by other U.S. workers similarly employed. For the
purposes of this paragraph (b)(2)(i), a U.S. worker is able and qualified for the job opportunity if
the worker can acquire the skills necessary to perform the duties involved in the occupation
during a reasonable period of on-the-job training.” 20 C.F.R. §656.24(b)(2)(i).

However, if the job application involves an opportunity for a college or university

teacher, the U.S. worker must be at least as qualified as the alien. See 20 C.F.R.
§656.24(b)(2)(ii).

C. Adverse Affect

Another ground for denying a labor certification is that the employment of the alien
would have an adverse affect upon the wages and working conditions of U.S. workers similarly
employed. In making this particular determination, the Certifying Officer considers things such
as labor market information, special circumstances of the industry, organization and/or
occupation, the prevailing wage in the area of intended employment, and prevailing working
conditions, such as hours, in the occupation. See 20 C.F.R. §656.24(b)(3).

V. Audits

Rather than being approved or denied, an application may be selected for an audit either
randomly or picked on the basis of “selection criteria.“ See 20 C.F.R. §656.17(b)(3).
Unfortunately the “selection criteria” is not revealed in the regulations.

If an application is selected for audit, the Certifying Officer shall issue an audit letter
“The audit letter will (1) State the documentation that must be submitted by the employer; (2)
Specify a date, 30 days from the date of the audit letter, by which the required documentation
must be submitted; and (3) Advise that if the required documentation has not been sent by the
date specified the application will be denied.” . See 20 C.F.R. §656.20(a).

8
 Failure to provide requested documentation will constitute a failure to exhaust
administrative remedies making further administrative review unavailable. See 20 C.F.R.
§656.20(a)(3).

Even if the application has not been selected for a formal audit the Certifying Officer
may still request “supplemental information and/or documentation or require the employer to
conduct supervised recruitment.” See 20 C.F.R. §656.20(d).

If you have required your client to give you the recruitment report and the needed
documentation before filing the labor certification, you will be able to immediately respond to an
audit request. Those employers who take the entire 30 days to respond or perhaps get the one
time 30 day extension the Certifying Officer may grant (See C.F.R. §656.20(c)) may very well
be at a disadvantage, as suspicious Labor Department employees may feel that such an employer
didn’t really conduct recruitment and was only now thinking of reasons for rejecting U.S. worker
applicants.

VI. Supervised Recruitment.

The ability of the Certifying Officer to require post-filing supervised recruitment is quite
broad. The CO must simply deem it appropriate. See C.F.R. §656.21(a).

Supervised recruitment is similar to the old pre-PERM labor certification procedure.

Under supervised recruitment if the Certifying Officer determined that the job is to be advertised
in a newspaper of general circulation then it must be published for 3 consecutive days, one of
which must be a Sunday. See C.F.R. §656.21(b).

The advertisement must be approved in advance by the Certifying Officer and the
Certifying Officer will direct where the advertisement is to be placed. See 20 C..F.R. §656.21(b).

In addition to the advertisement, the Certifying Officer may require the employer to
recruit U.S. workers from “other appropriate sources.” See 20 C.F.R. §656.21(b).

VII. Revocation of approved labor certifications.

Certifying Officers now have the authority to revoke an approved labor certification at
any time if he/she finds the certification was not justified. See 20 C.F.R. §656.32(a).

The unlimited ability of a Certifying Officer to revoke a labor certification without any
time limit is quite problematic and will be subject to litigation.

VIII. Review by the Board of Alien Labor Certification Appeals

A. Request for Review

When the labor certification is denied or revoke the employer may avail itself of review
by the Board of Alien Labor Certification Appeals (BALCA).

9
 The request for review must be in writing and mailed to the certifying officer within 30
days of the date of determination. The request must clearly identify the particular labor
certification determination from which review is sought, and set forth particular grounds for the
request. It must also include a copy of the final determination. See 20 C.F.R. §656.26(a)(1).

Upon receipt of a request for review, the Certifying Officer immediately assembles the
indexed appeal file. Such a file is in chronological order; has an index on top, followed by the
most recent document, and consecutively numbered pages. The Certifying Officer then sends
the appeal file to the BALCA in Washington, D.C. A copy of the appeal file is sent to the
employer. See C.F.R. §656.26(b)(3).

The employer has the right to furnish, or suggest directly to the BALCA, the addition of
any documentation, which is not in the appeal file, but which was submitted prior to the issuance
of the final determination by the Certifying Officer. Such should be submitted in writing with a
copy to the Associate Solicitor for Employment and Training Legal Services of the U.S.
Department of Labor. See 20 C.F.R. §656.26(b)(3).

The BALCA then affords all parties, including the Solicitor, 30 days to submit or decline
to submit any appropriate statement of position or legal brief. See 20 C.F.R. §656.27(b). In
addition the BALCA has added an step before the briefing schedule. In roughly May 2007 the
BALCA began requiring the Employer to sent back a Statement of Intent to Proceed within 30
days of the order by the BALCA. If no response was received the case was dismissed.
Numerous cases have been since dismissed on this basis. See Appendix B.

The BALCA reviews the denial of the labor certification on the basis of the record upon
which the decision was made, the request for review and any legal briefs submitted. They may
affirm the denial or revocation of the labor certification, direct the Certifying Officer to grant the
certification or overrule the revocation, or direct that a hearing be held on the case. See 20 C.F.R.
§656.27(c).

While the BALCA not longer has authority to remand cases as it did pre-PERM it has
taken upon itself the authority to return cases to the certifying officer for further review.
HealthAmerica, 2006-PER-00001 (July 18, 2006) (en banc).

The BALCA notifies the employer, the alien, the Certifying Officer, and the Solicitor of
the determination and returns the record to the Certifying Officer, unless the case has been set for
a hearing. See 20 C.F.R. §656.27(d).

IX. Judicial Review

The courts have continued to hold that a right to judicial review of a denial by BALCA
still exists. Such review is on the administrative record only. See Reddy, Inc. v. Dept. of Labor,
492 F.2d 538 (5th Cir. 1974); Secretary of Labor v. Farino, 490 F.2d 885 (7th Cir. 1973);
Gladysz v. Donovan, 595 F. Supp. 50 (N.D. Ill. 1984); Sieminski v. Donovan, 589 F. Supp. 790
(N.D. Ill. 1984).

10
X. Validity of the Labor Certification

A labor certification once approved expires if not filed in support of a Form I-140
petition with the Department of Homeland Security within 180 calendar days of the date the
Department of Labor granted the certification. See 20 C.F.R. §656.30(b)(1). In the case of
Schedule A, it is valid "only for the occupation set forth in the [application] throughout the U.S.
unless a geographic limit is placed in certification." See 20 C.F.R. §656.30(c)(1). Other
certifications are only valid for the job and area of intended employment on the certification and
for the alien named in the labor certification. See 20 C.F.R. §656.30(c)(2) (with the exception of
certain professional athletes. INA § 212(a)(5)(A)(iii), 8 USC § 1182(a)(5)(A)(iii)). For a
definition or "area" see 20 C.F.R. §656.3.

The invalidating of a labor certification has long been an area of controversy. 20 C.F.R.
§656.30(d) also permits a Consul of the Department of State or an officer of the Department of
Homeland Security to invalidate a certification once issued, upon a determination made in
accordance with DHS or State Department regulations that fraud or willful misrepresentation of
a material fact involving the labor certification application has taken place.

11
 APPENDIX A

SOURCE MATERIAL FOR LABOR CERTIFICATION PRACTICE

§ 212(a)(5)(A) of the Immigration and Nationality Act, 8 USC § 1182(a)(5)(A),

http://www.oalj.dol.gov/PUBLIC/INA/REFERENCES/STATUTES/8_1182.HTM

20 C.F.R. Part 656 (links to both PERM and pre-PERM regulations)

http://www.oalj.dol.gov/PUBLIC/INA/REFERENCES/REGULATIONS/IMMIGRATION_REGULAT
IONS.HTM

Technical Assistance Guide No. 656 – Labor Certification [TAG] (1981). While this publication is in
some instances out of date it is still cited by the Department of Labor. It is referenced three times in the
Supplementary Information preceded the new PERM regulations. 69 Fed. Reg. 77325, 77338, 77365,
77374 (Dec. 27, 2004). Unless you have an old copy, it appears that the only places it is available is
through West.
http://west.thomson.com/documentation/westlaw/wlawdoc/wlres/imigdb03.pdf or through LexisNexis.
http://www.lexisnexis.com/practiceareas/immigration/immigration_products.asp

Board of Alien Labor Certification Appeals Decisions. http://www.oalj.dol.gov/libina.htm

(See Appendix B for a summary of the 356 PERM cases decided or pending at BALCA as of Sept. 12,
2008; see below for a discussions of the various types of cases available on OALJ website.

Liaison reports from the American Immigration Lawyers Association. http://www.aila.org

Lecture materials and tapes of AILA Annual Conference presentations. http://www.aila.org

Lecture materials and tapes of University of Texas Annual Immigration Conference.

http://www.utcle.org/

Dictionary of Occupational Titles, 4th Revised Edition, 1991

http://www.oalj.dol.gov/libdot.htm and O*Net http://online.onetcenter.org

Occupational Outlook Handbook, 2008-09 Edition, U.S. Department of Labor, Bureau of Labor
Statistics http://stats.bls.gov/oco/home.htm

DOL General Administrative Letters http://wdr.doleta.gov/directives/

The two most important web sites are http://www.foreignlaborcert.doleta.gov/ which contains links to
PERM Online, PERM FAQs, Contact information for the PERM processing center, Prevailing Wage
Guidance and many other useful links. The other site is http://www.oalj.dol.gov/libina.htm which is
the Immigration Collection of the Law Library of the Office of Administrative Law Judges. The
following is a lists of the decisions available on that site including the number of cases and the years
for each type, as of September 12, 2008:

-1-
ACM Decisions which involve enforcement of the limitations imposed on employers using alien crew
members for longshore activities in U.S. ports; Immigration and Nationality Act §258(c) and (d), 8
U.S.C. 1288(c) and (d); 20 C.F.R. Part 655, Subpart G. [1 decision, 2002]

ARN Decisions involve attestations attestations by facilities using nonimmigrant aliens as registered
nurses; Immigration Nursing Relief Act of 1989; Public Law 101-238, 103 Stat. 2099 (1989); 20 C.F.R.
Part 655, Subparts D and E (H1-A cases), and cases under the Nursing Relief for Disadvantaged Areas
Act of 1999, Public Law 106-95, 113 Stat. 1312 (1999); and Nursing Relief for Disadvantaged Areas
Reauthorization Act of 2005, Public Law 109-423, 120 Stat. 2900 (2006); 20 C.F.R. Part 655, Subparts
L and M (H1-C cases). [44 decisions, 1991-2002]

ETA, ESA, JSA and WPA Decisions involve the Job Service Complaint System; Wagner-Peyser Act
of 1933, as amended, 29 U.S.C. 49 et seq.; 38 U.S.C. Chapters 41 and 42; 20 CFR Part 658 [11 ESA
decisions, 1980-1992; 69 JSA decisions, 1981-2004; 73 WPA decisions 1979-2007]

JSW Decisions which are for appeals of prevailing wage determinations made by the ETA at the
request of the Wage and Hour Division pursuant to 20 C.F.R. §655.731(d) during the course of an
investigation into an employer's H-1B Labor Condition Application (LCA). [No decisions]

LCA Decisions which involve labor condition applications and requirements for employers using
aliens on H-1B visas in specialty occupations; INA §101(a)(15), 8 U.S.C. 1101(a)(15)(H)(i)(b),
1182(n); 20 C.F.R. Part 655, Subparts H and I. [358 decisions, 1993-present]

TAE Decisions which involving temporary alien employment arising under the Immigration &
Nationality Act §§101(a)(15(H)(ii)(a), 218, 8 USC §§1101(a)(15)(H)(ii)(a), 1188(c), 29 CFR Part 501.
[ESA enforcement actions] [82 decisions, 1982-present]

TLC Decisions involving temporary labor certification arising under INA §§101(a)(15)(H)(ii)(a), 218,
8 USC §§1101(a)(15)(H)(ii)(a); 1188(c), 20 CFR Part 655, Subparts B and C [ETA actions] [412
decisions, 1980-present]

MSP Decisions which involve the Migrant and Seasonal Agricultural Workers Protection Act, Public
Law 97-470, 96 STAT. 2583, January 14, 1983. [442 decisions, 1997-present]

INA Decisions are permanent alien labor certification 20 C.F.R. Part 656 commenced prior to March
28, 2005. [12,717 cases 2006-present] BALCA was created effective May 8, 1987 52 Fed. Reg.
11217-11219 (April 8, 1987). Prior to the time labor certification appeals were decided by single
Administrative Law Judges. BALCA is not bound by pre-BALCA decisions. Artdesign, Inc., 89-INA-
99 (Dec. 5, 1989). Some pre-BALCA cases were compiled in the Immigration Labor Certification
Reporter (Bender).]

PER Decisions are permanent alien labor certification 20 C.F.R. Part 656 commenced on or after
March 28, 2005. [356 cases 2006-present. See Appendix B.]

-2-
 Appendix B

A B C D E F
Decision Case
1
Case Number Date Claimant Employer Online? Decision
2 2008 2008 2008 2008 2008
3
2008PER00171 N/A GARMIN INTERNATIONAL, INC. NO
4
2008PER00170 MARTINEZ LUIS ALONSO ARTISTIC MARBLE & GRANITE SURFACES NO
CENTRO DE SERVICIOS MEDICOS DE
5
2008PER00169 09/12/08 ITRIAGO ALFREDO RAMON LEVITTOWN YES Dismissed – Appeal withdrawn by employer.
AVILA-RUIZ ANAMELY
6
2008PER00168 VIANNEY MARTONE BROS., INC. NO
7
2008PER00167 ZAMANI AMIR LOS ANGELES CENTER OF COMMERCE NO
8
2008PER00166 MERA-ESPEJO, PAOLA ALEXANDRIA CASTILLO-CARRION NO
9
2008PER00165 CEDENO, EDGAR ROLI RETREADING, INC. NO
10
2008PER00164 HERNANADEZ, HIPOLITO CUELLAR LLC SHOP RITE NO
11
2008PER00163 ZHANG, QIN FAIRFIELD UNIVERSITY NO
12
2008PER00162 GOLLA, SALOME MR. ALEX BLAVATNIK NO
IGLESIA EVANGELICA EMMANUEL
13
2008PER00161 MAJANO, HECTOR CHURCH NO
14
2008PER00160 VEGA, NELSON FORNOS OF SPAIN RESTAURANT NO
15
2008PER00159 MOROCHO, BLANCA AVILA CONSTRUCTION, INC. NO
16
2008PER00158 SANCHEZ-SANCHEZ, NICOLAS DAZZLE INC. FRENCH CLEANING NO
17
2008PER00157 MARTINEZ-CEVEDA, MARIO NRB 2 CORPORATION NO
18
2008PER00156 TAYSIN, SERENAY GRANITAS U.S.A. LLC NO
19
2008PER00155 ESTEVES, LAURINDA FRANGLO, LTD NO
20
2008PER00154 ORELLANA GUEVARA, FABIO AMIGOS, INC. NO
Page 1
 Appendix B

A B C D E F
21
2008PER00153 SIONOV, YAKOV AQUALIFE, INC. NO
22
2008PER00152 DUARTE, IMMER GUETLLER & SONS, LLC. NO
CHANNAVEERAPPA HEMANTH
23
2008PER00151 R. CELMAC TECHNOLOGIES SERVICES, INC. NO
24
2008PER00150 LOAIZA, MARIA BRODIES PUB NO
25
2008PER00149 RAMALHO NETO, FRANCISCO DURACRAFT OF GEORGIA NO
26
2008PER00148 RENIA, MARTHA ELEFTHERIA RESTAURANT NO
27
2008PER00147 CALDERON, DORIS BARCLAY WATER MANAGEMENT, INC. NO
28
2008PER00146 LIM, HYOUNG 3R MIAMI, INC. NO
29
2008PER00145 ZHANG, DAOJI HEUNG K. CHOE NO
30
2008PER00144 DARQUEA, BERNARDO DTI ASSOCIATES, INC. NO
31
2008PER00143 JESIC, SMILJKA MISHA CARPET CORPORATION NO
32
2008PER00142 MAMARI, FADI JALLO WASH AND LUBE, INC. NO
33
2008PER00141 09/08/08 CAPPELLETI, JORGE SAN IGNACIO INVESTMENTS YES Dismissed – Appeal withdrawn by employer.
34
2008PER00140 PUICON, SILVIA CONSOLIDATED TITTLE CO. NO
35
2008PER00139 ORDONEZ, ILMA MASTER AUTO EQUIPMENT NO
36
2008PER00138 GRIZZLE, BESWICK SRK POOL SERVICE, INC. NO
37
2008PER00137 09/12/08 LEE, JUNG OK SEOUL PRESBYTERIAN CHURCH YES Dismissed – failed to file a Statement of Intent to Proceed.
38
2008PER00136 09/12/08 EISSA, ESSAM CORPORATE CAFETERIA SERVICE YES Dismissed – failed to file a Statement of Intent to Proceed.
39
2008PER00135 SHARMA, ANIL DUNKIN DONUTS NO
40
2008PER00134 09/12/08 ROCHA, SANDRA ROSSANA GRAY YES Dismissed – failed to file a Statement of Intent to Proceed.
Page 2
 Appendix B

A B C D E F
41
2008PER00133 PRODAN, CAMELIA NJ INSTITUTE OF TECHNOLOGY NO
42
2008PER00132 CATALINA, MOLINA MARINEZ JJR MEXICAN GRILL NO
43
2008PER00131 09/12/08 NEMES, ANDREA AON INDUSTRIES, INC. YES Dismissed – failed to file a Statement of Intent to Proceed.
44
2008PER00130 09/12/08 DYCHE, MARY K. INTEGRATED KNOWLEDGE GROUP YES Dismissed – failed to file a Statement of Intent to Proceed.
45
2008PER00129 09/12/08 GARAY, CELSO JUAN C. RODRIGUEZ YES Dismissed – failed to file a Statement of Intent to Proceed.
46
2008PER00128 VIZCARRA ORTEGA, MARIO FRANCO CONSTRUCTION NO
Dismissed – failed to file a Statement of Intent to Proceed. Postal Service returned Notice
47
2008PER00127 08/28/08 LEON, NAISA HARRCO YES to Employer as undeliverable
48
2008PER00126 08/28/08 BOYKO, ANDRIY BEITH AHARON SYNAGOGUE YES Dismissed – failed to file a Statement of Intent to Proceed.
49
2008PER00125 HERNANDEZ, VICTOR CHRIS LOU CORPORATION NO
50
2008PER00124 08/28/08 HUANG, ZHENGYU THERMOFLOW, INC. YES Dismissed – failed to file a Statement of Intent to Proceed.
Dismissed – failed to file a Statement of Intent to Proceed. Postal Service returned Notice
51
2008PER00123 08/28/08 SCOTT, CLIFTON JERK MACHINE CENTER YES to alien as undeliverable
52
2008PER00122 BANSAL, SOMA B & M AUTO SERVICE, INC. NO
53
2008PER00121 08/28/08 DUARTE, ALEJANDRO CONLEY CORPORATION YES Dismissed – failed to file a Statement of Intent to Proceed.
54
2008PER00120 08/28/08 SCHNEE, DANIEL LOVERIDGE MACHINE & TOOL CO. YES Dismissed – failed to file a Statement of Intent to Proceed.
Dismissed – failed to file a Statement of Intent to Proceed. Postal Service returned Notice
55
2008PER00119 08/28/08 MINTENKO, MARIYA DMITRIY & STEFANIA BOYER YES to alien as undeliverable
Dismissed – failed to file a Statement of Intent to Proceed. Postal Service returned Notice
56
2008PER00118 08/28/08 LYTWYN, SVETIANA UNIVERSAL AIRMOTIVE YES to alien as undeliverable
57
2008PER00117 08/11/08 PONNUSAMY SHANMUGAVEL SAFENET, INC. YES Dismissed – Labor Certification approved by CO. Appeal dismissed as moot.
58
2008PER00116 08/20/08 ACHESON, DESMOND FAIRMONT MIRAMAR HOTEL YES Dismissed – failed to file a Statement of Intent to Proceed.
59
2008PER00115 FERNANDEZ, ELIA MILDRED SCHWARTZ NO
60
2008PER00114 08/20/08 SANCHEZ-CUEVAS, JOAQUIN PACIFIC AG RENTALS YES Dismissed – failed to file a Statement of Intent to Proceed.
Page 3
 Appendix B

A B C D E F
61
2008PER00113 MARES, GERARDO V.M. INTERNATIONAL NO
Dismissed – failed to file a Statement of Intent to Proceed. Postal Service returned Notice
62
2008PER00112 08/20/08 SRNEC, PETR LAAH & FRESH START YES to alien as undeliverable
63
2008PER00111 BIJEV, VESSELIN JAMES A. CUMMINGS, INC. NO
64
2008PER00110 09/10/08 MORALES-ROMERO, DIMAS M.D. NURSERY & LANDSCAPING YES Dismissed – Appeal withdrawn by employer.
65
2008PER00109 RIOS, GABRIEL BRITISH EUROPEAN NO
66
2008PER00108 09/10/08 MONROY-MEJIA, ANGEL M.D. NURSERY & LANDSCAPING YES Dismissed – Appeal withdrawn by employer.
67
2008PER00107 DA ROCHA, LERICE A.C. MASTER TILE, INC. NO
68
2008PER00106 08/20/08 DINH, LIEM PHO JOHNS YES Dismissed – failed to file a Statement of Intent to Proceed.
69
2008PER00105 NISAR, AHMED LSL INDUSTRIES, INC. NO
70
2008PER00104 08/20/08 ALVARADO, HUMBERTO PRO CIRCUIT PRODUCTS YES Dismissed – failed to file a Statement of Intent to Proceed.
Dismissed – failed to file a Statement of Intent to Proceed. Postal Service returned Notice
71
2008PER00103 08/20/08 NG, PAULINE ENVIRONMENTAL GROUP HOME YES to alien as undeliverable
72
2008PER00102 08/13/08 VAIDA, DOREL CIRCLE RM RANCH YES Dismissed – failed to file a Statement of Intent to Proceed.
73
2008PER00101 08/13/08 JHA, MRITYUNJAY SYCAMORE SOLUTIONS, LTD. YES Dismissed – failed to file a Statement of Intent to Proceed.
74
2008PER00100 NOORANI, TABREZ KINTOP PICTURES NO
Dismissed – failed to file a Statement of Intent to Proceed. Postal Service returned Notice
75
2008PER00099 08/13/08 LEMUS, MARIA TIVOLI, LLC YES to alien as undeliverable
76
2008PER00098 08/13/08 MY, NGOC THANH FASHION DESIGNER SERVICES YES Dismissed – failed to file a Statement of Intent to Proceed.
77
2008PER00097 08/13/08 GILLMER, HAYDEN EYEHEAR AUDIO VIDEO DESIGNS, INC. YES Dismissed – failed to file a Statement of Intent to Proceed.
78
2008PER00096 KUMAR, DHIREND AMERICAN SONA MORTGAGE NO
79
2008PER00095 SANCHEZ, JULIAN P.E. BARNES COMPANY NO
Dismissed – failed to file a Statement of Intent to Proceed. Postal Service returned Notice
80
2008PER00094 09/03/08 BHANDARI, SUNIL PUNJAB PALACE RESTAURANT YES to alien as undeliverable
Page 4
 Appendix B

A B C D E F
81
2008PER00093 AMEZCUA, ALEJANDRO P.E. BARNES COMPANY NO
82
2008PER00092 AGUILAR-HUERTA, ALBERTO P.E. BARNES COMPANY NO
83
2008PER00091 JUNG, TAE M & K ENTERPRISES NO
84
2008PER00090 08/13/08 CRUZ, CARMELO LIDO DINER YES Dismissed – failed to file a Statement of Intent to Proceed.
85
2008PER00089 08/13/08 ALCANTARA, FLORENCIO GOLDEN COAST SENIOR LIVING YES Dismissed – failed to file a Statement of Intent to Proceed.
86
2008PER00088 08/11/08 SANCHEZ, JESUS SAMO BUSINESS ENTERPRISES, INC. YES Dismissed – failed to file a Statement of Intent to Proceed.
87
2008PER00087 08/11/08 VILLACIS, CARLOS JORGE CAFE CARIBE, INC. YES Dismissed – failed to file a Statement of Intent to Proceed.
88
2008PER00086 08/11/08 MORANTE, CESAR VENTURA T. CORPORATION YES Dismissed – failed to file a Statement of Intent to Proceed.
89
2008PER00085 08/11/08 CAIRNS, IAN MAIRE COMPANY YES Dismissed – failed to file a Statement of Intent to Proceed.
Dismissed – While the Attorney responded to the Intent to Proceed letter, the employer's
copy was returned. BALCA checked www.anywho.com and discovered the employer had
two addresses in different states. BALCA then ordered the employer to conform that it
90
wished to proceed. “The Board directed that this statement be signed by the
Employer rather than the Employer’s attorney.” No response was received to that order
2008PER00084 08/20/08 BAILEN, MARIBEL CYD SWERDLOW YES and the appeal was dismissed.
91
2008PER00083 07/22/08 POSTAS, ERZSEBET ERZSI SCHWEITZER YES Dismissed - Employer died.
92
2008PER00082 08/01/08 FERREIRA, MAXIMILIANO MAR CONSTRUCTION YES Dismissed – failed to file a Statement of Intent to Proceed.
93
2008PER00081 MENESES, ZOILA E. INVESTORS REALTY NO
94
2008PER00080 RODRIGUEZ, ALTAGRACIA BRUCE N. LEVINE NO

95 Dismissed – failed to file a Statement of Intent to Proceed. Postal Service returned Notice
2008PER00079 08/01/08 CARO, WILSON H. FRANKS GOLF CAR SERVICE, INC. YES to Employer’s agent as undeliverable
96
2008PER00078 WANG, JIA WU HUNAN EXPRESS, INC. NO

97 Dismissed – failed to file a Statement of Intent to Proceed. Postal Service returned Notice
2008PER00077 07/22/08 SINGH, PALWINDER CHAHAL & MULTANI PETROLEUM YES to alien as undeliverable

Page 5
 Appendix B

A B C D E F
98
2008PER00076 07/22/08 SOTO, LUIS SEDCO CONTRACTING YES Dismissed – failed to file a Statement of Intent to Proceed.

99 Dismissed – failed to file a Statement of Intent to Proceed. BALCA received call from the
2008PER00075 07/17/08 ERSTAD, MAIKEN DRAGON ROUGE YES Employer, Alien no longer works for it.

100 NIOS TRINIDAD ROTI SHOP & WEST Dismissed – failed to file a Statement of Intent to Proceed. Postal Service returned Notice
2008PER00074 07/17/08 MORREN, CLIFF INDIAN BA YES to alien as undeliverable
101
2008PER00073 JOSHI, MANOJ YASMEENA CORPORATION NO
102
2008PER00072 MENDEZ, JORGE MONNALISA PASTRY SHOP NO
103
2008PER00071 07/17/08 GOUMAS, KLEOMENTIS OCEAN BREEZE RESTAURANT YES Dismissed – failed to file a Statement of Intent to Proceed.
104
2008PER00070 06/24/08 QUITO-SIGUENCIA, MANUEL CONSTRUCTION FOR 3, CORP. YES Dismissed – Appeal withdrawn by employer.
OUMAROU-DIODI,
105
2008PER00069 07/15/08 MAHAMADOU CITY JEANS YES Dismissed – failed to file a Statement of Intent to Proceed.
Dismissed – failed to file a Statement of Intent to Proceed. Alien called BALCA to
106 withdraw appeal. Postal Service returned Notice to Employer’s attorney, Matthew Karsch,
2008PER00068 07/15/08 IDJADI, TANAZ AMIR AZIZ & SON, INC. YES as undeliverable
107
2008PER00067 06/27/08 COSTA, MARILENE N. CORE MEDICAL GROUP YES Dismissed – Appeal withdrawn by employer.
108
2008PER00066 08/28/08 BALAZS, GABOR EUROPEAN INTERIOR CONCEPTS, INC. YES Affirmed – failed to supply SWA job order dates

Affirmed - “Mistakenly filing the application with the wrong office under defunct
regulations, however, does not present a compelling case for the application of equitable
109 relief.2 Moreover, the case for invocation of equitable principles is not helped by the fact
the dates of the newspaper advertising used on the PERM and pre-PERM applications do
2008PER00065 08/28/08 LI, SHI WANGS MING GARDEN, INC. YES not match, and that both applications were filed with the assistance of an attorney.”
110
2008PER00064 CEBREROS AYALA, MARTHA A. WWM, INC. NO
111
2008PER00063 06/09/08 ABDOLALI POUR, ROUZBEH TILE AND MARBLE DESIGN YES Dismissed – failed to file a Statement of Intent to Proceed.
Affirmed – In an effort to keep a pre-PERM priority adte BALCA affirmed “the CO’s
112 finding that the job title and job description were not identical based on the distinction
2008PER00062 08/27/08 VERMA, MAMTA N. FOREST INDEPENDENT SCHOOL YES between an elementary school teacher and a middle school teacher.”
113
2008PER00061 06/05/08 BEKTASEVIC, ENA OVEN, INC. YES Dismissed – failed to file a Statement of Intent to Proceed.

114 Dismissed – failed to file a Statement of Intent to Proceed. Postal Service returned Notices
2008PER00060 06/05/08 SARKAR, SAURAV THQ YES to alien and employer as undeliverable.
Page 6
 Appendix B

A B C D E F
115 2008PER00059 PUGA SANCHEZ, RAFAEL TRATTORIA ACQUA NO
116 2008PER00058 HUANG, WEILI BANK OF AMERICA NO
Dismissed – failed to file a Statement of Intent to Proceed. Postal Service returned Notices
117
2008PER00057 06/03/08 SURESH, VINITHA CRIMSON MICROSYSTEMS, INC. YES to alien and employer as undeliverable.
118 2008PER00056 06/03/08 EAPPEN, THOMAS K. J & M ASSOCIATES, INC. OF MS YES Dismissed – failed to file a Statement of Intent to Proceed.
119 2008PER00055 06/03/08 CHELLAPPA, STANISLAS A. J & M ASSOCIATES, INC. OF MS YES Dismissed – failed to file a Statement of Intent to Proceed.
120 2008PER00054 LUKASEVICA, NATALJA ART OF INSURANCE AGENCY, INC. NO
121 2008PER00053 LINARES ARRIETA, ROXANA CENTRO CULTURAL CHICANO, INC. NO
122 2008PER00052 06/03/08 VALDEZ, JOSE BANNER AIR AND HEAT, INC. YES Dismissed – failed to file a Statement of Intent to Proceed.
123 2008PER00051 PADILLA HERNANDEZ, ROMAN CALAVO GARDENS LANDSCAPE NO
124 2008PER00050 JOHNSON, CHRISTOPHER MAESTRO ELECTRIC, INC. NO
Affirmed – Employer submitted application before 30 days had passed from when the SWA
125
2008PER00049 06/12/08 CARDOSO, EFRAIN THE NUT CLUB LTD YES job order was closed.
126 2008PER00048 04/23/2008 ALI, SHAFAQAT 7 ELEVEN, INC. YES Dismissed – failed to file a Statement of Intent to Proceed.
127 2008PER00047 04/04/2008 AVILA MARQUEZ, DELIA MIXTO RESTAURANT, INC. YES Dismissed - Employer not interested in pursing a review
128 2008PER00046 04/23/2008 ALBAYRAK, CEMAL MITY AUTO SERVICE YES Dismissed – failed to file a Statement of Intent to Proceed.
129 2008PER00045 04/04/2008 SUMBA SINCHI, MELIDA MIXTO RESTAURANT, INC. YES Dismissed - Employer not interested in pursing a review
130 2008PER00044 04/23/2008 KRISHAN, LAL ASHOKA GASOLINE YES Dismissed – failed to file a Statement of Intent to Proceed.
Affirmed – If occupation appears on the DOL list of professional occupations employer
131 must recruit using the professional recruitment standard, regardless of whether the employer
2008PER00043 06/17/08 LUNA, MARCO A ONE AUTO CENTER YES has required a bachelor’s degree or higher degree for its particular position.
132 2008PER00042 06/12/08 GRISELDA, GOMEZ PACIFIC MOLDING, INC. YES Affirmed – Cannot use FEIN of an agent in lieu of the FEIN of the petitioning Employer.
Dismissed – failed to file a Statement of Intent to Proceed. (“Because the
133 Employer’s attorney did not respond to the Notice and Order on behalf of
LATVIJAS FINIERIS NORTH AMERICA, the Employer, we find that the appeal in the above-captioned matter has been
2008PER00041 04/01/2008 SVANKS, RAIMONDS INC. YES abandoned.”)
Granted – CO's decision not a accord old priority date where name and location changed
134 reversed when employer showed it had so amended the old ETS 750 before filing the PERM
2008PER00040 04/28/2008 ESTRADA, ANTONIO SELECT IMPORTS, INC. YES application.
Reopened – New attorney filed Statement of Intent to Proceed one day late.
135 Employer had moved. “The requirement to file a Statement of Intent to Proceed is
04/02/08; intended merely to remove moot appeals from the Board’s docket. Technical
2008PER00039 04/10/08 LEDESMA-JIMENEZ, JESUS OZARK MTN. CONSTRUCTION, CO. YES dismissals are disfavored.”

Page 7
 Appendix B

A B C D E F

Dismissed - “Review of the Appeal File indicates that the address shown on the
ETA Form 9089 was used by the Board to serve the Notice and Order. The AT&T
136 Internet yellow and white pages at www.anywho.com suggests that the Employer
may have moved to 525 International Pkwy, Richardson, TX 75081.
The Employer, however, was represented in this matter by Robert A. Kravitz,
Esquire. Because the Employer’s attorney did not respond to the Notice and Order,
2008PER00038
03/13/2008 MOSES, YOAV SWISA, INC. YES we find that the appeal in the above-captioned matter has been abandoned.”
137 2008PER00037 LEASK, YAEL A. FEDERAL INSURANCE CO. NO
138 2008PER00036
03/12/2008 OROZCO, EMETERIO MJ TRANSFER, INC. YES Dismissed – failed to file a Statement of Intent to Proceed.
139 03/12/2008 WINACOTT, WILLIAM
2008PER00035 LB LINE CO. YES Dismissed – failed to file a Statement of Intent to Proceed.
140 02/28/2008 SHAJI, BHEEMA S.
2008PER00034 INDO-AMERI SOFT, LLC YES Dismissed – failed to file a Statement of Intent to Proceed.
141 2008PER00033
02/01/2008 LEMAY, LISE J. PVC WINDOORS, INC. YES Dismissed - Employer not interested in pursing a review
142 2008PER00032
02/05/2008 TRUJILLO, CARMEN A. THE PRINCETON REVIEW YES Dismissed – failed to file a Statement of Intent to Proceed.
143 2008PER00031
02/05/2008 MONTECLARO, LEONOR P. ROMP N PLAY, INC. YES Dismissed – failed to file a Statement of Intent to Proceed.
144 2008PER00030
02/05/2008 DIRECTO, ARMANDO ST. JOHNS RESIDENTIAL HOME CARE YES Dismissed – failed to file a Statement of Intent to Proceed.
145 2008PER00029 TOVAR, HUMBERTO A. HISPANIC CONNECTION, INC. NO
CAMPOS RODRIGUEZ,
146
2008PER00028 02/05/2008 GUADALUPE ROWLEY PLASTERING CO. YES Dismissed – failed to file a Statement of Intent to Proceed.
Affirmed - “The submission of a corrected application to the Board does not
147 cure the problem because the Board’s scope of review is limited to the
2008PER00027 02/11/2008 GARCIA, ELIN SELFIN 5TH AVENUE LANDSCAPING, INC YES record upon which the CO made her decision.”
148 2008PER00026 11/16/2007 LIMON, JUAN ANTONIO QUALITY COUNTERTOPS, INC. YES Dismissed - Employer not interested in pursing a review
149 2008PER00025 11/16/2007 EDUARDO, RIOS BEAR CONTRACTORS, INC. YES Dismissed - Employer not interested in pursing a review
MIRANDA DE ALVAREZ, ROSA
150
2008PER00024 12/03/2007 LIDIA ROCKY MOUNTAIN JMP, INC. YES Dismissed – failed to file a Statement of Intent to Proceed.
GONZALEZ PALLARES, MARIA
151
2008PER00023 12/04/2007 LUISA ROCKY MOUNTAIN JMP, INC. YES Dismissed – failed to file a Statement of Intent to Proceed.
152 2008PER00022 11/27/2007 PEREZ-SALIDAR, JOSE MANUEL RAND K MAINTENANCE YES Dismissed – failed to file a Statement of Intent to Proceed.
153 2008PER00021 11/27/2007 ARMAS-GOMEZ, LUIS MIGUEL RAND K MAINTENANCE YES Dismissed – failed to file a Statement of Intent to Proceed.
154 2008PER00020 11/27/2007 SERNA, SERGIO GOMEZ RAND K MAINTENANCE YES Dismissed – failed to file a Statement of Intent to Proceed.
155 2008PER00019 11/27/2007 SERNA, EVERARDO GOMEZ RAND K MAINTENANCE YES Dismissed – failed to file a Statement of Intent to Proceed.
156 2008PER00018 11/27/2007 GOMEZ-SERNA J. GUADALUPE RAND K MAINTENANCE YES Dismissed – failed to file a Statement of Intent to Proceed.
157 2008PER00017 11/27/2007 RAHMAN MIZANUR SALTON INCORPORATED YES Dismissed – failed to file a Statement of Intent to Proceed.
158 2008PER00016 KIM SUN-KYEONG NESA INTERNATIONAL, INC. NO
159 2008PER00015 11/27/2007 PILLARISETTY SRIDHAR TENTEK, INC. YES Dismissed – failed to file a Statement of Intent to Proceed.
Granted - An error by the SWA in neglecting to take into account the short
160 length of February that caused the job order to be a day short. Employer had asked for 30
2008PER00014 12/17/2007 CAMPILLO DALAZAR YPOLITO LAM GARDEN CHINESE RESTAURANT YES days.
Page 8
 Appendix B

A B C D E F
161 2008PER00013 11/26/2007 TITSA BENJAMIN P XCELL TOTAL FITNESS YES Dismissed – failed to file a Statement of Intent to Proceed.

Affirmed - Employer used an SOC code found on Appendix A but did not use professional
162
recruitment. Employer failed to provide evidence to substantiate its claim that the 9089
2008PER00012 04/28/2008 RASAPOOR MANDANA FEDERAL MEDICAL GROUP YES contained an inadvertent error as to the correct SOC code for the position offered.
Affirmed – No FEIN submitted. “The Employer’s failure to obtain one prior to filing for
labor certification rendered her application deficient as a matter of law.” BALCA also
163
reaffirmed “the principle that the CO must identify the section or subsection allegedly
2008PER00011 08/27/08 OCHOA MINERVA KAY MAYS YES violated, and the nature of the violation, when notifying the applicant of a denial.”
164 2008PER00010 11/26/2007 DEMETERIO JENNIFER SKIN, A LASER DAY SPA YES Dismissed – failed to file a Statement of Intent to Proceed.
Affirmed – Employer failed to indicated start and end dates of the SWA order on a mailed in
165
2008PER00009 12/17/2007 EHSANI SAYEH DR. AFSHIN ABDOLLAHI YES 9089.

Dismissed - “The copy of the Notice and Order sent to the Employer’s attorney was returned
by the U.S. Postal Service as undeliverable based on the forwarding time having expired.
The Board could not find a current address for that attorney on www.anywho.com.
Moreover, the Board’s staff attempted to telephone the attorney’s phone number as listed in
166 the application, and could not get a connection. A reverse number lookup on
www.anywho.com was also unsuccessful. It is noted that the Appeal File does not indicate
that the Employer’s attorney responded to the Certifying Officer’s June 4, 2007 e-mail
seeking to determine whether the Employer wanted to file a new application or continue
with an appeal to BALCA. Thus, it appears that the instant appeal was referred to BALCA
2008PER00008 11/26/2007 METO QEMAL NATURAL FREEDOM YES by default rather than based on an active interest in the Employer in an appeal.”
167 2008PER00007 11/06/2007 PILLAI PRABHAKARAN J & M ASSOCIATES YES Dismissed – Employer withdrew appeal.
168 2008PER00006 11/26/2007 BEDOLLA RUBEN FARFAN ANTONELLI LANDSCAPING YES Dismissed – failed to file a Statement of Intent to Proceed.
169 2008PER00005 12/18/2007 RODRIGUEZ CALDERON LUIS BECK AG OPERATIONS INC YES Affirmed – Employer failed to place a job oder with a SWA.
Affirmed – If occupation appears on the DOL list of professional occupations employer
170 must recruit using the professional recruitment standard, regardless of whether the employer
2008PER00004 04/28/2008 HUERTA GUZMAN CESAREO EPI LIMITED PARTNERSHIP YES has required a bachelor’s degree or higher degree for its particular position.
171 2008PER00003 11/26/2007 GOMEZ OMAR MADISON M BELCHER YES Dismissed – failed to file a Statement of Intent to Proceed.
172 2008PER00002 LEE HAE-WAN GOLDEN BEAR CONSTRUCTION NO
173 2008PER00001 11/26/2007 PARRA-MUNOZ VINCENT BENCHMARK LANDSCAPE, INC. YES Dismissed – failed to file a Statement of Intent to Proceed.

174
2007 2007 2007 2007 2007
175 2007PER00123 11/19/2007 GRAHAM VINETTE ANN MERDEL G. DENNIS YES Dismissed – failed to file a Statement of Intent to Proceed.
ORELLANA CRISTOBAL NORTHERN VALLEY CONTRACTING CO.,
176
2007PER00122 11/16/2007 GUSTAVO INC. YES Dismissed – failed to file a Statement of Intent to Proceed.
177 2007PER00121 10/19/2007 THI HUA TUYET PHUONG SANH DU YES Dismissed – failed to file a Statement of Intent to Proceed.
NORTHERN VALLEY CONTRACTING CO.,
178
2007PER00120 11/16/2007 JARAMILLO JONAS EUGLOGIO INC. YES Dismissed – failed to file a Statement of Intent to Proceed.
179 2007PER00119 11/16/2007 ABDELMALAK HESHAM M & M CAR SERVICE AND LIMO YES Dismissed – failed to file a Statement of Intent to Proceed.
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A B C D E F
180 2007PER00118 RAMDATH DIPRAJ FORM-CO SUPPLY, LLC NO
Dismissed – failed to file a Statement of Intent to Proceed. BALCA mailed notice to
181
2007PER00117 11/16/2007 MOHAMED WAHID SHEHATA ALMADINA ENGINEERING P.C. YES employer 3 times, called and emailed.
Affirmed – BALCA affirmed the denial for a number of reasons, including that the job
182 order placed with the State Workforce Agency was outside the 180 days. BALCA also noted
2007PER00116 06/04/08 BALANOVA NORMA CAPATI MICHELLE GUEVARRA PENA PLLC YES that “[t]he Employer’s omissions on ETA Form 9089 were extensive and material.”
183 2007PER00115 10/19/2007 MAISANCHE ANGEL ALBERTO ELIAS FINISHING YES Dismissed – failed to file a Statement of Intent to Proceed.
184 2007PER00114 11/19/2007 LOJA-BERMEO LUIS A. MRI DISMANTLERS, INC. YES Dismissed – failed to file a Statement of Intent to Proceed.
185 2007PER00113 11/19/2007 CHAUCA-VIZHNAY OLMEDO GENICO, INC. D/B/A VICO RESTAURANT YES Dismissed – failed to file a Statement of Intent to Proceed.
186 2007PER00112 11/19/2007 SUNG SUH HO TRISTAN CO., LTD DBA LENNY'S YES Dismissed – failed to file a Statement of Intent to Proceed.
187 2007PER00111 11/19/2007 MEDINA-MEJIA ALEJANDRO WESTWAY DINER YES Dismissed – failed to file a Statement of Intent to Proceed.
ALBERTO-SUN MASON CONSTRUCTION,
188
2007PER00110 11/19/2007 CANTOS-FERNANDEZ LUIS R. INC. YES Dismissed – failed to file a Statement of Intent to Proceed.
189 2007PER00109 12/17/2007 CASTRO SILVIA DEBRA ALPERT & DANIEL ALPERT YES Affirmed – Number submitted by the Employer was not a nine digit FEIN.
190 2007PER00108 12/17/2007 LOZADO DORA LORI DISCOLO YES Affirmed – Employer submitted its Social Security Number instead of a FEIN.
191 2007PER00107 11/19/2007 SANCHEZ AVILA GONZALO POOLE FARMS YES Dismissed – failed to file a Statement of Intent to Proceed.
192 2007PER00106 11/19/2007 MIRANDA-TIRADO ISIDRO HANNA CLEANERS, INC. YES Dismissed – failed to file a Statement of Intent to Proceed.
KINGS COUNTY CARBURETOR &
193
2007PER00105 09/28/2007 AVILA DIEGO FERNANDO IGNITION CO., YES Dismissed - Employer withdrew appeal.
194 2007PER00104 06/04/08 EBOJO CHERRY PENDON MS. CARMEN LEE YES Affirmed – Employer did not have an FEIN number.
195 2007PER00103 10/19/2007 ZHEN WEIJIAN JADE PALACE RESTAURANT, INC. YES Dismissed – failed to file a Statement of Intent to Proceed.
196 2007PER00102 09/27/2007 MALTA MAURI, JR. FLORIDA STATE GAMES, INC. YES Dismissed – failed to file a Statement of Intent to Proceed.
197 2007PER00101 09/27/2007 SOUZA JOSE GINO GALAXY MARBLE, INC. YES Dismissed – failed to file a Statement of Intent to Proceed.
KREMER LANDSCAPE CONTRACTORS,
198
2007PER00100 09/27/2007 CABRERA-MELLADO CESAREO INC. YES Dismissed – failed to file a Statement of Intent to Proceed.
Affirmed - The job order placed with the State Workforce Agency was not completed at
199
2007PER00099 12/18/2007 WU CANHAO GOLDEN BRIDGE RESTAURANT, LLC YES least 30 days prior to submission of application.
200 2007PER00098 09/27/2007 HEGEDUS GABOR ZOLTAN INTERSTATE AVIATION YES Dismissed – failed to file a Statement of Intent to Proceed.
201 2007PER00097 09/11/2007 SANCHEZ HECTOR UNIVERSAL TRUSS INC. YES Dismissed - Employer withdrew appeal.
Affirmed – While its first print ad was in the appropriate Sunday newspaper the Employer
placed the seond ad in a local business newspaper on a weekday. While no advance degree
202 was involved and hence no professional journal alternative for the send ad was possible,
BALCA commented that “[i]t is possible that a business newspaper could be considered a
2007PER00096 06/04/08 MORISHITA KAZUHIKO OPEN INTERFACE NORTH AMERICA, INC. YES professional journal under the PERM regulations.”
203 2007PER00095 09/27/2007 KAMIYA MIKI FUJITSU SOFTWARE CORPORATION YES Dismissed – failed to file a Statement of Intent to Proceed.
204 2007PER00094 09/27/2007 NOLASCO-LIMON ROSSANA VISTA KNOLL SPECIALIZED CARE YES Dismissed – failed to file a Statement of Intent to Proceed.
Affirmed – Employer left section K-8 for form ETA 9089 blank. CO could not therefore
205
2007PER00093 06/04/08 DE DIOS-MAYO ALEJANDRO NORTH COUNTY COOLING YES determine if the alien met the minimum requirements.
206 2007PER00092 12/12/2007 VAKA ARJUNA RAO SUBHASHINI SOFTWARE SOLUTIONS YES Dismissed – failed to file a Statement of Intent to Proceed.

Page 10

A B C D
207
2007PER00091 03/28/2008 COVARRUBIAS TRINIDAD
208 2007PER00090 09/19/2007 KAMIYA TAKUKI
209
2007PER00089 12/18/2007 RANJBARI MAHMOUD
210
2007PER00088 09/19/2007 ALFAIA FILHO CARLOS A.
211 2007PER00087 09/18/2007 SERBAN ANGELA
212 2007PER00086 09/19/2007 CALALAS METHUSSELAH
213 2007PER00085 09/19/2007 AFSHARI FARID
214
2007PER00084 10/15/2007 MARTINEZ DE MALTEZ AIDA C. RICHARD ROBINSON
215 2007PER00083 09/18/2007 MA LU
216
2007PER00082 09/18/2007 PAZ JOSE ISABEL
217 2007PER00081 12/19/2007 KICHILI NAVEEN K.
218
2007PER00080 12/19/2007 DE LA ROSA SERGIO
219
2007PER00079 12/17/2007 DE SARAM MARIE SHARMINI
220 2007PER00078 09/19/2007 VAN HET HOF ROBERT-JOHN A. F.M. CUSTOM DESIGN, INC.
221
2007PER00077 12/18/2007 PODBIELSKI CZESLAW
ACERO-LOJANO MARIO
222
2007PER00076 09/12/2007 CAMILO
223 2007PER00075 08/20/2007 BRITO-QUITO FANNY PIEDAD
Appendix B
FIRST TRUCK SERVICES
FUJITSU SOFTWARE CORPORATION
TEXAS STORM OF HOUSTON
INGURAN, LP D/B/A SEXING
TECHNOLOGY
QUALITY BAKERY PRODUCTS
JAIME V. QUIOCSON
EXPRESS VALET PARKING COMPANY
LINKQUEST INC.
PERRAULT LANDSCAPE CONTRACTING,
LLC
SUBHASHINI SOFTWARE SOLUTIONS
BEST MANUFACTURING, INC.
JOAN M. BUGAJSKI-LANG
CONSTRUCTION PROS CORP.
PERKO RESTORATION CORP.
HAIR SENSE INC.
Page 11
E F
Affirmed – Date stamp on ETA 9089 mailed to DOL was outside the 180 days. The
Employer asserted that it had sent the form by FedEx Overnight for delivery on April 28,
2006 and that the form should have been dated stamped on thatdate and not the following
Monday. BALCA noted that “[t]he Employer failed to provide documentary evidence -
such as a copy of the Sender’s Copy of the US Airbill affixed to the package - supporting its
assertion that its application was transmitted via FED-EX OVERNIGHT on April 27,
YES 2006.”
YES Dismissed – failed to file a Statement of Intent to Proceed.
Affirmed - The job order placed with the State Workforce Agency was not completed at
YES least 30 days prior to submission of application.
Dismissed – failed to file a Statement of Intent to Proceed. Postal Service returned Notice
YES to alien as undeliverable
YES Dismissed – failed to file a Statement of Intent to Proceed.
YES Dismissed – failed to file a Statement of Intent to Proceed.
YES Dismissed – failed to file a Statement of Intent to Proceed.
Affirmed – Employer did not advertise because he had employed the alien for three years.
He had died but his daughter was continuing with the process to obtain a care giver for her
mother. BALCA opined: “Given the legal requirements of the labor certification process,
however, she might consider engaging an immigration attorney to assist her in understanding
YES and complying with the regulations.”
YES Dismissed – failed to file a Statement of Intent to Proceed.
Affirmed – Employer did not follow the required recruitment steps for a professional
YES occupation.
YES Affirmed – Employer failed to answer Section H-10A of ETA Form 9089.
Affirmed - Employer did not make a required entry for H-6A on the ETA 9089. Case was
dismissed on 09/17/07 for failure to file a Statement of Intent to Proceed. “Thereafter, the
Employer’s counsel provided a fax transmittal sheet indicating that he had timely attempted
to fax such a Statement to the Board on August 15, 2007. The Board thereupon vacated the
YES Order of Dismissal and reopened the appeal in an order dated October 9, 2007.”
Affirmed - No FEIN submitted on ETA9089. Employer did not have FEIN at time of
submission. BALCA noted that the Employer had employed the “Alien for the past six
years without a FEIN.” BALCA noted that “ Section C-7 served its purpose as intended –
by exposing a deficiency in the Employer’s application of not employing a domestic worker
YES in compliance with applicable law.”
YES Dismissed – failed to file a Statement of Intent to Proceed.
Affirmed - The job order placed with the State Workforce Agency was not completed at
YES least 30 days prior to submission of application.
YES Dismissed - Employer withdrew appeal.
YES Dismissed - Employer withdrew appeal.
 Appendix B

A B C D E F
MACANCELA-TENEZACA
224
2007PER00074 08/21/2007 MARCO BOLIVAR PERKO RESTORATION CORP. YES Dismissed - Employer withdrew appeal.
YASCARIBAY-AVILA MILTON
225
2007PER00073 08/23/2007 ARIOLFO AVILA CONSTRUCTION, INC. YES Dismissed - Employer withdrew appeal.
ARGUDO-BRITO FRANCISCO
226
2007PER00072 08/21/2007 JEOVANY MASTORIS RESTAURANT YES Dismissed - Employer withdrew appeal.
NIVICELA-NIVICELA LUIS
227
2007PER00071 08/21/2007 GUILLERMO DOS UPHOLSTERY CORP. YES Dismissed - Employer withdrew appeal.
228 2007PER00070 08/20/2007 NARVAEZ-SINCHI GLADYS INES MIXTO RESTAURANT, INC. YES Dismissed - Employer withdrew appeal.
Affirmed - The job order placed with the State Workforce Agency was not completed at
229
2007PER00069 12/18/2007 GAKPE KODJOVI AMEYOVI J. OYASSAN YES least 30 days prior to submission of application.
OYASSAN KOKOU Affirmed - The job order placed with the State Workforce Agency was not completed at
230
2007PER00068 12/18/2007 AMEDJRAMEDO AMEYOVI J. OYASSAN YES least 30 days prior to submission of application.
Affirmed - The job order placed with the State Workforce Agency was not completed at
231
2007PER00067 12/18/2007 IYER GANESH SYNCSORT INCORPORATED YES least 30 days prior to submission of application.
232 2007PER00066 08/21/2007 VILLACIS-SALGUERO JORGE G. GLOBE GATES, INC. YES Dismissed - Employer withdrew appeal.
233 2007PER00065 09/12/2007 SUCUZHANAY MARIA ALEGRIA AVILA CONSTRUCTION, INC. YES Dismissed - Employer withdrew appeal.
Granted – Employer listed the NY ETA office on the Posting for a job in Brooklyn, NY
while the NY ETA office was still open and processing pre-PERM cases. BALCA noted
234
that the “[p]roper office to list on the Posting is not indicated on the ETA 9089 nor in the
2007PER00064 09/19/2007 SEVINC VAHIT BROOKLYN AMITY SCHOOL YES regulations.” Decision limited to the facts of the case.
235 2007PER00063 07/10/2007 LEE SEUNG HEE PETTIS' MANOR FAMILY #C YES Dismissed – failed to file a Statement of Intent to Proceed.
SARATOGA SPRINGS PICNIC AND
236
2007PER00062 07/10/2007 ESTEBAN JOAQUIN ANGEL CAMPGROUND YES Dismissed – failed to file a Statement of Intent to Proceed.
237 2007PER00061 07/06/2007 RIOS-SERRANO FELIX MAE, INC. YES Dismissed – failed to file a Statement of Intent to Proceed.
238 2007PER00060 07/06/2007 SOARES RONEY GONZALES ECU INCORPORATED YES Dismissed – failed to file a Statement of Intent to Proceed.
Granted – The CO agreed that the Labor Certification should be granted and BALCA so
239
2007PER00059 07/12/2007 CHANKASIKUP PHILAIWAN MAKINO YES ordered.
240 2007PER00058 07/06/2007 CASELA EVELYN ROSELI MAGALONG (BELLS REST HOME) YES Dismissed – failed to file a Statement of Intent to Proceed.
Affirmed - The job order placed with the State Workforce Agency was not open for at least
241 30 days; ads were outside the 180 days; employer failed to complete the three additional
2007PER00057 09/21/2007 RIVERA JOSE ALEJANDRO CELL-CRETE CORPORATION YES recruitment steps for a professional occupation.
HERNANDEZ-AQUINO LIZBETH
242
2007PER00056 07/03/2007 Y. MEDINA ROBERTS EADES, DDS YES Dismissed – failed to file a Statement of Intent to Proceed.

Affirmed - Employer did not make a required entry for H-6A on the ETA 9089. An Order
of Dismissal had been entered in the case on July 3, 2007. On that date “the Employer’s
243 representative filed a brief stating that he had just received the Notice and Order, since it
had been mailed to his old address, returned to the Board and then forwarded to his new
address. The Employer’s representative requested that this brief be accepted as a Statement
2007PER00055 09/18/2007 VALENZUELA JUAN BEST PARK, LLC YES of Intent to Proceed....” By order dated July 6, 2007 BALCA vacated the dismissal order.

Page 12
 Appendix B

A B C D E F
Dismissed – failed to file a Statement of Intent to Proceed. (First cases requiring a Statement
244
2007PER00054 06/19/2007 LI JEAN MING J. EWAY HEALTH INSURANCE SERVICES YES of Intent to Proceed.)
245 2007PER00053 12/10/2007 VEERAVENKATA SATYA K. SUBHASHINI SOFTWARE SOLUTIONS YES See 2007PER00039. Case decided with that case.
246 2007PER00052 12/10/2007 MAHORKER VISHWANATH RAO SUBHASHINI SOFTWARE SOLUTIONS YES See 2007PER00039. Case decided with that case.
Dismissed – failed to file a Statement of Intent to Proceed. (First cases requiring a Statement
247
2007PER00051 06/19/2007 LOPEZ-NIETO ARTURO COSTA VERDE LANDSCAPE, INC. YES of Intent to Proceed.)
Dismissed – failed to file a Statement of Intent to Proceed. (First cases requiring a Statement
248
2007PER00050 06/19/2007 CHEN MEIZENG DRAGON HOUSE DELAWARE, INC. YES of Intent to Proceed.)
Dismissed – failed to file a Statement of Intent to Proceed. (First cases requiring a Statement
249
2007PER00049 06/19/2007 CAMBERO-OCAMPO JOSE J. US FOOD CORPORATION YES of Intent to Proceed.)
Dismissed – failed to file a Statement of Intent to Proceed. (First cases requiring a Statement
250
2007PER00048 06/19/2007 VLASOVA TATYANA HOONAH SCHOOL DISTRICT YES of Intent to Proceed.)
RAVINOOTHALA SREERAM
251
2007PER00047 05/22/2007 KUMAR DITECH COMMUNICATIONS YES Dismissed - Employer withdrew appeal.
252 2007PER00046 12/18/2007 NARAPARAJU SUDHAKAR SUBHASHINI SOFTWARE SOLUTIONS YES See 2007PER00043. Case decided with that case.
253
2007PER00045 05/18/2007 KUDAMALA RAMACHANDRA R. TECHNOSOFT CORPORATION YES Dismissed - Employer withdrew appeal.
254 2007PER00044 12/18/2007 VYDHYA SRINIVAS RAO SUBHASHINI SOFTWARE SOLUTIONS YES See 2007PER00043. Case decided with that case.
Granted - “We find no support for the CO’s assertion that a Form 9089
255 submitted without a DOL logo does not comply with the regulation at section 656.17(a).”
2007PER00043 12/18/2007 JOSYULA PHANI B. SUBHASHINI SOFTWARE SOLUTIONS YES Judge Vittone dissented.
256 2007PER00042 12/10/2007 ORUGANTY VIJAY SHANKER SUBHASHINI SOFTWARE SOLUTIONS YES See 2007PER00039. Case decided with that case.
257 2007PER00041 12/10/2007 KADIYALA NAGA SAI SRINIVAS SUBHASHINI SOFTWARE SOLUTIONS YES See 2007PER00039. Case decided with that case.
Affirmed - “[T]he Employer did not make a selection for Section H-8 on the ETA Form
258
2007PER00040 06/27/2007 MOMIN AZIZ BABU ALPINE STORE INC. YES 9089.”
259 2007PER00039 12/10/2007 PATHIPAKA VIJAYA KUMAR SUBHASHINI SOFTWARE SOLUTIONS YES Affirmed – Employer failed to answer Section H-10A of ETA Form 9089.
Affirmed - The job order placed with the State Workforce Agency was not open for at least
260
2007PER00038 05/08/2007 OSTER ANGELA MARCELA MINNESOTA RENAISANNCE SCHOOL YES 30 days.
CORTES-MELGOZA MARIO Affirmed – ETA 9089 filed 184 calendar days after the first recruitment. Also, employer
261
2007PER00037 06/27/2007 GUADALUPE SPECTRUM FOODS, INC. YES failed to indicate on the form the year the alien completed his education.
Affirmed - Date stamp on ETA 9089 mailed to DOL was outside the 180 days. BALCA
262 states that the case is “governed by the holding in Café Vallarta.” 2007PER00029,
2007PER00036 06/27/2007 CHAVEZ-NIZ MAURICIO LIONEL FALCONIERI & COMPANY, INC. YES 2007PER00033.

263 Affirmed – ETA 9089 filed 184 calendar days after the first recruitment. Employer's
2007PER00035 06/12/2007 RAMOS-LOPEZ MARIA FELIX RICHMOND PRINTING LLC YES argument that it should be business days and not calendar days was rejected by BALCA.
DIAZ-ALVARADO DELFICA
264
2007PER00034 06/12/2007 ROSEMARY RONALD & AMIE BALDWIN YES Affirmed – Date stamp on ETA 9089 mailed to DOL was outside the 180 days.
265 2007PER00033 06/12/2007 ANGULO-BANUELOS AGUSTIN CAFE VALLARTA YES See 2007PER00029. Case decided with that case.
266 2007PER00032 04/25/2007 ESTRADA MARIA ELEONOR DYNAMIC GEAR YES Dismissed - Employer withdrew appeal.

Page 13

A B C D
267 2007PER00031 06/12/2007 CRABTREE WILLIAM LEE
268 2007PER00030 05/11/2007 GULYAMOV SAIDAZIM M.
269
2007PER00029 06/12/2007 VEGA-RUVALCABA HUMBERTO CAFE VALLARTA
270
2007PER00028 06/12/2007 LUSSIER RICHARD ARLEN
271
2007PER00027 06/12/2007 HU WEI-CHUN
272
2007PER00026 05/16/2007 KAROLIS LIOUDMILA
273 2007PER00025 05/21/2007 KOUVARAS ATHANASIOS
274 2007PER00024 04/25/2007 VAZQUEZ DOLORES
275
2007PER00023 05/21/2007 CORRENTE RICARDO
276
2007PER00022 04/24/2007 GARCIA DAGOBERTO
277
2007PER00021 04/25/2007 ZHANG QI
278
2007PER00020 05/16/2007 DEKA KAUSHIK
279 RODRIGUES ISRAEL
2007PER00019 05/16/2007 MARCOLINO
280
2007PER00018 04/06/2007 OCHOA JOSE
281
2007PER00017 04/09/2007 BARBA-GARCIA ENGILBERTO
Appendix B
CONTROL CONTRACTORS INC.
REGIONS FINANCIAL CORPORATION
PERFORMANCE IMPROVEMENT FOR
INDUSTRY, IN
LUYON CORPORATION
BIG APPLE EDUCATIONAL CENTER
ABELAKI FAST FOOD INC.
MARIA GONZALEZ
FRANJO RESTORATION CONSTRUCTION
CO., INC
VIRGINIA GENERAL SERVICES, INC.
VIRGINIA TECH
DEMOS CONSULTING GROUP, LTD.
MK ENTERPRISE GROUP INC. & GRABOO
INC.
DENNYS LANDSCAPING
ANTONELLI LANDSCAPING
Page 14
E F
YES Affirmed - The Employer did not place any print advertisements.
YES Dismissed - Employer withdrew appeal.
Affirmed – BALCA ruled “that an application not submitted electronically is deemed filed
on the date on which the ETA Processing Center applied its date stamp memorializing
receipt of the application.” In this particular case that meant that the recruitment was stale.
BALCA warned that “[t]his, of course, means that an employer who chooses not to use
ETA’s electronic process for filing an Form 9089 must build in sufficient time for
transmittal by postal service or other courier, and initial processing by the CO’s mail room
staff to ensure that its recruitment advertisements will comply with the timing requirements
YES of section 656.17(e).”
Affirmed - The job order placed with the State Workforce Agency was not open for at least
YES 30 days.
Affirmed - The job order placed with the State Workforce Agency was not completed at
YES least 30 days prior to submission of application.
Affirmed – Employer failed to use three additional ways of recruitment for a professional
YES position as required.
YES Affirmed – Failure to include address of DOL CO on Posting is fatal.
YES Affirmed – Employer submitted its Social Security Number instead of a FEIN.
YES Affirmed – Employer failed to specify grounds for appeal.
Affirmed – Second newspaper ad for nonprofessional position not placed in a Sunday
YES edition.
Granted – The CO agreed that the Labor Certification should be granted and BALCA so
YES ordered.
Affirmed - Alien only qualified for the position under the alternative experience
requirement. Therefore the “ Employer’s application was required to state that any suitable
combination of education, training, or experience was acceptable. It did not, and we
YES therefore find that the CO properly denied certification.”
Affirmed - '[T]he Employer’s print advertisements were deficient both because they were
not published on a Sunday and because they were not published in an available newspaper
YES of general circulation in the area of intended employment.”
Affirmed – BALCA ruled that “an employer cannot avoid classifying position as an
Appendix A professional occupation by simply not requiring that the applicant have a
bachelor's or higher degree.” Employer also admitted that the particular professional SOC/
YES O*NET code was the most appropriate for the job offered.
Affirmed – BALCA ruled that “an employer cannot avoid classifying position as an
Appendix A professional occupation by simply not requiring that the applicant have a
bachelor's or higher degree.” Employer also admitted that the particular professional SOC/
YES O*NET code was the most appropriate for the job offered.

A B C D
282
2007PER00016 04/09/2007 EESCOTO RIGOBERTO
283
2007PER00015 04/09/2007 MURILLO-BARBOZA ARTURO
284
2007PER00014 03/08/2007 CORVANTES LUIZ MARIA
285
2007PER00013 05/21/2007 MORADI ODED AVRAHAM
286
2007PER00012 04/25/2007 CHAVEZ JESSICA L.
287
2007PER00011 04/09/2007 BARBA JOSE AGUSTINE
288
2007PER00010 04/09/2007 PEREZ-ESCOTO JORGE
289
2007PER00009 05/21/2007 SIERRA ACOSTA EULOGIA
290
2007PER00008 04/06/2007 NIETO ANTONIO DE JESUS
291 2007PER00007 02/21/2007 FORTES SONIA
292
2007PER00006 05/21/2007 CONTREAS CIRILO
293 2007PER00005 04/17/2007 NEUPANE (ARYAL) DIPTI
294
2007PER00004 12/12/2006 PASCHALIDES SIMEAO
295 2007PER00003 11/27/2006 CHEN SU-JEN
296 2007PER00002 11/27/2006 HARB ANTOINE
297
2007PER00001 05/21/2007 SZALA RYSZARD
Appendix B
ORLANDI LANDSCAPING GROUP
ORLANDI LANDSCAPING GROUP
BUSHMAN ASSOCIATES, INC.
CLASSY DYEING & FISHING
BETO'S RESTAURANT
ANTONELLI LANDSCAPING
ORLANDI LANDSCAPING GROUP
SECURA, INC.
PERRAULT LANDSCAPE CONTRACTING,
LLC
NANA'S SWEET SHOP-KAREN JACKSON
PHOENIX GEAR MFG.
BOMBAY ENTERPRISES, INC.
BENEVENTO HOMES, LLC
RFL ELECTRONICS INC.
SCHEIDT & BACHMANN USA, INC.
VOODOO CONTRACTING
CORP./UNIVERSAL CONTR
Page 15
E F
Affirmed – BALCA ruled that “an employer cannot avoid classifying position as an
Appendix A professional occupation by simply not requiring that the applicant have a
bachelor's or higher degree.” Employer also admitted that the particular professional SOC/
YES O*NET code was the most appropriate for the job offered.
Affirmed – BALCA ruled that “an employer cannot avoid classifying position as an
Appendix A professional occupation by simply not requiring that the applicant have a
bachelor's or higher degree.” Employer also admitted that the particular professional SOC/
YES O*NET code was the most appropriate for the job offered.
Affirmed - “The Employer offered an incomplete ETA
YES Form 9089, failing to answer many of the questions asked.”
Affirmed - Employer failed to provide the date that the Alien completed high school. This
is fatal because the CO must be able to determine whether the job requirements specified in
YES the Form 9089 are the Employer’s actual minimum requirements for the job.
Affirmed – Second newspaper ad for nonprofessional position not placed on a Sunday in a
Sunday edition of the paper was used for the first ad indicating that there was a Sunday
YES edition.
Affirmed – BALCA ruled that “an employer cannot avoid classifying position as an
Appendix A professional occupation by simply not requiring that the applicant have a
bachelor's or higher degree.” Employer also admitted that the particular professional SOC/
YES O*NET code was the most appropriate for the job offered.
Affirmed – BALCA ruled that “an employer cannot avoid classifying position as an
Appendix A professional occupation by simply not requiring that the applicant have a
bachelor's or higher degree.” Employer also admitted that the particular professional SOC/
YES O*NET code was the most appropriate for the job offered.
Affirmed - “[T]he job order placed with the SWA ... was not completed at least 30 days
YES prior to submitting the ETA Form 9089.”
Affirmed – BALCA ruled that “an employer cannot avoid classifying position as an
Appendix A professional occupation by simply not requiring that the applicant have a
bachelor's or higher degree.” Employer also admitted that the particular professional SOC/
YES O*NET code was the most appropriate for the job offered.
YES Dismissed – Employer went out of business
Affirmed – BALCA ruled that “[t]he CO is not required to process an application where the
employer fails to affirm that the listed Alien is, in fact, the beneficiary.” En Banc review
YES denied June 25, 2007.
YES Dismissed - Employer withdrew appeal.
Vacated – Case remanded to CO on CO's motion. The “CO has determined that the
YES application was improperly denied due to a computer error in calculating a time period.”
YES Dismissed - Employer withdrew appeal.
YES Dismissed - Employer withdrew appeal.
YES Affirmed – Failure to include address of DOL CO on Posting is fatal.
 Appendix B

A B C D E F
298 2006 2006 2006 2006 2006
Dismissed – Returned to CO for new decision on the basis of the BALCA decision
299
2006PER00062 08/31/2006 GURKAN MEHMET VOLKAN MIRANDO JEWELRY, INC. YES HealthAmerica, 2006PER00001.
300 2006PER00061 08/16/2006 HOSSAIN MOHAMMAD ARIF LISTRANI'S ITALIAN GOURMENT YES Dismissed - Employer withdrew appeal.
GARCIA GUIFARRO FRANCISCO Dismissed – Returned to CO for new decision on the basis of the BALCA decision
301
2006PER00060 08/31/2006 OVIDIO WOODCRAFT BUILDERS, INC. YES HealthAmerica, 2006PER00001.
Affirmed – Employer submitted evidence in a Morion for Reconsideration “supporting the
302 2006PER00059 10/10/2006 RIVERA VICTOR PEREZ SHOGUN AT BEY LEA YES denial of certification.”
303
2006PER00058 08/14/2006 RODRIGUEZ ARMANDO WOLFERZ PAINTING , CO, LLC YES Dismissed - Employer withdrew appeal.
Dismissed – Returned to CO for new decision on the basis of the BALCA decision
304
2006PER00057 08/31/2006 HEVI MARY TRINITY COLLEGE YES HealthAmerica, 2006PER00001.
305 2006PER00056 08/16/2006 GUEVER RODOLFO RUDY AUTO REPAIRS, INC. YES Dismissed - Employer withdrew appeal.
CREATIVE DESIGN AND MACHINING, Dismissed – Returned to CO for new decision on the basis of the BALCA decision
306
2006PER00055 08/31/2006 PAZ PADGETT BENNY ALEXIS INC. YES HealthAmerica, 2006PER00001.
Dismissed – Returned to CO for new decision on the basis of the BALCA decision
307
2006PER00054 08/31/2006 KONTEH DALLO NANDAY JOSEPH DUNCAN HAYDEN YES HealthAmerica, 2006PER00001.
Dismissed – Returned to CO for new decision on the basis of the BALCA decision
308
2006PER00053 08/31/2006 NITIN SOOD ARTECH INFORMATION SYSTEMS YES HealthAmerica, 2006PER00001.
Dismissed – Returned to CO for new decision on the basis of the BALCA decision
309
2006PER00052 08/31/2006 VIEIRA MARIO CESAR MARTINS LOU'S CARS, INC. YES HealthAmerica, 2006PER00001.
Dismissed – Returned to CO for new decision on the basis of the BALCA decision
310
2006PER00051 08/31/2006 HEYDARI SHAHIN PATERSON PUBLIC SCHOOLS YES HealthAmerica, 2006PER00001.
Dismissed – Returned to CO for new decision on the basis of the BALCA decision
311
2006PER00050 08/31/2006 CHAVEZ MARCO ANTONIO PARKWAY-KEW CORPORATION YES HealthAmerica, 2006PER00001.
Dismissed – Returned to CO for new decision on the basis of the BALCA decision
312
2006PER00049 08/31/2006 CORTEZ AIDA R AND D HEALTH MANAGEMENT YES HealthAmerica, 2006PER00001.
Dismissed – Returned to CO for new decision on the basis of the BALCA decision
313
2006PER00048 08/30/2006 PLA EDGARDO GASTON DENTAL SOLUTIONS PLLC YES HealthAmerica, 2006PER00001.
COTAMO GARCIA SONIA Dismissed – Returned to CO for new decision on the basis of the BALCA decision
314
2006PER00047 08/30/2006 PATRICIA CARDINAL TRAVEL LLC YES HealthAmerica, 2006PER00001.
Dismissed – Returned to CO for new decision on the basis of the BALCA decision
315
2006PER00046 08/30/2006 HUANG JIAN LONG BAUMGART'S RESTAURANT, INC. YES HealthAmerica, 2006PER00001.
Dismissed – Returned to CO for new decision on the basis of the BALCA decision
316
2006PER00045 08/30/2006 SYED YASIR ALI CARAUSTAR YES HealthAmerica, 2006PER00001.
TURKISH PUBLISHING & MARKETING, Dismissed – Returned to CO for new decision on the basis of the BALCA decision
317
2006PER00044 08/30/2006 CANIKLIGIL FAHRETTIN RAZI INC. YES HealthAmerica, 2006PER00001.
Dismissed – Returned to CO for new decision on the basis of the BALCA decision
318
2006PER00043 08/30/2006 GUZMAN DESIDERIO L. BARRIECELLA BROTHERS LANDSCAPING YES HealthAmerica, 2006PER00001.

Page 16
 Appendix B

A B C D E F
Dismissed – Returned to CO for new decision on the basis of the BALCA decision
319
2006PER00042 08/30/2006 ALTUNDAS KENAN THE TURKISH KITCHEN YES HealthAmerica, 2006PER00001.
320 2006PER00041 05/23/2006 KURBAN ARSHEED CADBURY PRESS, INC. YES Dismissed - Employer withdrew appeal.
Dismissed – Returned to CO for new decision on the basis of the BALCA decision
321
2006PER00040 08/30/2006 NA DONG YEOB LEHMAN BROTHERS INC. YES HealthAmerica, 2006PER00001.
JOHNSON ANDREW MARK Dismissed – Returned to CO for new decision on the basis of the BALCA decision
322
2006PER00039 08/30/2006 PETER SYNGENTA CROP PROTECTION, INC. YES HealthAmerica, 2006PER00001.
Dismissed – Returned to CO for new decision on the basis of the BALCA decision
323
2006PER00038 08/30/2006 BEKTAS DENIZ TOPICALS AND BEYOND LLC YES HealthAmerica, 2006PER00001.
THE HOLLAND SOCIETY OF NEW YORK, Dismissed – Returned to CO for new decision on the basis of the BALCA decision
324
2006PER00037 08/29/2006 VEENENDAAL HANNY H. INC. YES HealthAmerica, 2006PER00001.
Dismissed – Returned to CO for new decision on the basis of the BALCA decision
325
2006PER00036 08/29/2006 ZARALA JORGE TONI PINE HOLLOW COUNTRY CLUB YES HealthAmerica, 2006PER00001.
Dismissed – Returned to CO for new decision on the basis of the BALCA decision
326
2006PER00035 08/29/2006 BILINSKI BARTOSZ ROBERT WISNIEWSKI & ASSOCIATES P.C. YES HealthAmerica, 2006PER00001.
Dismissed – Returned to CO for new decision on the basis of the BALCA decision
327
2006PER00034 08/29/2006 CHABOWSKI MIROSLAW STAROPOLSKA RESTAURANT YES HealthAmerica, 2006PER00001.
Dismissed – Returned to CO for new decision on the basis of the BALCA decision
328
2006PER00033 08/29/2006 CALDERON DORIS PATRICIA BARCLAY WATER MANAGEMENT, INC. YES HealthAmerica, 2006PER00001.
Dismissed – Returned to CO for new decision on the basis of the BALCA decision
329
2006PER00032 08/29/2006 SOTO MARCOS JOAN F.F. INC. YES HealthAmerica, 2006PER00001.
LEWIS LANDSCAPING, LTD (THOMAS Dismissed – Returned to CO for new decision on the basis of the BALCA decision
330
2006PER00031 08/30/2006 LLANDEZ RAFAEL GARCIA STEIGERWA YES HealthAmerica, 2006PER00001.
Dismissed – Returned to CO for new decision on the basis of the BALCA decision
331
2006PER00030 08/29/2006 ARORA RAJIV HINA ENTERPRISES, LP YES HealthAmerica, 2006PER00001.
Dismissed – Returned to CO for new decision on the basis of the BALCA decision
332
2006PER00029 08/29/2006 LLIVICURA MAURICIO LITUMA MCA WOODWORKERS INC. YES HealthAmerica, 2006PER00001.
ALLIANCE COMPUTER CONSULTANTS Dismissed – Returned to CO for new decision on the basis of the BALCA decision
333
2006PER00028 08/29/2006 TAMBERG MUREL INC. YES HealthAmerica, 2006PER00001.
Dismissed – Returned to CO for new decision on the basis of the BALCA decision
334
2006PER00027 08/29/2006 MCDOWALL ALWYN SKYLINE STEEL, LLC YES HealthAmerica, 2006PER00001.
Dismissed – Notice of Docketing to Alien returned by the U.S. Postal Service. BALCA
335 ordered Employer to submit the Alien's current mailing address and confirm that this is an
2006PER00026 08/18/2006 CZABARKA EVA COLLEGE OF WILLIAM AND MARY YES active appeal. Employer did not respond.
CIAMMARICONE GABRIELE Dismisser - Employer sent letter stating Alien was no longer employed by it. Appeal
336
2006PER00025 08/09/2006 JUAN CUSTOM COPY & PRINTING YES dismissed as moot.
Dismissed – Returned to CO for new decision on the basis of the BALCA decision
337
2006PER00024 08/29/2006 BHASIN SAMEER MEDTRONIC, INC. YES HealthAmerica, 2006PER00001.
Dismissed – Returned to CO for new decision on the basis of the BALCA decision
338
2006PER00023 08/29/2006 RAINGER GARY TERRENCE SAY NO TO BUGS INC. YES HealthAmerica, 2006PER00001.

Page 17
 Appendix B

A B C D E F
ARIZONA DEPARTMENT OF HEALTH Dismissed – Returned to CO for new decision on the basis of the BALCA decision
339
2006PER00022 08/29/2006 QUI YUE SERVICES YES HealthAmerica, 2006PER00001.
ELAHINIA MOHAMMAD Dismissed – Returned to CO for new decision on the basis of the BALCA decision
340
2006PER00021 08/29/2006 HOSSEIN THE UNIVERSITY OF TOLEDO YES HealthAmerica, 2006PER00001.
341 2006PER00020 04/18/2006 ELKINS DENIS WILSON POOLS PLUS YES Dismissed - Employer withdrew appeal.
ARIZONA DEPARTMENT OF HEALTH Dismissed – Returned to CO for new decision on the basis of the BALCA decision
342
2006PER00019 08/25/2006 JOSHI VIRAL GIRISH SERVICES YES HealthAmerica, 2006PER00001.
Dismissed – BALCA issued an Order Setting Briefing Schedule .The copy of the Order
served on the Employer was returned by the U.S. Postal Service. BALCA ordered the
343
Employer's attorney to submit within 15 days the Employer's current mailing address. There
2006PER00018 08/24/2006 ARELLANO JOSE ABDIEL WEST COAST UNDERGROUND YES being no response to that order the appeal was dismissed.
Dismissed – Returned to CO for new decision on the basis of the BALCA decision
344
2006PER00017 08/25/2006 LIN JING CAREQUEST, INC. YES HealthAmerica, 2006PER00001.
RANDALL'S FOOD & DRUGS, LP DBA TOM Dismissed – Returned to CO for new decision on the basis of the BALCA decision
345
2006PER00016 08/25/2006 THORBURN JOANNE FLORENCE THUMB YES HealthAmerica, 2006PER00001.

346
2006PER00015 04/21/2006 RIGAS EFTHYMIOS
347
2006PER00014 08/25/2006 OLVERA-CORTES FANNY
348 2006PER00013 04/20/2006 GU XIAOZHEN
349
2006PER00012 04/20/2006 JENG MEEI-TSERN
350
2006PER00011 08/25/2006 TELLEZ-PEREZ SILVINO
351
2006PER00010 08/25/2006 ITURRIA MARINA
352
2006PER00009 08/25/2006 CORNET BERNARD
353
2006PER00008 08/25/2006 BOZORGMEHR NOUSHZAD
354
2006PER00007 08/25/2006 SUN YIQUN
355 2006PER00006 08/21/2006 ZHUBAEVA AIZHAN JANNA
BARCENAS-GONZALES
356
2006PER00005 08/25/2006 ALBERTO
357
2006PER00004 08/25/2006 PANGAM RANI SUHAS
GI CRETE INC. DBA GREEK ISLAND
ELK COUNTRY MOTELS
PEACH GARDEN CHINESE CUISINE
MATHEMATICA CAPITAL MANAGEMENT YES
MASUOS/LINLEE INC.
INTERNATIONAL IMMIGRATION
CENTERS, INC.
UNIVERSITY OF KANSAS
UNIVERSITY INSTITUTE OF REHAB., INC. YES
VANTEK INTERNATIONAL (USA) CO.,
INC.
USI HOLDINGS CORPORATION
FRANKLIN CLEANING, INC.
TYCO INTERNATIONAL (US) INC.
YES Dismissed - Employer withdrew appeal.
Dismissed – Returned to CO for new decision on the basis of the BALCA decision
YES HealthAmerica, 2006PER00001.
YES Dismissed - Employer withdrew appeal.
Dismissed - Employer withdrew appeal.
Dismissed – Returned to CO for new decision on the basis of the BALCA decision
YES HealthAmerica, 2006PER00001.
Dismissed – Returned to CO for new decision on the basis of the BALCA decision
YES HealthAmerica, 2006PER00001.
Dismissed – Returned to CO for new decision on the basis of the BALCA decision
YES HealthAmerica, 2006PER00001.
Dismissed – Returned to CO for new decision on the basis of the BALCA decision
HealthAmerica, 2006PER00001.
Dismissed – Returned to CO for new decision on the basis of the BALCA decision
YES HealthAmerica, 2006PER00001.
YES Dismissed - Employer withdrew appeal.
Dismissed – Returned to CO for new decision on the basis of the BALCA decision
YES HealthAmerica, 2006PER00001.
Dismissed – Returned to CO for new decision on the basis of the BALCA decision
YES HealthAmerica, 2006PER00001.

Page 18
 Appendix B

A B C D E F
Dismissed - The aliens' copy “of the Notice of Docketing ... was returned by the U.S. Postal
Service as undeliverable. Accordingly, on May 2, 2006 the Board issued an Order directing
that within 15 days of the date of the Order the Employer submit the Alien's current mailing
address and a statement confirming that this is an active appeal and that it is still sponsoring
358 the alien labor certification on behalf of the Alien. The Order warned that failure to submit a
statement of intent to proceed would result in a finding that the appeal had been abandoned,
and issuance of an order of dismissal. To date, the Board has not received a response from
2006PER00003 05/30/2006 LLORENTE MARIA MONICA D.A. DOUGLAS AIRCRAFT CO. YES the Employer or its attorney. “
BEIRA DA SILVA ALBINO Dismissed – Returned to CO for new decision on the basis of the BALCA decision
359
2006PER00002 08/25/2006 EDUARDO SAL'S ITALIAN RISTORANTE YES HealthAmerica, 2006PER00001.

BALCA held “that, although an agency may impose a rigid regulatory scheme to promote
administrative efficiency, under the particular circumstances of this case the ETA Certifying
Officer’s ("CO") denial of reconsideration was an abuse of discretion.” BALCA gave an
360 extensive discussion of the differences between the PERM and pre-PERM regulations.
BALCA further held “that for purposes of section 656.24(g)(2), documentation "submitted"
in support of a labor certification application constructively includes the materials held by
WIMALENDRAN an employer under the recordkeeping provisions of PERM.” See also 72 Fed. Reg.
2006PER00001 07/18/2006 UTHAYSSHANKER HEALTHAMERICA YES 27903-27947 (May 17, 2007) wherein DOL clarified this decision by rulemaking.

Page 19
 _________________________________
_________________________________
_________________________________
APPEALS TO THE _________________________________
BALCA _________________________________
_________________________________
San Antonio, Texas
October 24, 2008 _________________________________
_________________________________
_________________________________
_________________________________

Your Labor Certification has been
denied. What to do?
„ If your labor certification is denied, the
Department of Labor will give the reasons and
advise of review process.
„ Do you want to appeal?
„ Do you want to file a motion to reconsider?
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________

_________________________________
Timing Issues _________________________________
_________________________________
_________________________________
„ Is the denial based on something that can be _________________________________
remedied?
_________________________________
„ Recruitment still good?
„ Appeals take time. _________________________________
_________________________________
_________________________________
_________________________________

Reconsideration
20 C.F.R. §656.24(g)
„ Employer may request reconsideration within 30 days
of the date of determination.
„ Documentation submitted must have been in
existence at the time the application was filed.
„ Documentation must have been maintained in
connection with the requirements of 20 CFR
§656.10(f).
„ CO may treat the motion as a request for BALCA
review.
„ Caveat – if you do not want to go to BALCA say so.
Filing the Appeal
„ It is the Employer who appeals.
„ The request for review must be in writing and mailed
to the certifying officer within 30 days of the date of
determination.
„ The request must clearly identify the particular labor
certification determination from which review is
sought, and set forth particular grounds for the
request. It must also include a copy of the final
determination. See 20 C.F.R. §656.26(a)(1).
Actions by Certifying Officer
„ Assemble the indexed appeal file.
„ Sends the appeal file to the BALCA
„ A copy of the appeal file is sent to the
employer. See C.F.R. §656.26(b)(3).
„ Employer can send to BALCA documentation,
which is not in the appeal file, but which was
submitted prior to the final determination.
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
 _________________________________
BALCA Orders _________________________________
„ The BALCA sets the Briefing schedule. All parties, _________________________________
including the Solicitor, have 30 days to submit or
decline to submit any brief. See 20 C.F.R. §656.27(b). _________________________________
„ The BALCA has added a step before the briefing
schedule. In roughly May 2007 the BALCA began _________________________________
requiring the Employer to sent back a Statement of
Intent to Proceed within 30 days of the order by the _________________________________
BALCA. If no response was received the case was
dismissed. Numerous cases have been since _________________________________
dismissed on this basis. See Appendix B.
„ Keep all parties addresses up to date.
_________________________________
_________________________________
_________________________________
_________________________________
BALCA Process _________________________________
„ The BALCA may affirm the denial or revocation of the labor _________________________________
certification, direct the Certifying Officer to grant the
certification or overrule the revocation, or direct that a hearing _________________________________
be held on the case. See 20 C.F.R. §656.27(c).
„ While the BALCA no longer has authority to remand cases as _________________________________
it did pre-PERM it has taken upon itself the authority to return
cases to the certifying officer for further review. _________________________________
HealthAmerica, 2006-PER-00001 (July 18, 2006) (en banc).
„ The BALCA notifies the employer, the alien, the Certifying _________________________________
Officer, and the Solicitor of the determination and returns the
record to the Certifying Officer, unless the case has been set
for a hearing. See 20 C.F.R. §656.27(d). _________________________________
_________________________________
_________________________________
_________________________________
Other PERM Appeals _________________________________
_________________________________
_________________________________
„ Debarment actions.
„ Appeal stays debarment. _________________________________
„ Revocations of Labor Certifications. _________________________________
„ BALCA reviews de novo debarment and
_________________________________
revocation actions
_________________________________
_________________________________
_________________________________
 _________________________________
PERM Prevailing Wage Appeals _________________________________
„ Employer makes the request within 30 days of the date from _________________________________
when the PWD was issued by the State Workforce Agency.
„ Request is sent to the SWA. _________________________________
„ Must identify the PWD from which review is sought
„ The particular grounds for the request. _________________________________
„ Include all the materials pertaining to the PWD submitted to
the SWA up to the date of the PWD received from the SWA. _________________________________
„ The SWA must review the employer's request and can
add any material that may have been omitted by the _________________________________
employer.
„ The SWA sends the appeal to the ETA processing center _________________________________
and a copy of any material added to the employer.
_________________________________
_________________________________
_________________________________
Prevailing Wage Appeals
_________________________________
(continued)
_________________________________
„ Center director assigns appeal to a Certifying Officer.
_________________________________
„ Review is solely on the record CO may affirm or
modify the prevailing wage determination or remand _________________________________
for further action.
„ CO’s determination may be appealed to the BALCA. _________________________________
„ Request must be made within 30 days of the date of _________________________________
the decision of the CO.
„ The BALCA appeal procedures are the same as for a _________________________________
labor certification appeal.
_________________________________
_________________________________
 A Primer on PERM
Eugene J. Flynn, Dallas, TX
Rebecca R. Massiatte, Dallas, TX

University of Texas School of Law

32nd Annual Conference on Immigration & Nationality Law
October 22-24, 2008
Marriott Plaza
San Antonio, Texas

Overview
I. PERM Process
II. Case Preparation
III. Bona Fide Recruitment
IV. Recruitment Requirements
V. Recruitment Report & Timelines
VI. Review of Certifying Officer’s Decision
VII. BALCA Case Update

1
 PERM: Statutory Basis and Regulation
Section 212(a)(5)(A), 8 USC § 1182(a)(5)(A); 20 C.F.R. part 656

Department of Labor must certify:

The employment of the alien will not adversely affect the wages
and working conditions of U.S. workers similarly employed.

There are not sufficient workers who are able, willing, qualified
and available to do the work.

Facts about the PERM Process

1. Program Electronic Review Management
2. In effect as of March 28, 2005
3. Electronic review, attestation based
4. Employer registration (plc.atlanta@dol.gov
for inquiries); employer registers the
attorney,
tt authorizing
th i i representation,
t ti enabling
bli
access.

2
 PERM: “Preliminary” preparation
1. Counseling/educating
2. Viability of market test
3. Ability to Pay
4. Dual Representation issues
5. EB-2/EB-3 classification
6. Review history of nonimmigrant employee
7. H-1B 6 year limit, AC-21
8
8. U th i d work
Unauthorized k / risks
ik
9. Maintenance of status
10. Layoffs within the last 6 months? Layoffs during
recruitment?

PERM: “Schedule A” versus “Basic”

“Occupation
Occupation Driven
Driven”

Schedule A (20 C.F.R. § 656.5)

– Professional Nurses and Physical Therapists
– Aliens of Exceptional Ability in the arts and sciences

Basic
– All others that do not benefit from “pre-certification,” as defined by the
Department of Labor.

3
 PERM: “Schedule A” Case Preparation

1. Prepare ETA Form 9089

2 Gather
2. G th supportingti documentation
d t ti
(credential/experience verification)
3. File with the Form I-140, Petition for
Immigrant Worker, directly with the United
States Citizenship and Immigration Service
(USCIS)
4. File with Service Center having jurisdiction
over the place of intended employment.

PERM: “Basic” Case Preparation

• Case Strategy (position requirements, experience/credential

verification)
• Prevailing Wage Determination
- O*NET job code
- 4 level OES system
3. Recruitment: Professional versus Non-professional
- able,, willing,
g, qualified,
q , available US worker
- demonstration of bona fide recruitment efforts
- summary of recruitment: “Recruitment Report”
4. Prepare ETA Form 9089 (current/new in 1/09)
5. Attestations

4
 PERM: Bona Fide Recruitment
1. Unduly Restrictive Requirements
• O*NET and normal requirements
• Job Zones and SVP
2. Posting Requirement/Notice To Union
3. Actual Minimum Requirements
4. Business Necessity
5. “Dissimilarity” / Experience Gained w/same Employer
6. Foreign Language Requirement
7
7. “Magical”
Magical Kellogg Language: “any any suitable combination of
education, training or experience is acceptable”
8. Rejection of U.S. Workers
• Lawful job-related reasons; subjective basis impermissible
**See Appendix A Source Materials

PERM: Recruitment Requirements

1. Re-visit your case strategy before you get started!

2. 30-day Job Order: ST Workforce Agency

3. Notice of Filing Labor Certification: 10 business days (physical and media), excluding
weekends and holidays

4. Print Advertisements
Non-professional: 2 Sundays
Professional: 2 Sundays or professional journal in lieu of 1 Sunday for job requiring
experience and advanced degree and “normally used”

5. Professional “Additional 3”
Job Fair, Employer’s website, other internet ads, on-campus recruitment, trade/prof.
organizations, private employment firms, employee referral programs w/incentives,
campus placement offices, local and ethnic newspapers and radio and television ads.

5
 PERM: Advertisement Requirements
1. Contain the name of the employer;
2. direct applicants to report or send résumés, as appropriate for the
occupation to the employer;
occupation,
3. provide a description of the vacancy specific enough to apprise the U.S.
workers of the job opportunity for which certification is sought;
4. indicate the geographic area of employment with enough specificity to
apprise applicants of any travel requirements and where applicants will
likely have to reside to perform the job opportunity;
5. if a wage or wage range is placed in the ads it must not be a wage rate
lower than the prevailing wage rate (the wage need not be placed in the ads
but must appear on the internal posting);
6. not contain any job requirements or duties which exceed the job
requirements or duties listed on the ETA Form 9089; and
7. not contain wages or terms and conditions of employment that are less
favorable than those offered to the alien.

PERM: Recruitment Report & Timelines

Recruitment Report: Summary of bona fide

recruitment efforts and outcome.
outcome

1. 180 Day Recruitment Period

2. Validity of Prevailing Wage: must file labor
cert or start recruitment before expiration, as
provided by SWA
3. 10 and 30 Day Posting Periods
4. 30 Day “Quiet” Period

6
 PERM: Processing
1. File (online or mail)
2. Verification emails to employer
p y
3. Certifying Officer: Grant, Deny or Audit
• Compliance with the regulations
• Able, willing, qualified and available
• Adverse affect
4. Audit – random or “selective criteria” (triggers/red flag
issues: exceed SVP, combo of occupations, experienced
gained with same employer, foreign language requirement,
alternative
l i experience
i requirement
i without
ih K ll
Kellogg))
5. 30 day response period, extension request (pros/cons)
6. Adjudication period: weeks to several months
7. Validity of approved labor certification: 180 calendar days

PERM: Review of Certifying Officer’s Decision

1. Reconsideration
• Within
Withi 30 ddays off ddetermination
t i ti ddate
t
2. Review by the Board of Alien Labor
Certification Appeals
• BALCA Case Update: See Appendix B
• Statement of Position/Legal Brief
• Statement of Intent to Proceed
3. Judicial Review- administrative record only

7
 PERM: Practice Tips
1. Know the regulatory requirements, keep
th close!
them l !
2. Review, review, review…check & double
check…
3. Set expectations and lay out road map for all
parties involved.
involved
4. Communication and teamwork.
5. Patience.

8
 TAB 17
Law Office Management for Immigration Practitioners
 Law Office Management Issues for Immigration Practitioners

Paul Parsons, P.C.

704 Rio Grande
Austin, TX 78701
Phone: (512) 477-7887
Fax: (512)479-6903

Professional Ethics Committee for the State Bar of Texas, Opinion No. 573, July, 2006,
pertaining to requirements for lawyers to participate in privately sponsored internet
services when paying a participation fee.

Professional Ethics Committee for the State Bar of Texas, Opinion No. 570, May, 2006,
pertaining to requests from clients for a copy of lawyers' notes from a case file.

Garcia vs. Commission for Lawyer Discipline, 2007 WL 2141246 (Tex. App. - Austin,
2007), pertaining to practicing law under a trade name, fee splitting with non-lawyers,
and aiding/abetting the unauthorized practice of law.

Note: This paper was converted from a scanned image.

The conversion has been reviewed for accuracy; however,
minor spelling or text-conversion errors may still be present.
 THE PROFESSIONAL ETHICS COMMITTEE
FOR THE STATE BAR OF TEXAS
Opinion No. 573

July 2006

QUESTION PRESENTED

Under the Texas Disciplinary Rules of Professional Conduct, what requirements

must be met in order for a Texas lawyer to participate in a privately sponsored internet
service that obtains information over the internet from potential clients about their legal
problems and forwards the information to lawyers who have paid to participate in the
internet service?

STATEMENT OF FACTS

A Texas lawyer is considering participation in an internet client-lawyer service

(the "Service") that allows lawyers to participate in the Service for the payment of a fee.
The Service is a for-profit business that provides an internet web site offering potential
clients with legal problems the opportunity to receive communications from participating
lawyers concerning legal services available with respect to legal problems identified by
potential clients.

Lawyers can participate in the Service upon payment of a fixed fee. Lawyers pay
a fee based on the geographic areas and legal practice areas for which they wish to be
included in the Service. Lawyers can be included only for geographic areas in which
they are licensed to practice law. The Service is not involved in the retention of a
participating lawyer by a potential client, and it does not receive any compensation from
potential clients or lawyers based on retention, legal fees paid, or results obtained by a
lawyer.

When potential clients wish to seek a lawyer using the Service, they go to the
Service web site and input their geographic location, the general area of law of their legal
problem, and possibly other information relevant to their selection of a lawyer. Within
the preset general areas of law, potential clients may then choose more specific legal
practice areas and provide further detail by choosing among menus of alternatives or
entering certain limited information such as relevant dates. Potential clients may also be
given the opportunity to enter a short narrative describing their problem.

Lawyers for a particular potential client are identified based on geographic

location, either statewide or on a more limited basis such as city or county, and on the
legal practice area involved as specified by the potential client using the menus provided
on the Service web site. The Service provides information from the potential client to the
lawyers identified and each such lawyer is then free to decide whether to communicate
advertising information to the potential client. Every lawyer participating in the Service
for a geographic and legal practice area combination that corresponds to the selections
made by a potential client will receive a communication from the Service regarding the
potential client and will have the opportunity to communicate with the potential client.

The Service does not purport to select, rate, or recommend lawyers, including
lawyers that correspond to a potential client's information, but the Service may limit the
number of lawyers who are permitted to participate for certain geographic areas or with
respect to certain legal practice areas.

DISCUSSION

In Professional Ethics Committee Opinion 561 (August 2005), the Committee

concluded that the Texas Disciplinary Rules of Professional Conduct prohibit a lawyer
from paying a fee to be listed on a for-profit internet site that obtains information over the
internet from potential clients and forwards the information to one or more lawyers who
have paid to participate with respect to the internet site. Opinion 561 deals with client-
lawyer internet connection services in general and does not address whether adherence to
limitations not considered in that Opinion could make such a service permissible under
the Texas Disciplinary Rules. The internet service described in Opinion 561 was not
restricted from using discretion in selecting, from among all qualified lawyers
participating in the service, the specific lawyers who would receive information
concerning a particular potential client. Without more, the absence of a limit on the
exercise of such discretion in the service's selection of lawyers rendered the service
considered in Opinion 561 an impermissible referral service rather than a permitted
advertising or public relations service.

This Opinion addresses the question of whether compliance with additional

requirements or restrictions in connection with such a service could make participation in
the service permissible for Texas lawyers.

The Texas Disciplinary Rules of Professional Conduct include provisions dealing

with advertisements in the public media and participation in lawyer referral services.
Rules 7.03(b) and 7.04 prohibit the payment of a fee by a lawyer to a non-lawyer for
soliciting or referring prospective clients to the lawyer, unless the referral is from a
lawyer referral service that meets the requirements of chapter 952 of subtitle B of title 5
of the Texas Occupations Code, which is known as the Texas Lawyer Referral Service
Quality Assurance Act. The Service is not a lawyer referral service meeting the
requirements of this statute because it is a privately owned, for-profit organization.

Rules 7.03(b) and 7.04 also permit a lawyer to pay reasonable fees for advertising
and public relations services rendered in accordance with the Rules, including paying
reasonable fees for advertising in electronic (or internet) telephone directories and legal
directories. Thus, the question is what additional elements must be included in a lawyer-
client internet connection service to make the service a permissible advertising or public
relations service rather than a prohibited referral service. As a basis for answering this
question it is helpful to consider the defining characteristics of referral services and
internet directories.

Referral services such as those run by bar associations have historically been
operated by telephone. A person with a legal problem looking for a lawyer can call the
referral service and describe the problem to a referral service staff person who answers
the phone. This staff person will determine the legal practice area into which the problem
falls and then give the caller the name and contact information of one or more lawyers
who are listed with the referral service as seeking clients in the particular legal practice
area. Most often, the lawyer or lawyers chosen are simply the next in line on a list of
eligible lawyers. However, the staff person making the selection can exercise discretion
in terms of deciding which lawyer from among those eligible will be recommended to the
caller. In addition, the staff person would often make a determination as to the legal
practice area relevant to the potential client's problem. Because the communications
with a referral service normally result in the referral of only one or two lawyers and
because referral services are non-profit organizations typically associated with a bar
association, potential clients will frequently believe that an element of recommendation
accompanies the referral.

Internet legal directories typically allow lawyers to be listed in the directory for a
fee. Lawyers provide information about themselves that is provided to a person who
finds the lawyer through the directory. Directories can be searched by using the name of
a lawyer. A closer parallel to the internet service here under consideration is a search
within an internet legal directory conducted by geographic location and legal practice
area. Typically, a lawyer listed in an internet directory provides the locations where he
practices and selects, from a pre-defined list, those legal practice areas in which he wants
to be identified. A person using the internet legal directory searches for a lawyer by
specifying a geographic location and selecting a legal practice area from a specified list.
The results of the search are automatically determined by a computer based on
geographic location and legal practice area as input by the person using the directory.
Internet legal directories generally accept an unlimited number of lawyers provided that
they are properly licensed to practice law. Other criteria can be applied by a directory as
a qualification for listing, for example holding board certification. In addition, some
directories make and communicate ratings for lawyers in the directory. In an internet
directory, the search results will include all lawyers corresponding to the selected criteria
without limitation or elimination. However, the search results may be ordered or
prioritized based on various criteria, including in some cases the relative amounts of fees
paid to the directory by the participating lawyers. Because internet directories are seen
by their users as electronic versions of telephone directories, users can be assumed to
understand that a directory is not recommending the lawyers listed in the directory.

Under the standards outlined above, the Committee believes that an internet
service such as the Service would be an advertising or public relations service
permissible for Texas lawyers under the Texas Disciplinary Rules of Professional
Conduct rather than a prohibited referral service, provided that the following
requirements are met:
 1. The selection of lawyers for a potential client identified in response to
the potential client's information is a wholly automated process performed by
computers, without exercise of any discretion, based on the information provided
by the potential client and the information provided by participating lawyers.
2. The Service takes sufficient steps to ensure that a reasonable potential
client understands (a) that only lawyers who have paid a fee to be included in the
Service will be given the opportunity to respond to the potential client and (b) that
the Service makes no assertions about the quality of the lawyers included in the
Service. The Service must not state that it is making referrals of lawyers or
describe itself in such a way that would cause a reasonable potential client to
believe the Service is selecting, referring and recommending the participating
lawyers. The Service must ensure that a reasonable potential client either
understands that the Service is open to all licensed lawyers or, if there are limits
on the number or qualifications of lawyers who may participate in the Service,
understands the nature of those limits.
3. The fee charged by the Service is a reasonable fee for the advertising
and public relations services provided. See Rule 7.03(b).
4. The Service does not unreasonably limit or restrict, either directly or by
means of a high fee structure, finely drawn geographic areas and legal practice
areas, or otherwise, the number of lawyers it allows to participate for a given
geographic area or legal practice area to such an extent that the Service in effect is
referring particular types of potential clients to particular lawyers.
5. Every initial communication sent by the lawyer to a potential client that
is identified through the Service is advertising information sent by electronic
means and clearly states that the communication to the potential client consists of
advertising information, that the communication is being sent after identification
of the client through the Service based on geographic area and legal practice area,
and that the lawyer has paid a fee to participate in the Service.
6. A lawyer does not communicate in person, by telephone, or by other
electronic means involving live, interactive communication with a potential client
identified through the Service unless and until the prospective client has requested
such communication. See Rule 7.03(a).

In order to comply with the Texas Disciplinary Rules of Professional Conduct, a

Texas lawyer wishing to participate in the Service must take reasonable steps to
determine whether the Service meets requirements 1 through 4 specified above. In
addition, a Texas lawyer who has investigated and determined that the requirements
outlined above are met in the operation of the Service will have a continuing
responsibility to monitor the operations of the Service to ensure that it continues to meet
these requirements. Finally, a lawyer wishing to use the Service must ensure that
communications on the lawyer's behalf of advertising information to potential clients
identified through the Service comply with requirements 5 and 6 above as well as more
generally with the requirements of Rules 7.01 through 7.07 concerning provision of
information with respect to legal services.
CONCLUSION

Under the Texas Disciplinary Rules of Professional Conduct, a lawyer may pay a
fee to participate in an internet client-lawyer connection service of the type described in
this opinion provided that the requirements specified in this opinion are met.
Opinion No. 570, May 2006
QUESTION PRESENTED: Under the Texas Disciplinary Rules of Pro-
fessional Conduct, may a lawyer refuse a former client's request to disclose or
turn over the lawyer's notes made in the course of and in furtherance of his
representation of the client?

Statement of Facts Discussion

A former client of a lawyer has
demanded to see the lawyer's file on the
representation of the client. The lawyer
has previously provided copies of most
of the file to the former client but has
withheld copies of the lawyer's notes cre-
ated during the representation of the
client. The lawyer is not claiming a
lawyer's lien or other similar right over
the notes.
Although no lawyer's lien is asserted
in this case, the issue here considered has
arisen in the past primarily in cases in
which the lawyer was asserting such a
lien. In the context of cases concerning a
lawyer's lien, this Committee has distin-
guished between matters of legal ethics
and matters of law. Specifically, prior
Professional Ethics Committee Opinions
have recognized that a lawyer is permit-

www.texasbar.com
ted to retain a client file pursuant to a
proper legal claim so long as doing so
will not prejudice the client in the sub-
ject matter of the representation. See e.g.
Opinion 411 (January 1984) and Opin-
ion 395 (May 1979, modified March
1980).
It is also important to note that a
lawyer's file may contain many different
types of documents or records created by
the lawyer, documents obtained from the
client, documents obtained from third
persons, pleadings, court orders, and
contracts. A lawyer's ethical obligations
may vary depending on the type, source,
or content of the document and other
relevant factors. This opinion is limited
to a consideration of the issue with
respect to notes created by a lawyer, and
this opinion does not address the issue
with respect to other types of documents
or information contained in a lawyer's
file.
Rule 1.14(b) of the Texas Disciplinary
Rules of Professional Conduct provides
that "[e]xcept as stated in this Rule or
otherwise permitted by law or by agree-
ment with the client, a lawyer shall
promptly deliver to the client ... any
funds or other property that the client...
is entitled to receive. ..." In Hebisen v.
State, 615 S.W. 2d 866 (Tex. App. —
Houston [1st Dist.] 1981, no writ), the
court interpreted the meaning of the
predecessor of current Rule 1.14(b),
holding that the term "other properties"
included the clients papers and other
documents that the lawyer had in his file.
615 S.W.2d at 868.
Rule 1.15(d) provides as follows:
(d) Upon termination of representa-
tion, a lawyer shall take steps to
the extent reasonably practicable
to protect a client's interests, such
as giving reasonable notice to the
client, allowing time for employ-
ment of other counsel, surrender-
ing papers and property to which
the client is entitled and refund-
ing any advance payments of fee
that has not been earned. The
lawyer may retain papers relating
www.texasbarjournal.com
to the client to the extent permit-
ted by other law only if such
retention will not prejudice the
client in the subject matter of the
representation.
Read together, Rules 1.14(b) and
1.15(d) provide that, generally, the docu-
ments in a lawyer's file that are property
to which the client is entitled must be
transferred to the client upon request
unless the lawyer is permitted by law to
retain those documents and can do so
without prejudicing the interests of the
client in the subject matter of the repre-
sentation.
In In re George, 28 S.W.3d 511 (Tex.
2000), the court ruled on the issue of
whether the work product of disqualified
counsel should be made available to the
disqualified counsel's client and successor
counsel. The court struggled with the
conflict between the client's right to
access work product and the interest in
preserving the purposes of the underly-
ing disqualification by restricting access
to the tainted work product. In the
course of its analysis, the court noted
that "[t]he attorney is the agent of the
client, and the work product generated
by the attorney in representing the client
belongs to the client." 28 S.W3d at 516,
citing Rule 1.15(d) and the opinion in
Hebisen v. State, discussed above.
In Occidental Chemical Corp. v.
Banales, 907 S.W2d 488, 490 (Tex.
1995), the Texas Supreme Court
described the work product privilege:
First, the privilege protects the attor-
ney's thought process, which includes
strategy decisions and issue formula-
tion, and notes or writings evincing
those mental processes. Second, the
privilege protects the mechanical
compilation of information to the
extent such compilation reveals the
attorney's thought processes. 907
S.W.2d at 490.
"Work product has been subsequently
defined in Rule 192.5(a) of the Texas
Rules of Civil Procedure as follows:
(a) Work product defined. Work
product comprises:
(1) material prepared or mental
impressions developed in
anticipation of litigation or
for trial by or for a party or a
party's representatives, includ-
ing the party's attorneys, con-
sultants, sureties, indemnitors,
insurers, employees, or agents:
or
(2) a communication made in
anticipation of litigation or
for trial between a party and
the parry's representatives or
among a party's representa-
tives, including the party's
attorneys, consultants, sureties,
indemnitors, insurers, employ-
ees, or agents.
In Resolution Trust Corporation v.
H_________, P.C., 128 F.R.D. 647
(N.D. Tex. 1989), the court considered
the issue of the ownership of files gener-
ated by a law firm during its representa-
tion of a client and determined that the
entire contents of the law firm's files con-
cerning the representation of the client
belonged to the client and ordered the
law firm to turn over the entire contents
of the firm's files, including work prod-
uct generated by the lawyer such as notes
and legal memoranda. In reaching this
decision the court considered the prede-
cessor to current Rule 1.14(b), this
Committee's Opinion 395 (May 1979,
modified March 1980), Hebisen v. Texas',
615 S.W. 2d 866. (discussed above), and
Matter of Kaleidoscope, Inc., 15 Bankr.
232 (Bankr. N.D. Ga. 1981), rev'd on
other grounds, 25 Bankr. 729 (D.C. Ga.
1982). The court considered and reject-
ed arguments that the files did not have
to be turned over when there were allega-
tions of misconduct by the lawyer or
because the documents contained infor-
mation that was attorney-client privi-
leged or work product (including
documents produced in anticipation of
litigation with the client).
Restatement (Third) of The Law
Governing Lawyers (American Law
Institute -2000) (the "Restatement") Sec-
tion 46 addresses a lawyer's duty to pro-
Vol. 69, No. 8 • Texas Bar Journal 789
ISSUED BY THE PROFESSIONAL ETHICS COMMITTEE FOR THE STATE BAR OF TEXAS

vide to the client documents held by the full benefit of the services the lawyer Accordingly, documents that the for-
lawyer. A portion of the discussion in agreed to provide to the client. mer client is entitled to obtain include a
Comment c to Section 46 of the Restate- However, like the Restatement, the lawyer's notes that constitute work prod-
ment recognizes circumstances that Texas Committee recognizes that there are uct and relate to the client and the
courts have not recognized but that some some other unusual circumstances that lawyer's representation of the client. Rule
courts in other jurisdictions have found would justify the withholding of certain 1.15(d) requires that any such docu-
would justify not providing a portion of lawyer's notes from a client. Examples ments must be given to the client upon
a lawyer's client file to the client: include notes that contain information request unless the lawyer is permitted by
A lawyer may refuse to disclose to the obtained in discovery subject to a court's the exceptions discussed above or by
client certain law-firm documents protective order forbidding disclosure of other law to retain those documents and
reasonably intended only for internal the information to the client, notes can do so without prejudicing the inter-
review, such as a memorandum dis- where the disclosure would violate the ests of the former client in the subject
cussing which lawyers in the firm lawyer's duty to another person, and matter of the representation.
. should be assigned to a case, whether notes containing information that could
a lawyer must withdraw because of reasonably be expected to cause serious Conclusion
the client's misconduct, or the firm's harm to a mentally ill client. See general- Under the Texas Disciplinary Rules of
possible malpractice liability to the ly Comment c to Section 46 of the Professional Conduct, a lawyer must
client, The need for lawyers to be able Restatement. These exceptions are based upon request provide to a former client
to set down their thoughts privately on a lawyer's duties owed to others, the notes of the lawyer from the lawyer's
in order to assure effective and appro- including other clients, third persons and file for that former client except when
priate representation warrants keep- courts, or to the client, but are not based the lawyer has the right to withhold the
ing such documents secret from the on the lawyer's own interests or concerns notes pursuant to a legal tight such as a
client involved. ... vis-à-vis the client. Thus, a lawyer may lawyer's lien, when the lawyer is required
In light of the Texas cases discussed withhold from a client or former client to withhold the lawyer's notes (or por-
above that recognize a strong obligation certain specific notes (or portions of tions thereof) by court order, or when
on Texas lawyers to provide Tiles to notes) when required to do so by a court not withholding the notes (or portions
clients and in the absence of any Texas or when not doing so would violate a thereof) would violate a duty owed to a
court decision recognizing a limitation duty owed to a third person or risk caus- third person or risk causing serious harm
such as that stated in the Restatement ing serious harm to the client. to the client.
passage quoted above, the Committee is
of the opinion that the exception
described in the quoted passage for inter-
nal law-firm materials relating to a client
should not apply in the application of
Rules 1.14(b) and 1.15(d). As in all
other circumstances, the lawyer is an
agent of and in a fiduciary relationship
with the client. The Committee recog-
nizes that a lawyer's motivation for with-
holding his notes from a client may be
the result of a temptation to put the
lawyer's own interests ahead of those of
the client. The Committee believes that
allowing a lawyer to unilaterally make a
decision to withhold from a client notes
relating to the client and created in the
course of the representation of the client
because the notes may reflect the firm's
interests vis-à-vis the client undermines
the duties owed by the lawyer to the
client. In addition, withholding such
notes from a client denies the client the

790 Texas Bar Journal • September 2006

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-05-00413-CV

Raul Garcia, Appellant

v.

Commission for Lawyer Discipline, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT

NO. GN302550, HONORABLE MARK D. DAVIDSON, JUDGE PRESIDING

MEMORANDUMOPINION

This disciplinary action was brought by the Commission for Lawyer Discipline against Raul Garcia, a Texas-licensed
attorney, for violations of rules 5.04(a), 5.04(b), 5.05(b), and 7.01(a) of the Texas Disciplinary Rules of Professional
Conduct. On cross-motions for summary judgment, the district court granted summary judgment for the Commission as
to rules 5.04(a), 5.05(b), and 7.01(a), and for Garcia as to rule 5.04(b). Garcia appeals the district court's judgment
partially granting the Commission summary judgment against him and partially denying his summary judgment motions.
We affirm the district court's judgment.

BACKGROUND

At relevant times, Garcia was employed by Cristo Vive, Christian Social Services, Inc. Cristo Vive is a nonprofit
organization that, beginning in the late 1980s, provided services that have included assisting individuals with
immigration-related legal matters, translation work, and social-service referrals. It is undisputed that some of these
activities come within the statutory definition of the practice of law. See Tex. Gov't Code Ann. § 81.101(a) (West 2005).
It is also undisputed that Cristo Vive has charged fees for these legal services ranging from $250 to $450, depending on
the nature of service provided, served between 3,400 and 5,400 clients annually during the 1999-2001 tax years, and
collected fees ranging from approximately $230,000 to $619,000 annually during that period.

Cristo Vive was previously the target of a proceeding initiated by the Unauthorized Practice of Law Committee (UPLC),
See id. §§ 81.103-. 104 (West 2005). Cristo Vive ultimately entered into a consent decree with the UPLC under which
Cristo Vive "and its agents, officers, directors, servants, employees, successors and assigns" were enjoined from
engaging in a range of activities related to immigration legal services,(1) subject to the following limitation on that
prohibition:

except to the extent it is legally permitted to do so by 8 C.F.R, § [292.2](2) and except to the extent it performs any
such acts and conduct under the direction, supervision and control of a member of the State Bar of Texas.

Federal regulation permits non-profit organizations meeting certain criteria to obtain recognition or accreditation from
the Board of Immigration Appeals permitting them to designate a representative to practice before the Board or INS. 8
C.F.R. § 292.2. Criteria for recognition include "ha[ving] at its disposal adequate knowledge, information and
experience" and "mak[ing] only nominal charges ... for persons given assistance." Id, § 292.2(a). The Commission has
acknowledged that "[i]f Cristo Vive and its non-lawyer employees were recognized/accredited," state unauthorized
practice of law (UPL) limitations "would yield to this federal law." However, it is undisputed that Cristo Vive has never
succeeded in obtaining the required status.

In the aftermath of the consent decree, Cristo Vive, through its board of directors, and Garcia executed an employment
contract whereby Garcia agreed to serve as the entity's "IN-HOUSE STAFF ATTORNEY ... to supervise, direct and
control all legal services offered to the community by Cristo Vive." It is undisputed that Cristo Vive and Garcia crafted the
contract language and the structure of their relationship with the intent of coming within the second exception of the
consent decree; i.e., Cristo Vive's acts and conduct otherwise constituting UPL would be "perform[ed] . . . under the
direction, supervision and control of a member of the State Bar of Texas"--Garcia. Garcia accepted the position on June
26, 2001.

Thereafter, Garcia provided legal services to Cristo Vive's clients. Garcia worked full-time in this capacity for Cristo Vive
and did not otherwise practice law other than occasional pro bono work through Volunteer Legal Services.(3) It is
undisputed that although Cristo Vive charges fees varying with the services provided to each client, Garcia received a
salary of approximately $50,000 per year that was not tied to the type of services he provided or the number of clients
he counseled.
In June 2003, the Commission filed a disciplinary proceeding against Garcia alleging violations of the following provisions
of the Texas Disciplinary Rules of Professional Conduct:

• 5.04(a) (fee-splitting with a non-lawyer);

• 5.04(b) (forming a partnership with a non-lawyer);
• 5.05(b) (assisting a person who is not a member of the state bar in committing UPL);
• 7.01(a) (practicing in private practice under a trade name).

The Commission subsequently sought partial summary judgment that Garcia had violated each of these rules. Garcia
filed a response to the motion and separate cross-motions for traditional and "no evidence" summary judgment
regarding each of the alleged rule violations. The district court granted the motions of both the Commission and Garcia
in part and denied them in part. It rendered judgment that Garcia had violated rules 5.04(a), 5.05(b), and 7.01(a) but
had not formed a partnership with a non-lawyer in violation of rule 5.05(b). The court further adjudged that the proper
discipline for Garcia's violations was a public reprimand with an award of costs. This appeal ensued.

ANALYSIS

Garcia appeals the district court's judgment that he violated rules 5.04(a), 5.05(b) and 7.01(a). The Commission does
not appeal the district court's judgment for Garcia regarding rule 5.04(b).

Standard of review

We review the district court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.
2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). When reviewing a summary
judgment, we take as true all evidence favorable to the non-movant, and we indulge every reasonable inference and
resolve any doubts in the non-movant's favor. Valence Operating Co., 164 S.W.3d at 661; Knott, 128 S.W.3d at 215.
Summary judgment is proper when there are no disputed issues of material fact and the movant is entitled to judgment
as a matter of law. Tex. R. Civ. P. 166a(c); Shell Oil Co. v. Khan, 138 S.W.3d 288, 291 n.4 (Tex. 2004) (citing Knott, 128
S.W.3d at 215-16).

When, as here, both parties move for summary judgment on overlapping grounds and the district court grants one
motion and denies the other, we ordinarily review the summary-judgment evidence presented by both sides, determine
all questions presented, and render the judgment that the district court should have rendered. Texas Workers' Comp.
Comm'n v. Patient Advocates of Tex., 136 S.W.3d 643, 648 (Tex. 2004).(4)

Rule 5.05(b): Assisting UPL

Rule 5.05(b) provides that a lawyer shall not "assist a person who is not a member of the bar in the unauthorized
practice of law." Tex. Disciplinary R. Prof'l Conduct 5.05(b), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A
(West 2005) (Tex. State Bar R. art. X, § 9). This prohibition against assisting UPL, as well as the underlying ban on UPL
itself, is rooted in a "perceived need to protect individuals and the public from the mistakes of the untrained and the
schemes of the unscrupulous, who are not subject to the judicially imposed disciplinary standards of competence,
responsibility, and accountability." Tex. Disciplinary R. Prof'l Conduct 5.05 cmt. 1.(5)

The Commission's complaint that Garcia assisted in UPL is predicated on the UPL of Crista Vive. Crista Vive's alleged
UPL, in turn, is predicated on the acts of Garcia in providing legal services in the name of Crista Vive to its customers,
which is imputed to Crista Vive as Garcia's principal. It is undisputed that the services Garcia provided to third parties as
an attorney for Crista Vive included those constituting the practice of law, See Tex. Gov't Code Ann. § 81.101(a)(6); see
also Unauthorized Practice of Law Comm. v. Cortez, 692 S.W.2d 47, 50 (Tex. 1985) (holding that advising client as to
whether to file immigration form constitutes practice of law). To date, Texas law remains that, at least where a
corporation has no direct interest in legal work performed by a lawyer agent for the benefit of a third party, the
corporation has practiced law through that lawyer. See San Antonio Bar Ass'n v. Guardian Abstract & Title Co., 291
S.W.2d 697, 701-02 (Tex. 1956); Hexter Title & Abstract Co. v. Grievance Comm., Fifth Congressional Dist, 179 S.W.2d
946, 953-54 (Tex. 1944).(7)
To avoid the Commission's entitlement to summary judgment on this issue, Garcia relies principally on the affirmative
defense that his actions for Crista Vive were expressly permitted by that entity's consent decree with the UPLC.(8) As
noted previously, the consent decree enjoined Cristo Vive "and its agents, officers, directors, servants, employees,
successors and assigns" from a range of activities related to immigration-related legal services, subject to the following
provision:

except to the extent it is legally permitted to do so by 8 C.F.R. § [292.2] and except to the extent it performs any such
acts and conduct under the direction, supervision and control of a member of the State Bar of Texas.
Although Garcia admits that Cristo Vive has not been accredited under section 292.2, he contends that the entity
complied with the consent decree by "perform[ing] any such acts [otherwise prohibited by the decree] under the
direction, supervision and control of a member of the State Bar of Texas"-Garcia. In Garcia's view, compliance with the
second exception alone is sufficient to bring Cristo Vive in compliance with the consent decree because the decree's two
exceptions are stated in the alternative, not cumulatively. The Commission disputes Garcia's construction of the consent
decree, maintaining that Cristo Vive was required to satisfy both exceptions to the consent decree's prohibitions and that
its inability to obtain recognition under section 292.2 thus forecloses its reliance on either exception.

We need not reach the proper construction of the consent decree because we conclude that Garcia has not raised a fact
issue as to each element of any cognizable defense to which it would be relevant While he pleaded each defense,
Garcia is unclear in his summary-judgment papers and briefing about whether he is relying on former adjudication (res
judicata or collateral estoppel) or equitable estoppel. The consent decree cannot support collateral estoppel because the
issue of whether Cristo Vive's actions would have constituted UPL if supervised by an attorney was not fully and fairly
litigated. See Attorney Gen. of Tex. v. Lavan, 833 S.W.2d 952, 955 (Tex. 1992); Eagle Prop., Ltd. v. Scharbauer, 807
S.W.2d 714, 721 (Tex. 1990). Similarly, we conclude that Garcia did not raise a fact issue regarding the final
adjudication-on-the-merits element of res judicata. See Amstadt v. United States Brass Corp., 919 S.W.2d 644, 652
(Tex. 1996).

Nor can Garcia raise a fact issue regarding equitable estoppel. See City of White Settlement v. Super Wash Inc., 198
S.W.3d 770, 773 (Tex. 2006) (noting that "equitable estoppel will not lie against the Government as against private
litigants" because "legislative prerogative would be undermined if a government agent couId--through mistake, neglect,
or an intentional act-effectively repeal a law by ignoring, misrepresenting, or misinterpreting a duly enacted statute or
regulation").(9) We, accordingly, conclude that the district court did not err in granting summary judgment that Garcia
assisted Cristo Vive in the UPL, in violation of rule 5.04(b).

Rule 5.04(a): Fee splitting

Rule 5.04(a) provides, with exceptions not applicable here, that "a lawyer or law firm shall not share or promise to share
legal fees with a non-lawyer." Tex. Disciplinary R. Prof'l Conduct 5.04(a), reprinted in Tex. Gov't Code Ann., tit. 2, subtit.
G app. A (West 2005) (Tex. State Bar R. art. X, § 9). The rationale for this limitation is "to prevent solicitation by lay
persons of clients for lawyers and to avoid encouraging or assisting nonlawyers in the practice of law." Tex. Disciplinary
R. Prof'l Conduct 5.04 cmt. 1.

It is undisputed that persons served by Cristo Vive pay the entity for legal services provided by or under the supervision
of Garcia, that these revenues are commingled with other revenues, and that this common pool of revenues goes to pay
Cristo Vive's expenses-including Garcia's approximately $50,000 annual salary and the $85,000 salary of Cristo Vive
founder, Jorge Sanchez. Garcia's salary was not dependent on the amount of legal fees collected by Cristo Vive. We
agree with the Commission that these undisputed facts establish a violation of rule 5.04(a).(10) See Tex. Comm. on
Prof'l Ethics, Op. 498, 58 Tex. B.J. 38 (1995) (holding that, when a lawyer is employed by a corporation not owned
solely by licensed attorneys, "the arrangement would amount to an agreement by the lawyer to share legal fees with a
non-lawyer (the corporation) in violation of Rule 5.04(a)" if the corporation were to receive payment for the lawyer's
services).

Garcia argues that because Cristo Vive has operated at a loss, there were no "fees" capable of being "shared" in
violation of rule 5.04(a). This argument confuses fees with profits. The act that Cristo Vive has not netted a profit from
the legal services it provides does not negate the fact that it was paid for legal services that Garcia provided. Rule
5.04(a) plainly prohibits a lawyer from sharing his or her legal fees with a non-lawyer, without regard to whether the
lawyer and non-lawyer earn a profit,

Garcia also emphasizes that comments 4 and 5 to rule 5.04 contemplate situations in which it is permissible for a lawyer
to be employed by a non-lawyer organization to provide legal services to the organization's clients, and that comment 6
expressly permits a lawyer to accept employment with various types of legal-aid offices. See Tex. Disciplinary R. Prof'I
Conduct 5.04 cmts. 4-6. These comments, however, merely emphasize that a lawyer in these situations must not allow
the non-lawyer organization to direct or influence his or her professional judgment in serving the client. Id Nothing in
these comments implies that such arrangements are categorically permitted without regard to the limitations of other
rules.(11)

Accordingly, we conclude that the district court did not err in granting summary judgment that Garcia violated rule
5.04(a) by sharing legal fees with a non-lawyer.

Rule 7.01(a): Practicing under a trade name

Rule 7.01(a) provides, in part, that "[a] lawyer in private practice shall not practice under a trade name." Tex.
Disciplinary R. Prof'I Conduct 7.01(a), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (West 2005) (Tex. State
Bar R. art. X, § 9). Rule 7.01 is broadly aimed at preventing lawyers from using the names of other lawyers or entities so
as to mislead the public regarding their identity. Tex. Disciplinary R. Prof'l Conduct 7.01 cmt. 1. In this regard, 'Trade
names are considered inherently misleading." Id.

The Commission presented undisputed summary-judgment evidence indicating that Garcia provided legal services to
third patties under the name of Cristo Vive. This evidence included letters from Garcia to INS regarding, in his words,
"clients" he "represent[ed]" in INS proceedings, on "Cristo Vive for Immigrants, C.S.S., Inc." letterhead indicating Cristo
Vive's address, and signed "Raul Garcia, Attorney at Law." Similarly, Garcia's business cards were titled "Cristo Vive for
Immigrant: Christian Social Services, Inc."; indicated the entity's address, phone number, and an email address
"cristovive@ix.netcom.com"; and identified him as "Raul Garcia, ESQ., Attorney at Law/Abogado." The evidence also
indicated that Cristo Vive's signage at its offices, while indicating the presence of an "Attorney at Law," referred only to
Cristo Vive and not Garcia.

Garcia asserts that rule 7.01(a) does not apply to him because he is not "in private practice," but is "an employee of a
legal aid provider" or an in-house "corporate employee" of a non-profit. In support of this argument, Garcia points to the
supreme court's attorney-occupancy-tax exemption form, which identifies an exempt category of "employee of a
501(c)(3) or 501(c)(6) non-profit corporation whose employees are prohibited from private practice," and the state bar's
membership form, which distinguishes between a lawyer in "Private Law Practice" and "In-House/Corporate Counsel."

To construe rule 7.01(a), however, we seek the supreme court's intent as reflected in the text of the Disciplinary Rules
of Professional Responsibility. The Commission points out that the term "private practice" as used in the rules
distinguishes between governmental employment, in which a lawyer represents the public interest, and all other types of
employment, in which the lawyer represents the interests of a private party. See Tex. Disciplinary R. Prof'l Conduct 1.10,
reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (West 2005) (Tex. State Bar R. art. X, § 9). We agree with the
Commission that, from context, "private practice" in rule 7.01(a) was intended to refer to lawyers representing private
third-party clients. In light of our disposition of Garcia's other issues, we agree that the district court did not err in
granting summary judgment that he violated rule 7.01(a) by using the trade name of Cristo Vive in his representation of
private clients.

CONCLUSION

We affirm the judgment of the district court.

________________________________________ Bob Pemberton, Justice

Before Chief Justice Law, Justices Pemberton and Waldrop

Affirmed

Filed: June 29, 2007

1. These activities included:

1. Contracting with individuals to represent them in preparing, filing, or assisting with the preparation or filing of any
documents with the United States Immigration and Naturalization Service;

2. Advising individuals as to their legal rights, the advisability and time limits in the making of claims for temporary and
permanent residence, as well as U.S. citizenship;

3. Advising individuals of their rights, duties, and privileges under the law;

4. Advising individuals that they do not require the advice or services of a duly licensed attorney;

5. Soliciting legal services on behalf of another for remuneration;

6. Holding itself out as an attorney authorized to practice law in the State of Texas;

7. Holding itself out as qualified to render professional legal services of any kind;

8. Advising individuals regarding (a) which specific documents or forms might be necessary for filing with a court or
governmental agency to accomplish an individual's objective; (b) how to properly fill out such papers; (c) where to
correctly fill out such papers; or (d) how to present additional information to a court, government agency or
quasi-judicial body;

9. Employing the words "immigration services" or "immigration consultant" in relation to any business it conducts;

10. Advertising or representing in written or electronic media or in any documents ordinarily submitted to the United
States Immigration and Naturalization Service that it renders or can render "immigration services," is an "immigration
consultant," or any services relating to United States citizenship application, non-immigrant or immigrant status; or

11. Assisting any other individual in the unauthorized practice of law.

Expressly excluded from the prohibited activities were translating documents; taking identification pictures; taking and
filing Immigration and Naturalization Service (INS) fingerprint forms; teaching and testing English as a second language,
history, government, or other classes; notary services; and "providing communitary services to low income persons,"
such as referrals to social service agencies and charitable organizations regarding food, shelter, and benefits.

2. The parties agree that the Cristo Vive consent decree mistakenly refers to 8 C.F.R. § 229.1 instead of 8 C.F.R. § 292.2
and that this is purely a typographical error.

3. In his interrogatory responses, which are a part of the summary-judgment record, Garcia explained the "process by
which immigration clients are assisted by Cristo Vive" and his role in that process:

Client comes to Cristo Vive and asks for assistance. If the assistance requires legal advice they are told that only an
attorney can answer that question and that they cannot give legal advice. They are informed that there is an attorney in
the office [who] can advise them. If they want to see the attorney the attorney performs an interview, offers a legal
remedy if there is one available, and prescribes the appropriate applications. If they want to hire Cristo Vive to fill out
the prescribed applications the attorney will direct, supervise and control the service.

Garcia further described his duties as an attorney with Cristo Vive as follows:

My duties are to supervise, direct and control all services provided by the paralegals in connection with their petitions for
status as lawful permanent residents or as citizens of the United States that I may have advised. In initial consultation, I
determine what forms, if any, will achieve the result desired by the client, and advise them accordingly. If the client
hired Cristo Vive to type out forms and prepare, I direct, supervise, and control the staff in typing out the form, and
after they are typed out, I review to make sure everything was answered correctly. I then authorize the client to mail
the application [to] the [Bureau of Citizenship and Immigration Services] or [Department of State].

4. Although we construe Garcia's brief to challenge the district court's denial of both his traditional and no-evidence
summary-judgment motions, his brief argues only the grounds he asserted in his traditional motion, which are also
substantially similar to those in his response to the Commission's motion.

5. Garcia suggests that the UPL prohibition, as a barrier to market entry, may also serve to advance the purely economic
interests of attorneys against competition from other service providers, to the detriment of consumers. It is undisputed
that both the UPLC proceeding against Cristo Vive and the Commission's proceeding against Garcia were instigated by a
local immigration attorney whose client base overlaps with the population served by Cristo Vive. We must decline
Garcia's invitation to revisit the policy decisions of the legislature and supreme court that are reflected in the statutes
and rules that we are bound to apply.

6. Section 81.101(a) of the government code defines the "practice of law" as:

the preparation of a pleading or other document incident to an action or special proceeding or the management of the
action or proceeding on behalf of a client before a judge in court as well as a service rendered out of court, including the
giving of advice or the rendering of any service requiring the use of legal skill or knowledge, such as preparing a will,
contract, or other instrument, the legal effect of which under the facts and conclusions involved must be carefully
determined.

Tex. Gov't Code Ann. § 81.101(a) (West 2005). However, this definition "is not exclusive and does not deprive the
judicial branch of the power and authority under both [chapter 81 of the government code] and the adjudicated cases to
determine whether other services and acts not enumerated may constitute the practice of law." Id. § 81.101(b).

7. Cf. American Home Assurance Co., Inc. v. Unauthorized Practice of Law Comm., 121 S.W.3d 831, 839-42 (Tex.
App.--Eastland 2003, pet granted) (citing Utilities Inc. v. Montgomery, 138 S.W.2d 1062, 1064 (Tex. 1940) (suggesting
that corporate practice of law imputed from acts of lawyer agent would not constitute unauthorized practice of law if
corporation retained direct interest in matter); Unauthorized Practice of Law Comm. v. Nationwide Mut. Ins. Co., 155
S.W.3d 590, 598-599 (Tex. App.--San Antonio 2004, pet. filed) (same). The Texas Supreme Court has granted review in
American Home, and it remains pending before the court.

8. Garcia also suggests that "the Comments to the Rules of Professional Conduct expressly permit Garcia to undertake
his employment with Cristo Vive." From context, it appears that Garcia is referring to comments 4, 5, and 6 to rule 5.04,
which he suggests "contemplate situations in which a lawyer may be hired by an organization to provide legal services to
another person," including employment with legal-aid offices. See Tex. Disciplinary R. Prof'I Conduct 5.04 cmts. 4-6. As
discussed below, rule 5.04 is concerned with maintaining the professional independence of lawyers. The three comments
Garcia cites address the professional-independence concern where lawyers are hired to provide legal services to third
persons. Contrary to what Garcia suggests, the comments do not imply that such arrangements are categorically
permitted without regard to the limitations of other rules. See also Tex. Ins. Code Ann. § 961.303 (west 2006)
(non-profit legal-service corporations "must act only as an agent on behalf of its participants" and attorney contracting
to provide services for corporation "must be an independent contractor . . . and may not be an employee of the
corporation."); Touchy v. Houston Legal Found, 432 S.W.2d 690, 694-95 (Tex. 1968) (contrasting a non-profit
corporation that is "directly representing clients as an attorney by signing pleadings in its name, or by appearing for such
clients through its employees," which would constitute UPL, with "a legal aid society which acts merely as a conduit or
intermediary to bring the attorney and client together," which would not).

9. We express no opinion regarding the Commission's contention that prior judgments in proceedings brought by the
UPLC categorically cannot have claim- or issue-preclusive effect on the Commission's subsequent actions because the
UPLC and the Commission-though both instrumentalities of the supreme court's regulatory apparatus over the practice
of law in Texas—are "separate" entities.

10. The Commission aptly summarized the arrangement in its legal memorandum in support of its motion for partial
summary judgment:

Cristo Vive and Respondent have formed a relationship that is analogous to a non-lawyer (Joe) opening "Joe's Divorce
Clinic, Inc." and hiring a staff attorney to review and sign all pleadings, while the non-lawyer provides the office space
and equipment, advertises for Joe's Clinic, runs the office, and collects a salary substantially larger than that of the
attorney. Plus, the divorce clients pay their fees to Joe, who then pays all expenses, including the attorney's salary,

11. Similarly, we reject Garcia's contention that his decisions fell within a zone of professional discretion contemplated by
these comments for which he should not be subject to discipline. Tex. Disciplinary R. Prof 1 Conduct preamble ¶ 10.
 TAB 18
Worksite Enforcement
 Presented:
nd
32 Conference on Immigration and Nationality Law
October 22, 23-24, 2008
San Antonio, Texas

Worksite Enforcement - Employer's Perspective

Nicole Lawrence Ezer

Author contact information:

Nicole Lawrence Ezer
Greenberg Traurig LLP
Houston, Texas 77002

ezern@gtlaw.com
713-374-3500

"Action Rags USA — The owner of Houston-based Action Rags USA and two managers were indicted July 31,
2008, on various charges of violating federal immigration laws. The yearlong investigation revealed the
company did not properly complete the required I-9 forms to verify eligibility for employment. The investigation
also determined that the company knowingly hired illegal aliens, and reportedly paid them in cash until they were
able to purchase fraudulent identity and social security cards from local flea markets. The investigation
ultimately led to ICE agents executing a search warrant at Action Rags. During the search warrant execution, in
June 2008, ICE agents administratively arrested more than 150 illegal aliens, most from Mexico, who were
discovered working at the plant. The indictment alleges that illegal aliens made up roughly 85 percent of the
Action Rags workforce, and that the defendants engaged in acts that openly flouted federal immigration law-ICE
Worksite Enforcement Fact Sheet, August 25, 2008.

"A full-fledged Electronic Employment Verification (EEV) system has many practical and technical problems-to
say nothing of the question of whether it is appropriate for a free country-and would still fail to prevent illegal
immigration. To be done effectively, EEV would require an expensive national ID system which would greatly
impinge upon the privacy of American citizens. "The things necessary to make a system like this really
impervious to forgery and fraud would convert it from an identity system into a cradle-to-grave biometric
tracking system," writes the author. This would increase the value of committing identity fraud, and the amount
and type of information stored in the databases would expose Americans to grave security risks", Jim Harper,
Cato's director of Information Policy Studies and author of "Electronic Employment Verification: Franz Kafka's
Solution to Illegal Immigration, March 6, 2008 Cato Institute study.

Note: This paper was converted from a scanned image.

The conversion has been reviewed for accuracy; however, minor
spelling or text-conversion errors may still be present.
 I. Safe Harbors and Being Set Adrift

Approximately fifty years ago, high schools across America showed films during Health class,
with titles like "Reefer Madness", pinpointing marijuana as a "gateway drug"; a drug that would
lead the unwary user to eventually experience a world that would spin totally out of his or her
control. Although an imperfect analogy, we can note the presence of somewhat similar rationale
in ICE's focus on Social Security Administration no match (or mismatch) letters, and Form I-9.
In almost all DHS press releases and ICE Fact Sheets, references are made to the status of the
malefactors' Forms I-9s and whether SSA no-match letters were received. In addition, several
affidavits from ICE Special Agents confirm the importance of these documents during an
1
investigation; an example appears below :
"

38. As previously stated, based on my training and experience and the experience of other ICE

agents who have extensive worksite investigative experience and who conduct employer

investigations, it is common for the employer to maintain employee records to include but not

limited to: I-9 Forms with copies of supporting forms of identification used to complete them, W-4

forms, deduction of wages forms, payroll information, payroll files of all employees or contractors,

Social Security Administration Request for Employer Correction Letters ("No Match" letters),

Social Security Administration Request for Employee Information letters, ID badges issued to all

workers, and performance evaluations. It is my belief that all of these records are maintained at

ACTION RAGS located at 1225 Port Houston, Houston, Texas 77029.

39. It is requested this affidavit, along with the application and arrest warrant, be sealed.

Disclosure of these documents would jeopardize an ongoing criminal investigation.

U.S. Immigration and Customs Enforcement

"

The importance of those two "gateway documents" over the last four years to DHS, as lynchpins
of their investigations, cannot be underestimated, despite the preliminary injunction (currently in

1
June 2008 Affidavit if ICE SA Calvin W. Bradford, submitted in support of an application for a search warrant,
Action Rags.

2
place at the time of the writing of this article) that prevents the implementation of SSA no-match
legislation, meant to have had a September 14, 2007 effective date.

In June 2006, ICE proposed that regulations be passed stating that receipt of an SSA mismatch
letter or DHS written notice that an alien is unauthorized to work, constitutes constructive
knowledge by the employer that the alien is not legally employed. The proposed DHS regulation
contained language that explicitly stated that the employer's constructive knowledge pertaining
to illegal hiring arises by failing to address the information contained in the SSA no-match letter,
and described "more specifically the steps that an employer might take after receiving a no-
2
match letter, steps that DHS considers reasonable". DHS stated that failure to take the steps as
outlined in the proposed rule (i.e., review and termination if verification of work eligibility was
not provided) produces a risk to the employer that DHS will find that the employer fell outside
the DHS safe-harbor provision, and "had constructive knowledge that the employee was an
unauthorized alien and therefore, by continuing to employ the alien, violated INA section
3
274A(a)(2), 8 U.S.C. section 1324a(a)(2)." There was a 63 day review and resolution cycle
under the proposed rule, and -somewhat strangely-additional language stating "resolution of
discrepancies in a no-match letter, or other information that an employee's Social Security
number presented to an employer matches the records for the employee held by the Social
Security Administration, does not, in and of itself, demonstrate that the employees is
4
authorized to work in the United States." [emphasis mine].

When No-Match Regulations finally did pass at the end of the summer of 2007, same were
touted as ICE's attempt to assist the law-abiding employer to better understand how to handle
receipt of this no-match letter from SSA—an agency whose function is not to administer
enforcement initiatives pertaining to immigration and customs. "DHS has announced procedures
making it easier for employers to resolve "no-match" letters issued by the Social Security
Administration or letters from DHS concerning documents submitted by employees during the I-
9 process." The regulations as written contained the required steps an employer must take to fall
within DHS safe-harbor provisions. The regulations provide for a 90 day receive
information/resolve with employee/release unverified employee cycle for the employer. Refusing
to follow these procedures exposes the employer to the risk of prosecution and fines.

In brief, the presently enjoined 2007 No Match Verification cycle works thusly:

1. No Match Letter or DHS Notice Received. Employer is considered to have information

that certain employee may be without proper work authorization.

2. Day 1-30, employer must review internal company records to eliminate the possibility of
company record-keeping error. If the company's records are incorrect, they must notify
SSA that the correction has been made and that the internal company records have been
fixed. Verification must be recorded and retained with Form I-9. If verification is not
possible, the employee must be informed and told to resolve discrepancy with SSA.

2
DHS Docket No. ICEB-2006-0004, Notice of Federal Rulemaking
3
Id.
4
Id.

3
 3. Day 30-90, employer must advise the employee that the discrepancy must be resolved
with SSA or DHS within 90 days of receiving SSA or DHS correspondence. Such
employee notification must be documented and retained by the employer.

4. Day 90-93, employer must either complete and retain a new Form I-9 to resolve the
discrepancy, using information that in no way contains the SS number that is in dispute,
requiring photo identification, or terminate the employee.

5. Direct information/first-hand knowledge that the employee is unauthorized to work in the

United States does not require the employer to take steps 1-4, as the former is considered
to be actual knowledge, and the knowing or continued hire of an alien unauthorized to
work in the United States is prohibited by law.

Specifically addressing the language regarding receipt of SSA no-match letters and constructive
knowledge on the part of the employer that was included in the regulation, DHS/ICE argued that
the definition of constructive knowledge had not been expanded; rather it was finally clarified for
those employers who were diligently seeking to adhere to IRCA and required additional
guidance. What this language does, the ICE FAQs on this topic states, is clarify for everyone,
when the employer could rely on safe-harbor protection. If the employer followed the steps
outlined in the regulation, in a timely fashion, it could avoid the concern that a SSA no-match
letter "could be used to support an allegation that the employer had constructive knowledge that
5
an employee was not authorized to work in the United States." The ensuing lawsuits from the
ACLU and a coalition of labor and immigrants' rights groups, did not appear to concur that this
legislation was a piece of much-needed aid for the employer; rather, that the legislation would
engender a rash of hasty firings and refusals to hire foreign workers, or persons who appeared
foreign. In addition, the triggering of a 90-93-day cycle would place an overwhelming burden
on employers to receive, review and resolve matters pertaining to, in some cases, huge
workforces, without proper federal support by way of reliable information in the SSA and DHS
databases.

The attention that has been given to Social Security No-Match Letters during the last few years is
likely more attention that has been paid to them since their original issuance after IRCA was
enacted in 1986. Initially, no-match letters from the Social Security Administration ("SSA")
were viewed by many as information from the SSA that your employee's Social Security
number, submitted on Form W-2, does not match SSA records. This information was primarily
perceived as an indication of probable SSA difficulties in matching the correct allocation of
6
benefits to the correct individual in the future. At that time, the agency went to great lengths to
warn the employer that solely having an employee's name appear on a no-match letter was not a
ground for firing the employee. Indeed, for years it was good advice to the employer to direct
him to inform the employee of the SSA no-match letter, and tell him or her to get down to the
local office of the SSA, and sort out the records mix-up. Some employers were better at
addressing and resolving this than others. Employers have had to come to terms with the fact

5
http://faq.ice.gov/cgi-bin/ice_faq.cfg/php/enduser/std_alp.php?p_sid=6lbfqOli
6
Testimony of James B. Lockhart III before the House Committee on Ways and Means, Subcommittee on Social
Security, Subcommittee on Oversight Hearing on Strengthening employer Wage Reporting, February 16, 2006.

4
that insofar as DHS/ICE is concerned, illegal hiring is linked, in a meaningful way, to
documentation provided by the Social Security Administration. Prior to the last few years, the
issue insofar as a DHS audit was concerned, was Form I-9 and payroll coordination. Now, it
appears to be Form I-9 and SSA no-match letter coordination as well. This poses not a few
problems, not the least of which is the fact that some individuals simply do not produce a Social
7
Security card during the I-9 process.

As of the date of this writing, there is a preliminary injunction in effect prohibiting the SSA from
sending out the new no-match letters that would trigger the earlier hapless No-Match regulation.
We wait with bated breath, at this time, knowing that ICE went back to the drawing board to
craft new regulations, despite challenges to the adequacy of the regulatory flexibility analysis
(this APA compliance challenge was left largely unresolved at the time that the rule was
published in 2007, one salient omission was the impact such a rule would have on small
businesses), and the fact that jurisdictional issues between the Department of Justice and the
Department of Labor remained unresolved. Further concern was raised by AILA, that ICE
should not implement its proposal without carefully consulting SSA, the Office of Special
Counsel for Immigration Related Unfair Employment Practices ("OSC") and the Internal
Revenue Service ("IRS"), which have given employers conflicting guidance on responding to a
8
no-match letter.

If the rule is published in the Federal Register in the coming days, the court will have to lift the
preliminary injunction in order for the 30 day final rule clock to begin. While a hearing on the
preliminary injunction matter will have to be held within 10 days, we cannot guarantee that the
outcome will take into account the issues raised by opponents to the 2007 rule. Thirty days after
the rule publication, if the rule will become final, no-match letters will go out. And then, the
games begin.

II. Crime & Punishment 2008

Heightened enforcement of the 1986 IRCA laws following a relatively lax couple of decades, has
reminded employers of the time-honored rule: when you gamble with the house; the house
always wins. Or, at least the house only lets you win what it wants you to win. In the last year
and a half, much has been written about the Department of Homeland Security's shoring up of
the nations' critical infrastructure, and the Secure Border Initiative announced by Michael
Chertoff, that heralded DHS' commencement of "serious business" when it comes to holding
companies liable for the hiring of illegal workers. Following the big April 2006 splash with the
Wal-Mart eleven million dollar settlement, Immigrations and Customs Enforcement ("ICE")
wrapped up that year with the multi-site raids at Swift & Company in December. Subsequent
enforcement actions up to the date of this writing have forced employers and their attorneys to
quickly cobble together plans of action for the immediate and ongoing management of risk, in
the face of organized and focused efforts on the part of the government to disable businesses that
employ illegal workers as a standard practice.

7
E-Verify employers are required to request the social security card; other employers cannot require same.
8
AILA's comments to No-Match Letter, http://www.aila.org/content/default.aspx?docid=26469

5
The accomplishments that ICE has published on its website are many, including those listed
below, spanning October 2007 through August 2008:

• As of August, ICE made more than 1,000 criminal arrests tied to worksite enforcement
investigations.
• Of the 1,022 individuals criminally arrested, 116 are owners, managers, supervisors or
human resources employees facing charges including harboring or knowingly hiring
illegal aliens. The remaining workers criminally arrested are facing charges including
aggravated identity theft and Social Security fraud.
• ICE has also made more than 3,900 administrative arrests for immigration violations
9
during worksite enforcement operations.

Once it became apparent to the employers that DHS/ICE had blown past an enforcement model
that relied almost exclusively on administrative hearings and fines and inconsistent enforcement,
the next surprise was the lack of confidentiality regarding the raids, the settlement amounts and
the significant penalties demanded by the federal government. As the cost of doing business rose
astronomically for the employers who were investigated by ICE, companies within targeted
industries appeared to respond one of two ways: "lightning can't strike twice in the same place"
or "how can we stop this from happening to us?" The response to either approach is sobering.
Lightning can strike as many times as ICE says it will, and, an employer can't prevent an ICE
investigation, if ICE is determined to investigate. The employer can only try to understand the
evolution of the enforcement models, obey the law and to have a plan of action for before, during
and after a "raid".

The effects of ICE's enhanced worksite enforcement program are many, including the costs of
compliance for companies. There are costs inherent to responding to audits and worksite
enforcement investigations (generally not a common company budgetary line item); risks of
costly administrative, civil and criminal penalties; negative publicity; decimation of the
workforce; facility shut down; and economic and human effects on companies and communities
that have been felt across the nation over the past few years. ICE has publicly and repeatedly
conceded that it does focus its investigations on companies with personnel in ports of entry and
critical infrastructure areas that are vulnerable to terrorism, and, as time goes on, has become
more comfortable at times admitting that it does cast a more dubious eye at construction
companies, manufacturing companies, retailers, the hospitality industry, meatpacking companies,
and staffing companies.

In addition, there have been a number of State and local laws that have proliferated in the wake
of heightened IRCA-enforcement, further complicating the worksite enforcement landscape. In
some cases, the state measures are structured to supplement federal penalties. These states, such
as Florida, Nevada, and Virginia, have not authorized their state officials to investigate violations
of the law, but they will impose their own sanctions once the federal government prosecutes
someone for employing an unauthorized worker. In states such as Arizona, Mississippi, and
South Carolina, lawmakers have empowered their own officials with the authority to investigate
whether an employer is violating the law, and if so, to sanction the employer. Some states, such
as Mississippi, have also created a new private cause of action for U.S. citizen or permanent

9
http://www.ice.gov/pi/news/factsheets/worksite.htm

6
resident employees who are terminated while the employer retains an employee who the
employing entity knows, or reasonably should have known, is an unauthorized worker. In 2008,
state legislatures in 17 states introduced legislation that would mandate the use of E-Verify for at
10
least some employers. While Illinois has effectively prohibited employers "from enrolling in
any Employment Eligibility Verification System, including the Basic Pilot Program, several
other states- Arizona, Colorado, Georgia, Mississippi, Oklahoma, Rhode Island, South Carolina
and Utah have required its use by the states' employers. State legislation of immigration is a
strong indictment by the citizenry of the federal government's perceived failures in this area.
Finally, there seems to be an overall sentiment amongst employers that the government has
required them to undertake immigration enforcement in the private sector, without adequate
relief from the government itself by way of federal data correction and verification, and a
workable guest worker program. Unions and large private sector employers, who initially turned
the corner and supported comprehensive immigration reform, are vocal about any solution that
further burdens the employer, further obligates and makes liable the employer, and does not
forge a path to a solution.

III. The Cost of Doing Business

One of the most common and lengthy discussions that employers and their lawyers are having
now, focuses on the criminal charges brought by ICE following a worksite investigation of a
particular company. What is challenging about representing an employer in these times is the
simple fact that no company wants to view itself as an alleged criminal. The problem with that
mindset is this: the government isn't nearly as squeamish about investigating and later accusing a
company of criminal activity, and companies who don't prepare for this possibility are like
companies who delay creating hurricane and flood preparedness plans because "it's always dry
here".

Perhaps the most useful statement I have heard in the course of one of these discussions was
made by my colleague, Jennifer Moore, a former Assistant United States Attorney for the United
States Attorney's Office for the Southern District of New York, Criminal Division. She said,
"You have no idea what the government thinks you have done." Indeed, when reviewing the list
of criminal charges levied by the government at employers, one notes that the list is an
11
impressive, and growing one: encouraging and inducing alien smuggling ; use of fraudulent
12 13 14
documents ; identity theft and aggravated identity theft ; social security number misuse ; false
15 16 17
statements ; tax fraud; money laundering; RICO violations; aiding and abetting ; conspiracy ;
18
human trafficking; harboring, wage and hour violations, and transporting. In the last few years,

10
Gary Endelman and Cynthia Lange, The "Perils of Preemption:" Immigration and the
Federalist Paradox. Benders Immigration Daily, Oct. 1, 2008.
11
18 U . S . C . § 1324(a)(1)(iv),...
12
18 U.S.C, section 1546(b)
13
18 U.S.C, section 1028, 1028A
14
42 U.S.C, section 408
15
18 U.S.C, section 1001
16
18 U.S.C, section 2
17
18 U.S.C, section 371
18
8 U.S.C, section 1324(a)(2)(vtii)

7
DHS has expanded its list of participating partners in the worksite enforcement initiatives it is
conducting. In addition to the usual suspects, the U.S. Attorney General's Office, the
Department of Labor ( D O L ) , the Social Security Administration (SSA), Office of the Chief
Administrative Hearing Officer (OCAHO), Health and Human Services (HHS) and the Office of
Federal Contract Compliance Programs (OFCCP), there is the Department of Defense's Criminal
Investigative Service, State Insurance Fraud Bureaus, U.S. Coast Guard, local law enforcement
agencies, and local vendors.

INA section 287(g) authorizes the DHS Secretary to enter into agreements with state and local
law enforcement agencies, permitting designated officers to perform immigration law
enforcement functions, pursuant to a Memorandum of Agreement ("MOA"), provided that the
local law enforcement officers receive training and function under the supervision of sworn ICE
19
officers. The training is sponsored by ICE and designed to certify local law enforcement
officers to assist with immigration enforcement activities. ICE offers a four-week training
program now held at the Federal Law Enforcement Training Center (FLETC) ICE Academy
(ICEA) in Charleston, SC conducted by certified instructors. The program is credited for
identifying more than 70,000 (since January 2006) individuals, mostly in jails, who are suspected
of being in the country illegally. There are currently 63 active 287(g) MOA's, and more than
20
840 officers have been trained and certified thru the 287(g) program. In Texas, the following
21
law enforcement agencies have agreed to participate:

TX Carrollton Police Department JEO 8/12/2008

TX Farmers Branch Police Dept. TFO 7/8/2008
TX Harris County Sheriff's Office JEO 7/20/2008

The powers of DHS during an investigative action include, but are not limited to, wiretapping
(investigation and/or prosecution of HV Connect), use of informants and cooperative witnesses
(investigation and/or prosecution of Action Rags) interrogation, seizure, detention and
questioning (investigation and/or prosecution of Swift & Company), warrantless arrest, arrest for
civil and criminal violations, seizure of real property (investigation and/or prosecution of
Kawasaki Sushi), financial assets and documentation, seizure of payroll and employment records
(investigation and/or prosecution of IFCO case), forcing employer to create and implement
ongoing worksite employment verification system (Wal-Mart settlement; investigation and/or
prosecution of Kentucky Limited Liability Corporations), forcing payment of restitution by
employer, seeking of maximum criminal penalties (investigation and prosecution of El Polio
Rico Restaurant).

19
ICE Fact Sheet, September 6, 2007, "Delegation of Immigration Authority Section 287(g) Immigration and
Nationality Act". http://www.ice.gov/pi/news/factsheets/070906factshetts287gprogover.htm
20
http://www.ice.gov/partners/287g/section287_g.htm?searchstring=MOA
2 1
Id.

8
 SSA and Enforcement.

It may surprise newer and non-immigration practitioners to know that the SSA is not an
enforcement agency. The SSA acronym and the ICE acronym have been linked though the no-
match/mis- match letter language so much in recent times, one might think that SSA has a sort of
"bag-man" status, since it is this agency that appears to trigger the whole ICE enforcement
machine, once the SSA mismatch letters are issued. The intent of the no-match letter for SSA is
to "improve the accuracy of wage reporting and the accuracy of Social Security benefits payable
to eligible wage earners and their families. SSA also requests the employer to submit corrected
22
W-2s so that future reports will be accurate".

SSNs are used primarily to track payment and determine eligibility for and the amount of SSA
benefits to which an individual is entitled. The card itself was not meant to be a personal identity
document. An employer is not required to inspect an employee's SSN Card, and both the IRS
and SSA make provision for employers to file employment tax returns for employees that do not
possess SSNs.

Briefly, following IRCA, three IIRIRA employment verification pilot programs were launched.
Web Basic Pilot commenced in July 2004, and is at this time a voluntary program, offered by
USCIS, and is an electronic employment verification system for employers. Under Web Basic
Pilot, following completion of registration and a signed MOU with USCIS and SSA, and on-line
training, the employer may use Web Basic Pilot as part of its hiring program. The employer
submits SSN, name and date of birth, citizenship and alien status (and if relevant an A-number)
from the USCIS Form I-9 that is completed for all newly hired employees. This information is
submitted over a secure connection to SSA, and then, if necessary, through USCIS. Upon
receipt of the information, SSA checks the data against the SSA database. If there's not a match
a tentative non-conformation finding is issued by SSA. If the person claims to be a United States
citizen and SSA data matches the data submitted then work authorization is considered
confirmed within the system and the employer is notified. For non-citizens, SSA database
information that matches the employer data and can be immediately confirmed is returned as a
confirmation of work authorization to the employer. Failing that, an electronic Immigration
Status Verifier checks additional information available in USCIS databases to verify work
authorization and provides an electronic response to the employer within 24 hours. If the
Immigration Status Verifier cannot confirm work authorization, USCIS issues a tentative non-
confirmation finding. Employers are required to inform affected employees in writing of the
finding and the right to contest the finding.

As we move towards mandatory enrollment by the employer in an employment verification

system, this component will have far-reaching implications, if EEVS data is used to establish
patterns through employer use or perceived misuse. (Certainly, USCIS' original concerns about
sharing EEVS data with ICE dissipates if there is mandatory employer enrollment in EEVS

22
Testimony of James B. Lockhart III before the House Committee on Ways and Means, Subcommittee on Social
Security, Subcommittee on Oversight Hearing on Strengthening employer Wage Reporting, February 16, 2006.

9
programs.) The Congress recently passed legislation giving a short-term extension to the E-
Verify program, through March 6, 2009.

Under the current (enjoined) regulations, even if an employer receives the information that an
employee is not authorized to work, or may not be authorized to work (tentative non-
confirmation finding), the employer will not be afforded any safe harbor protection, because the
information did not come to the employer through a SSA no match letter or a Notice of Suspect
Document from DHS/ICE. ICE is very clear about this in its SSA Mismatch FAQs, writing,
"Safe harbor procedures do not apply to information employers receive from SSA through
sources other than the No-Match Letters...Nor does this rule extend to information received
24
through participation in the USCIS Basic Pilot Program or ICE's IMAGE program..." DHS is
painfully careful to warn the employer that SSA no match data and the safe harbor that may be
engendered by the careful adherence to the regulations, is not a zone of safety for all ills,
25
particularly those that stem from document fraud or identity theft. As Swift & Company
learned, even a company enrolled in Basic Pilot remains adrift and vulnerable when it comes to
those charges.

As it pertains to interagency information sharing, attorneys have long suspected that in the
course of an investigation, the agencies will simply respond to casual, simple written requests for
information from ICE. In response to a comment submitted during the notice and comment
period prior to the August 2007 passage of the new regulations, regarding DHS seeking access to
26
prohibited tax information, the August 15, 2007 Notes to the Federal Register clearly state that
while Section 6103 of the Internal Revenue Code prohibits the provision of tax returns or tax
information to outside agencies except under certain circumstances, DHS can also require the
employer, as the originator of the information, to provide same through DHS demand in a civil,
criminal or regulatory proceeding. DHS therefore does not consider SSA no match information
to be tantamount to tax information, and in its opinion, the demand from DHS that the employer
produce SSA no match letters during an investigation does not violate Section 6103 of the tax
code. In My 2006, a Report on Immigration Enforcement from the GAO stated that "ICE has
no direct role in monitoring employer use of the Basic Pilot Program and does not have direct
access to program information, which is maintained by USCIS. ICE officials noted that, in a few
cases, they have requested and received pilot program data from USCIS on specific employers
who participate in the program and are under ICE investigation. ICE officials told the GAO that
program data could indicate cases in which employers do not follow program requirements and
therefore would help ICE better target its worksite enforcement efforts towards those employers.

...And the Error of Its Ways

23
On September 27, 2008, the US Senate voted 78-12 (with one member voting "present") to approve a more
than $630 billion continuing resolution (H.R. 2638) that would fund at current levels the budgets of all federal
agencies until March 6, 2009. As part of the CR, the Senate extended the federal government's E-Verify program
through March 6, 2009.
2 4
Id at 8
25
June 2006 GAO Report stated that Basic Pilot is unable to detect identity fraud and delays within DHS to timely
update information were noted weaknesses in the program.
26
Federal Register, Vol. 72, No. 157, August 15, 2007, Final Rule, "Safe Harbor Procedures for Employers Who
Receive No Match Letter".

10
It has been argued for years that that SSA is not a good extension of the enforcement arm of the
Immigration Service. According to the Office of the Inspector General in SSA, 12.7 million of
the 17.8 million discrepancies in SSA's database—more than 70%—belong to native born U.S.
citizens. Up to an additional 12% are SSA discrepancies that occur because of lack of resolution
27
in SSA's system after foreign nationals complete the naturalization process. Forced by DHS to

27
According to the SSA's Office of the Inspector General in 2007, it was estimated that 1 in every 25 new hires run
through the E-Verify program, would receive a tentative non-conformation. At 55 million new hires a year, this rate
produces about 11,000 tentative non-confirmations per work-day in the United States. In addition, 12.7 million of
the 17.8 million discrepancies in SSA's database—more than 70%--belong to native born U.S. citizens. Up to an
additional 12% are SSA discrepancies that occur because of lack of resolution in SSA's system after foreign
nationals complete the naturalization process. Due to database errors, foreign-born lawful workers (including
those who have become U.S. citizens) are 30 times more likely than native-born U.S. citizens to be incorrectly
identified as not authorized for employment. Foreign-born U.S. citizens fee! the greatest impact, with almost 10
percent initially being told that they are not authorized to work (versus 0.1 percent for native-born U.S. citizens). In
addition, SSA has implemented stricter evidentiary standards for SSN card applicants by revising the list of
acceptable documents that are required for proof of identity. Acceptable identification is evaluated on a case-by-
case basis according to age and circumstances. Documents must have been issued after the birth record and be
current and unexpired. And, although birth records are not considered proof of identity, new regulations require
that verification of any birth record submitted by a U.S.-born individual age one or older when applying for an SSN,
must be verified through the State Bureau of Vital Statistics (unless submitted through the Enumeration At Birth
process). This change in the list of acceptable documents at the DHS and the SSA levels will likely require passport
applications by numerous citizens, in order to resolve an E-Verify non-conformation finding. Prior increases in
passport applications at the DOS level in late 2007 and in 2008, resulted in delays and an inability by DOS to meet
its deadlines, as it became evident that it became apparent that DHS and DOS did not have time for efficient and
effective implementation before enactment of the WHTI.

Slightly over 20% of U.S. citizens have passports. DOS saw an increase in passport demand from a base level of 7
million passports issued in 2003 to more than 17 million issuances in fiscal year 2007. The 2007 GAO Report on the
cost of implementation of the WHTI and the cost borne by the DOS to implement this program revealed that the
total DOS most recent cost of service study, which estimated passport execution costs, lacked documentation of
key decisions, requiring that a new study be performed. DOS was not able to provide documentation of critical
components of the study's estimated execution costs calculation. For example, consular officials could not provide
details regarding the survey of consular officers used to estimate the time it takes to execute a passport, including
the survey's design or how the results were used to arrive at the final estimated time spent on passport execution-
-a key driver of costs. One of the cost drivers is the time and training of a DOS agent at a passport facility, who is
required to, among other things, verifying that the applicant's identification documents (driver's license, for
27
example) and photo are authentic and match the person standing before the agent. In a cycle whereby the
applicant has already undergone a document verification challenge, the citizen will have to satisfy an additional
agency with a separate set of requirements, of his or her eligibility for a document in order to verify work eligibility
within a short time- most likely at a post office, since those comprise approximately 2/3 of all passport facilities,
executing 72% of all first time applications during the past FY. In its most recent report, the GAO found that DOS
lacks a program for oversight (training of agents, quality control, etc.) of passport acceptance facilities and made a
number of recommendations to improve this oversight.

In addition, the GAO was troubled by the fact that the timing associated with passport execution was not
transparent enough to satisfy the GAO. Although later refuted by the GAO because of flawed data collection, the
time estimates gathered at the post offices were used as a proxy (by DOS in determining its budget and the
amount that it would pay for passport execution), concluding that it took 7.63 minutes for each passport
execution. Budgetary matters aside, were the U.S. citizen new hires receiving tentative non-conformation to
decide that passport application is the swiftest method of resolution, the sheer volume of first-time passport
applications would pose an enormous burden on the agency and its contractors.

11
come to terms with its limitations as a police-tool, the SSA was initially designed as a data
keeper, and a bean-counter, never quite turning on the sexier aspect of its own personality until
the Form I-9 and its no match letters combined to reveal a grievous flaw where there hadn't
previously been much of an enforcement problem. As an additional complication, neither the
Web Basic Pilot process nor Form I-9 is meant to substantially improve employers' ability to
detect fraud when borrowed or stolen documents with information that could reasonably relate to
the worker presenting them are used to prove work authorization nor when employers do not
check work authorization documents carefully either by design or because of lax procedures.
Nor can the Web Basic Pilot program detect counterfeit documents that contain information
about work-authorized persons. USCIS has stated that a new USCIS unit will monitor
employers' use of the system and conduct trend analysis to detect potential fraud and
discrimination; hence, the EEVS system will become a tool whereby DHS can better identify
28
employer fraud and misuse, resulting in a referral to an ICE worksite enforcement investigator.

The SSA itself is not without resources to detect and deter fraud. The role of the SSA in
identifying and reporting fraudulent activities related to the SS program was addressed by James
B. Lockhart III in his 2006 testimony before the House of Representatives. When fraudulent
activity is reported to an SSA employee, the matter is documented and reported to the Agency's
Inspector General. The results of further investigation and findings are presented to the local
U.S. Attorney, who decides whether to bring charges. "SSA currently cooperates with many
agencies, including the Internal Revenue Service, the Departments of Justice, Homeland
Security, State Health and Human Services, Education, Treasury, the Federal Trade Commission.
We share and verify information with these agencies and we work together to improve the
interfaces between our business processes. We are working with many agencies in an
Interagency Identity Theft Working Group to broaden and strengthen the cooperation among
Federal agencies. The Working Group is developing a summary of Federal agencies' activities
to combat identity theft. It will facilitate sharing of best practices and expertise and will result in
the development of new approaches to combat identity theft and solutions to common
29
challenges."

Remind Me—What does SSA really do?

Consider this. The Social Security program is the largest domestic social program in the world.
The Old-Age, Survivors, and Disability Insurance Trust Funds paid out over $575 billion in
benefits to over 49 million beneficiaries in 2007. The size and scope of the program represent
enormous stewardship challenges for SSA. The Agency has core, ongoing stewardship efforts
that are critical to the elimination of improper payments. The elimination of improper payments
in the SSI program is heavily dependent on the availability of resources to conduct core
stewardship functions, particularly redeterminations and continuing disability reviews. Staffing
to address these core responsibilities has been impacted by layoffs in recent years, and by SSA's

Source: GAO-08-63, 'State Department: Transparent Cost Estimates Needed to Support Passport Execution Fee
Decisions:' November 2, 2007

28
April 24, 2007 Statement of DD USCIS Jock Scharfen before the House Judiciary Subcommittee on Immigration
regarding a hearing on "Problems in the Current Employment Verification and Worksite Enforcement System".
2 9
Id at 10
30
SSA Annual Performance Plan for Fiscal Year 2009 and Revised Final Performance Plan for Fiscal Year 2008
12
performance of work in support of other agencies, such as DHS and Medicare program
administration.

The Fiscal Year 2009 Budget press statement issued by the SSA itself states that it is facing "an
avalanche of retirement and disability claims at the same time that [it] must address large
31
backlogs due to years of increasing workloads and limited resources". The SSA describes its
core programs as Old-Age Survivors and Disability Insurance (OASDI), Supplemental Security
Income (SSI), certain health insurance and Medicare prescription drug functions and the Special
Benefits for Certain World War II Veterans. The Limitation on Expenses (LAE) appropriation
language in the budget provides the SSA with funds needed to administer these programs.
Increased demand for the core services, and new responsibilities required a request in FY2008
for an additional $148 million to address the disability hearings backlog and to address the
service crisis within the agency.

SSA began FY 2008 with 135,160 cases which are or will become 900 days old in FY 2008.
The FY 2009 LAE request is for $10.327 billion (with a total administrative budget of $10.460
billion). During FY2009, the SSA intends to reduce the hearing backlog by nearly 70,000 cases,
process over 200,000 more retirement and survivors' claims, and handle 4 million more 800-
number calls compared to FY2008. One of the greatest challenges now facing SSA is staffing.
By 2015, almost 54% of current employees will be eligible for retirement. As a result, while
workloads increase due to the disability and retirement needs of the baby boomers, the Agency is
in danger of losing that segment of its workforce that is most experienced and knowledgeable
about the administration of its programs. Layoffs nationwide, and repeated threats of SSA office
closures have plagued towns in New York and Kansas, as the SSA attempted to resolve its
staffing crises by limiting public office hours. SSA estimated in June 2007 that making E-Verify
32
mandatory would result in 3.6 million extra office visits or calls to SSA field offices per year ,
potentially crippling SSA's service capabilities and negating any progress in addressing the
33
disability backlog.

What does that have to do with E-Verify?

Now, consider this. Approximately 80,000 employers currently participate in E-Verify, with up
to 1,000 employers per week using the program to verify the employment eligibility of
34
prospective new employees. According to SSA, employers were expected to conduct about 6
million E-Verify queries in fiscal year 2008. CBO estimates that in 2009 the number of queries
will grow to 11 million, reaching nearly 23 million in 2013. Most of that increase will result
from new employers voluntarily joining the program. The remaining growth, CBO expects, will
result from state laws requiring certain state employers to participate, a federal regulation

31
"Message from the Commissioner", SSA FY 2009 Press Release
32
Frederick G. Streckewald, Assistant Deputy Comm'r, Disability & Income Sec. Programs, Soc. Sec. Admin.,
Testimony at a Hearing on Employment Eligibility Verification Systems Before Subcommittee on Social Security,
th
Committee on Ways and Means, U.S. House of Representatives, 110 Cong. June 7, 2007
33
Richard Warinskey, Testimony before the U.S. Senate Subcommittee on Finance: Funding Social Security's
Administrative Costs: Will the Budget Meet the Mission? (National Council of Social Security Management
Associations, Inc., May 23, 2007)
34
SSA Annual Performance Plan for Fiscal Year 2009 and Revised Final Performance Plan for Fiscal Year 2008

13
requiring federal contractors to participate, and a surge in hiring by the U.S. Census Bureau for
the 2010 census.

The information submitted to E-Verify by the employer is first sent to SSA to verify that the
SSN, name, and date of birth match information in SSA's records. For individuals alleging U.S.
citizenship, SSA confirms citizenship status, thereby confirming work authorization status. For
non-citizens, if alleged data matches SSA records, DHS determines the current work
authorization status and notifies the employer of the results. Approximately 92% of these initial
verification queries are confirmed within seconds. "...SSA's most labor-intensive responsibility
with E-Verify arises when there is a discrepancy between SSA's record and data submitted by an
employer. When this occurs, the employee may contest the resulting non-confirmation response
by contacting SSA to resolve the issue. We expect that participation in E-Verify will continue to
35
rise." In October 2005, procedures for verifying noncitizens in the Web Basic Pilot Program
were changed. Prior to the change, SSA was able to confirm work authorization for noncitizens
when their records indicated that the noncitizen had permanent work authorization. Subsequent
to the change, there was a marked increase in the tentative non-confirmation rate for
36
noncitizens.

The GAO's 2008 report regarding the cost of E-Verify stated: "Although DHS has not prepared
official cost figures, USCIS officials estimated that a mandatory E-Verify program could cost a
total of about $765 million for fiscal years 2009 through 2012 if only newly hired employees are
queried through the program and about $838 million over the same 4-year period if both newly
hired and current employees are queried. USCIS has estimated that it would need additional staff
for a mandatory E-Verify program, but was not yet able to provide estimates for its staffing
needs. SSA has estimated that implementation of a mandatory E-Verify program would cost a
total of about $281 million and require hiring 700 new employees for a total of 2,325 additional
workyears for fiscal years 2009 through 2013. USCIS and SSA are exploring options to reduce
37
delays and improve efficiency in the E-Verify process . The cost to SSA of expansion of
personnel and programmatic and systems enhancements "would be driven by the field offices'
38
increased workload required to resolve SSA tentative non confirmations."

According to H.R. 6633 (passed in the House, and later passed in September 2008 as HR 2638
Continuing Resolution in the Senate), CBO estimates increased discretionary costs for SSA by
$61 million over the 2009-2013 period. (Those costs would be reimbursed by DHS.) Based on
information from SSA regarding information-technology enhancements needed to keep pace
with the growth in the use of E-Verify, CBO estimates that maintaining and upgrading
information systems would cost $38 million over the next five years. Additional costs would

35
Id.
36
Id.
37
Employment Verification: Challenges Exist in Implementing a Mandatory Electronic Employment Verification
System, GAO-08-895T June 10, 2008. This statement is based on GAO's products issued from August 2005 through
June 2007 and updated information obtained from DHS and SSA in April 2008. The study analyzed data on
employer use, E-Verify guidance, and other reports on the employment verification process, as well as legislative
proposals and regulations.
38
Richard M. Stana, Dir. Homeland Sec. & Justice Issues, GAO, Testimony at a Hearing on Employment Eligibility
th
Verification Before the Subcom. on Social Sec., H. Comm. On Ways & Means, 110 Cong., 3 (June 7, 2007)

14
stem from new employees contacting SSA to resolve cases where E-Verify mistakenly classifies
the employee as ineligible to work. CBO expects that about 1 percent of queries in 2009 would
result in an employee contacting SSA to update or correct their personal data and prove they are
eligible to work. (CBO expects that contact rate would fall to 0.75 percent by 2013 because of
data improvements and individuals' past efforts to correct SSA's data.) Based on information
from SSA, CBO expects the average cost per contact to increase from $36 in 2009 to nearly $40
in 2013. Thus, we estimate that resolving such situations would cost SSA $23 million over the
39
2009-2013 period.

Currently, about 8% of queries require manual verification by DHS or SSA. Employers who
participated in the Westat study complained that in some locations SSA offices were over 50
miles away, making in-person resolution difficult. While the SSA's FY2009 budget and
strategic planning initiatives include plans to expand the agency's use of video technology,
nearly all documentation for E-Verify purposes requires an in-person review and verification,
thereby excluding E-Verify from the agency's "virtual SSA" business model for the foreseeable
future.

The SSA itself concedes that the database contains inaccurate information that provides false
results and increases the burden on the stakeholders during the resolution process. For every 100
queries submitted to the E-Verify system, SSA field offices or phone representatives are
4 0
contacted three t i m e s . With a more than 4 . 1 % rate of error, if each of the 5.9 million
employers nationwide used E-Verify for a different employee, then the error rate suggests that
more than 240,000 eligible workers would receive incorrect "no-match" designations. Even a
41
one per cent failure rate would affect millions of people.

SSA has stated in its FY2009 Executive Summary that it continues to work with DHS to SSA
improve the E-Verify operation and that it has also begun to lay the groundwork to increase its
capacity to handle substantially heavier volumes of verification transactions. Although, SSA and
DHS claim to be working on initiatives to reduce the number of "Tentative Non-Confirmation"
messages being generated to employers about employees who are ultimately determined to be
authorized to work, it remains unclear exactly which of these rolling initiatives will be in place
prior to further E-Verify expansion. Notwithstanding the interagency commitment to ongoing
improvement of this flawed system, a very real, present burden remains for the stakeholders.

The anticipated increase in the burden on each SSA office following increased implementation
of E-Verify nationwide (requiring SSA employees perform time-consuming manual reviews of
each case using a database that SSA concedes has a 4 . 1 % error rate) is additionally troubling in
42
light of the fact that to date, it appears that no case managers have been assigned at either D H S

39
H.R. 6633
40
Frederick G. Streckewald, Assistant Deputy Comm'r, Disability & Income Sec. Programs, Soc. Sec. Admin.,
Testimony at a Hearing on Employment Eligibility Verification Systems Before Subcommittee on Social Security,
th
Committee on Ways and Means, U.S. House of Representatives, 110 Cong. June 7, 2007
41
Electronic Privacy Information Center, Spotlight on Surveillance, E-Verify System: DHS Changes Name But
Problems Remain for U.S. Workers, July 2007.
4 2
USCIS has estimated that it would need additional staff for a mandatory E-Verify program, but was not yet able
to provide estimates for its staffing needs. Id. at Note 35.

15
or SSA specifically to guide E-Verify participants through the process, and that final non-
confirmation findings in the E-Verify program have no further administrative review process or
43
judicial review. The enormous harm to an employee whose erroneously receives a final non-
confirmation is not reviewed at any agency, nor does there appear to be any plan to do so. This
is particularly puzzling as both agencies have multiple review and appeal processes for their
other core programs. Additional review procedures seem unlikely within the system, as
anticipated backlogs, ongoing training for SSA existing employees and new hires are anticipated
with the implementation of the new rule. E-Verify employers surveyed in the 2007 Westat report
complained that SSA employees who were contacted appeared to have little familiarity with the
E-Verify program, and that this created additional delays during the tentative and final non-
44
confirmation processes. Similar agency staffing challenges were faced when the DOS'
Western Hemisphere Travel Initiative took effect, resulting in understaffing and service
backlogs. Working with a response times far longer than that mandated by E-Verify, the State
Department hired an additional 925 employees and contract workers in 2006 and added more
than 1,200 for FY2007 and was still unable to meet its deadlines, despite hiring an outside
consultant to anticipate staffing needs.

In addition, given the massive undertaking contemplated, the Congressional Budget Office in
2005 estimated that the SSA would be spending $100 million per year on new personnel to
handle the non-confirmation inquiries that would ensue under an expanded electronic
employment verification system. Despite assertions to the contrary, the costs to federal
government, states, localities and private businesses under the current E-verify scheme will also
45
likely exceed the thresholds set by the Unfunded Mandate Reform Act of 1995. (Requirement
that E-Verify become mandatory for all employers will likely result in the expenditure by State,
local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more
in any year and it will likely significantly or uniquely affect small governments.) Unlike the
WHTI, which escaped the UMRA by classifying the expenditure to under $100 million by citing
the expenditure as a personal one (borne by each passport applicant), the expansion of E-Verify
and the impact on businesses will require expenditures in excess of $100 million.

The current legislation and DHS advice for employers, appears to leave the average employer
with the following tools to determine and detect the potential presence of illegal hiring (past
and/or present), document fraud and possibly, the use of counterfeit documents and to resolve
same before or during an ICE investigation:

• Voluntary EEVS compliance in programs run by ICE or USCIS;

• The tool issued by the SSA (the SSA no match letter); or DHS correspondence
pertaining to employee status;

43
Comments for the Record, Privacy and Civil Liberties Implications of E-Verify, Department of Homeland Security
Data Privacy & Integrity Advisory Committee, Public Meeting, March 12, 2008
44
Westat, Findings of the Web-Based Basic Pilot Evaluation, September 2007
45
January 15, Econometrica, Inc., 2008 Final Report "Small Entity Impact Analysis: Supplemental Proposed Rule
"Safe Harbor Procedures for Employers Who Receive a No-Match Letter."

16
 • Safe harbor provisions that may be offered in new legislation;

• Confusing I-9 documentation and procedures;

• ICE best hiring practices published on the ICE website (which, if conducted outside
of the IMAGE program may not provide protection from investigation or
prosecution);

• Internal audit and self-reporting procedures.

IV. Bad Actors and Good Actors- Navigating the Minefield

So, now what?

Right now, a prudent employer can register for Basic Pilot (and get used to it before registration
for all employers becomes mandatory). Several companies offer services to employers for this
purpose. For example, on December 5, 2006, in Newport Beach, Form I-9 Compliance, LLC
opened, claiming to be the first federally approved Designated Agent of the Department of
Homeland Security (DHS) and the Social Security Administration (SSA) for web-based
employment verification through the Basic Pilot Program, announced the development of
46
technological advancements to significantly improve the employer's I-9 record-keeping.
47
Vendors such as E V R I in Reno, Nevada, is another company that offers pre-and post-raid I-9
auditing and compliance.

While acknowledging its own shortcomings in detecting and deterring document fraud as an
agency, ICE continues to hold employers liable for same. Apparently, if they can ferret out the
presence of document fraud on the employer's premises in an ongoing investigation, the agency
cannot believe that same has escaped the employer's own notice lo these many months. What
appears to be common in all the document fraud investigation press releases is this: the hiring
agents of the company were aware that document fraud was occurring and may have aided in the
acquisition of false documents so that the I-9 obligations could be met. This highlights one of
the oddities of the agency enforcement-employer enforcement unwilling partnership. Clearly the
I-9 obligations have been communicated as important and required to the hiring agents. Clearly,
the agents want documentation that appears facially valid. What is not clear to these agents is
that their own internal IRCA compliance methods -some ranging from willful blindness to
downright prodigious efforts to commit fraud—will not withstand investigation by an ICE
investigator. The employer is required to participate vigorously in the enforcement of laws
pertaining to employment verification, and if it cannot stamp out law breaking on its own
premises, will have to suffer loss of business, reputation, profit and time, while ICE takes care of
it. And this is true whether there is a guest worker program or not, or whether EEVS is in top
working order or not.

46
www.formi9.com

47
www.EVRInc.com

17
A prudent and wary employer will follow up with SSA no match letters; develop internal
compliance procedures though self-auditing and proper I-9 completion. In addition, the employer
can review the list of ICE Best Practices set forth in its IMAGE (ICE Mutual Agreement
between Government and Employers) program, incorporate what it can or will, and train
company personnel to comply with worksite enforcement laws and regulations. Articles
pertaining to these steps have appeared in several publications and can be found on both AILA
and ABA websites. The AILA Raid Action Plan appears in your materials, at Appendix B. A
list of the ICE Best Hiring Practices is found below; please note that employer participation in
48
the IMAGE program has been relatively low.
49
ICE Best Hiring Practices (mandatory under IMAGE Program)

• Use the Basic Pilot Employment Verification Program for all hiring.

• Establish an internal training program, with annual updates, on how to manage

completion of Form I-9 (Employee Eligibility Verification Form), how to detect
fraudulent use of documents in the I-9 process, and how to use the Basic Pilot
Employment Verification Program

• Permit the I-9 and Basic Pilot Program process to be conducted only by individuals who
have received this training—and include a secondary review as part of each employee's
verification to minimize the potential for a single individual to subvert the
process. Establish a self-reporting procedure for reporting to ICE any violations or
discovered deficiencies.

• Establish a protocol for responding to no-match letters received from the Social Security
Administration.

• Establish a Tip Line for employees to report activity relating to the employment of
unauthorized aliens, and a protocol for responding to employee tips.

• Establish and maintain safeguards against use of the verification process for unlawful
discrimination,

• Establish a protocol for assessing the adherence to the "best practices" guidelines by the
company's contractors/subcontractors.

48
In a September 2008 ceremony at its new headquarters in Arlington, Va., the ICE Mutual
Agreement between Government and Employers (IMAGE) program signed on 26 new members
to the corporate compliance group that already included nine charter members. In addition,
10 new companies and one association signed on as IMAGE associates, committing themselves to
meeting the workforce compliance standards set by the IMAGE program at its inception in
January 2007.
49
www.ice.gov
18
 • Submit an annual report to ICE to track results and assess the effect of participation in the
IMAGE program.

Employers can also be apprised that worksite enforcement is not solely an immigration issue.
The following areas are also potential causes for concern, and can be raised by the SSA no-
match letter and/or Form I-9:

• Labor Issues (ERISA) - Removal/reinstatement of suspect workers from benefits plan;

• Discrimination Issues - Immigration Reform and Control Act (IRCA) contains anti-
discrimination provisions; employers must walk a fine line between compliance with
immigration law and anti-discrimination law;

• Privacy Issues - Government is pressing for data sharing among SSA, IRS, DHS, HHS,
which is currently precluded by privacy laws;

• M&A Due Diligence Issues;

• State government contracting issues: Some states have enacted immigration statutes
regulating state government contractors; these statutes are more stringent than federal
immigration law and carry higher penalties. Failure to comply may lead to debarment.

In addition, the employer can consider that prosecutorial discretion appears to favor the
cooperative. During the height of the Swift & Company raids in December 2006, Deputy
Attorney General Paul McNulty issued a memorandum called "Principles of Federal Prosecution
of Business Organizations"; colloquially called "The McNulty Memo". Prior to The McNulty
Memo, there was a Thompson Memo; and since then, there have been recent updates to the U.S.
50
Attorney's Office Manual ,; a manual that does include a section entitled "The Value of
Cooperation". In that section, the "General Principle" held by the U.S. Attorney's Office is
stated thusly: "In determining whether to charge a corporation and how to resolve corporate
criminal cases, the corporation's timely and voluntary disclosure of wrongdoing and its
cooperation with the government's investigation may be relevant factors...Cooperation is a
potential mitigating factor, by which a corporation - just like any other subject of a criminal
investigation- can gain credit in a case that is otherwise appropriate for indictment and
prosecution." And, "[f]ailure to cooperate, in and of itself, does not support or require the filing
51
of charges with respect to a corporation any more than with respect to an individual.

The Thompson and McNulty memos direct federal prosecutors to take nine factors into account
when deciding whether or not to charge a business entity with wrongdoing. What is significant
about this memorandum in the context of ICE and DHS' worksite enforcement actions, is that it
underscores the Department of Justice's fondness for cooperation and for compliance programs.
However, the McNulty memo indicates that in the course of an investigation, what the

50
The entire Manual is on line at www.usdoj.gov. Go to the section on DOJ organizations, go to U.S. Attorney's
Offices, and it should be listed under publications. There is a criminal manual and a civil manual.
5 1
Id.

19
prosecutors want to see are real compliance programs; effective ones that appear to be more than
merely multi-page documents in a risk manual.

Newer and non-immigration practitioners should be familiar with the Swift & Company raids
from 2006. Although there have been several other raids since that time, the lessons from the
Swift raids inform our actions inasmuch as we learned from the Wal-Mart case and subsequent
fines. Additional accounts of worksite enforcement activity are available at www.ice.gov.

Case Study: Raids at Swift & Co.

• In December 2006, ICE conducted raids using over 1,000 agents, and executed search
warrants at 7 Swift & Company meatpacking plants

- HR representative charged with criminal violations in 2002

- Swift participated in DHS's Basic Pilot program and attempted to negotiate with
ICE pre-raid. This did not insulate company from raids.

- 30% of I-9s found suspect

- Plants shut down

- Post-raid, investigation is ongoing

- No civil or criminal charges against Swift at this time

- Swift's good faith compliance may prevent civil or criminal charges against the
company

One of the most daunting aspects of the ICE investigative method is the agency's press releases
following a raid, wherein ICE discusses its findings, naming the employer, lists the violations
and charges that will be or have been brought. In many investigations, ICE has enough
evidence to charge individuals only, as rogue individual employees who break the law, but have
often not been able to tie these individuals to a company-wide policy of illegal hiring, and is
thereby unable to charge the entity itself, as was done to Wal-Mart. However, ICE press releases
that contain "investigation ongoing" language may prevent a company from moving out from
under the cloud of DHS investigation. In some cases, ongoing investigation is warranted.
Certainly, there are companies who fit the DHS profile of having a business model that yields
profit almost exclusively by law-breaking in the hiring and retention of its workforce.
Counseling such a company -or, these days, any company seeking assistance in this area-
requires a multi-tiered approach, and may require input from criminal defense counsel or other
practitioners. Several of the affidavits from ICE investigators that formed the basis upon which
warrants were later issued, contained information regarding environmental and worksite
condition violations in addition to DOL and USCIS violations.

After an ICE "Raid" an employer should:

20
 - Contact experienced counsel immediately to mitigate harm and minimize risk of
criminal prosecution if not already called

- Evaluate appropriate extent of cooperation with the government, including self-

reporting

- New workforce may be needed immediately to avoid shutdown

- Address potential back wages/benefits issues

- Address immediate and on-going remediation and compliance as a company

Finally, the employer can understand the one thing to which the government has not agreed: to
decline to prosecute employers who actively participate in its programs and believe themselves
to be insulated from the full panoply of governmental weapons. The government has never
promised this. Indeed it has stated clearly that an employer who creates its own multi-part
compliance program and refuses to enroll in one of the governments own programs, is not to
expect to receive particularly lenient treatment at time of investigation, although points may be
awarded for having a compliance program. The government has shown employers that you can
have a hundred boats docked in safe harbor over that SSA no-match letter business and still get
raided for document fraud and identity theft. (Indeed, the whole safe-harbor provision only truly
comes into play if the employee is ultimately not work authorized, anyway.) The government
has never agreed that it will not simultaneously investigate a company covertly while that same
company is attempting to resolve its I-9 investigation issues with the government. The
government has never agreed to anything at all, except to vigorously pursue and prosecute
wrongdoers. Moreover, the government has never said that your client isn't a criminal. Hence, an
employer cannot refuse to see itself as a target and to act accordingly.

Steps Companies Can Take Now To Reduce Risks of Worksite Enforcement Action

- Train personnel to comply with worksite enforcement laws and regulations.

- Train personnel to recognize clues that illegal workers are in employee pool and
act in accordance with IRCA and company policy regarding same.

- Train first responders.

- Identify contractors who strictly comply with immigration laws.

- Document the company's cooperative and compliance efforts.

- Develop document retention, management and storage policies to minimize

intrusion.

- Develop a crisis management plan.

- Designate company agent who will deal with ICE issues.

21
- Engage in meaningful dialogue with employment, immigration and white collar
criminal counsel.

22
 APPENDICES

Appendix A DHS/SSA EEVS Flow chart for Persons Claiming to be Citizens and for
Persons Claiming to be Non-Citizens (Copyright, Westat Consultants)
Appendix B AILA Raid Assistance Manual (reprinted by permission)
Appendix C Affidavit of ICE SA Calvin W. Bradford, submitted in support of an
application for a search warrant, Action Rags USA.
Appendix D SSA Sample No Match Letter Insert (2007)
Appendix E ICE No-Match Letter Insert (enjoined regs)
Appendix F U.S. Attorney's Office Manual, Title 9, Chapter 9-28.000, Principles of
Federal Prosecution of Businesses

Appendix G Social Security Number Updates

Appendix H ICE Worksite Enforcement Advisory

23
 Appendix A

DHS/SSA EEVS Flow chart for Persons Claiming to be Citizens and for Persons Claiming
to be Non-Citizens (Copyright, Westat Consultants)
Exhibit I-4: Verification Process for Persons Claiming to be U.S. Citizens on Form I-9

I-16 Westat
 Appendix B

AILA Raid Assistance Manual (reprinted by permission)

 Reprinted with permission from the AILA's InfoNet (www.aila.org),
Copyright (c) 2007, American Immigration Law Association.

AILA Chapter Raid Preparation Plan

Being prepared before a raid occurs will maximize your chapter's ability to
respond immediately and intelligently to an ICE enforcement action. Implement
the following steps now to ensure that your chapter is prepared.

Step 1: Appoint a Raids "Point of Contact" in Your Chapter

• When an ICE raid is underway, you will benefit from having a point of contact who can field media
inquiries, coordinate pro bono efforts, provide referral information for legal and social services, as well
as assist the community in sorting fact from fiction. At the chapter chair's discretion, the chapter's pro
bono liaison can serve as the chapter raids point of contact (CRPOC). If the chapter does not have a pro
bono liaison, you might consider appointing someone to fill that position and/or appointing an
individual to serve as the CRPOC. It is also important to have an alternate CRPOC so that the chapter
can respond even if the primary POC is unavailable. Share the contact information for these individuals
with your chapter at large, as well as AILA National (by notifying Mike Murray). Ideally, the primary
and alternate CRPOCs will be familiar with removal defense and detention issues, but this is not
required.

Step 2: Recruit Members for a "Raids Rapid Response Team" (RRRT)

• Survey chapter members for interest, and create a list of members willing and able to respond to a raid.
The chapter's priority should be to recruit members with removal, detention or litigation experience, but
this is not required. Publish the list of volunteers within the chapter and share it with AILA National by
notifying Mike Murray.
• It may be helpful to establish a separate chapter raids listserve for rapid communication.

Step 3: Review Raids Preparation Materials on InfoNet to Disseminate to

Immigrant Communities and for Use by Volunteers
• A substantial amount of existing "raids response" material is available from national NGOs such as
Detention Watch Network and the National Lawyers Guild Immigration Law Project. For your
convenience, AILA has consolidated on InfoNet links to many of these resources (go to
Media/Advocacy Tools on Homepage, click on Workplace Enforcement Response). Please bookmark
these resources and become familiar with them for use as needed.

• Identify and create a list of local/regional detention centers currently used by ICE. Detention Watch
Network has created a map of numerous locations, which may not be complete or current; www.ice.gov
has a list of the primary facilities, but it is not complete. To the extent possible, compile relevant
information regarding visitation and legal access policies, as well as existing "know your rights" (KYR)
programs or pro bono assistance for detainees. Note that ICE may not necessarily house detainees in the
geographical area of the raid, or alternatively, may use non-traditional detention sites, such as local jails
or military sites.

1
 Reprinted with permission from the AILA's InfoNet (www.aila.org).
Copyright (c) 2007, American Immigration Law Association.

Step 4: Strengthen Contacts with Local ICE and EOIR Personnel

• Develop a contact person at your local ICE Field Office, preferably one with supervisory authority who
will make him or herself available in the case of extreme need outside regular business hours or
channels. While most raids-related activities and decisions on issues, such as detention, humanitarian
release, bonds, transfers, attorney access, telephone access, and creation of an 800 number, appear to be
made at the HQ level, local coordination—and on-the-ground information—may still prove useful.
Another issue to address is the use of stipulated orders of removal and/or administrative voluntary return
agreements without benefit of legal counsel.
• Develop a contact person at local EOIR. Find out the court's policy regarding limited E0IR-28s (e.g.,
for bond hearings only), and discuss any arrangements for, or coordination of, multiple bond hearings.
In addition, advocate for close scrutiny of stipulated orders of removal.

Step 5: Strengthen Contacts with State and Federal Public Defenders

• ICE and local governments have broadened their efforts to criminally prosecute the targets of raids, both
for issues related to unauthorized work (e.g., identity theft), as well as other unrelated criminal charges.
Early intervention and education of the defense bar by immigration counsel may be key to maintaining
defendants' eligibility for bond and/or relief from removal. Establish contacts in both Federal and State
Public Defender offices, as well as any relevant state or federal defense bar, so that defense counsel are
aware of AILA's ability to advise as to immigration consequences of any charges.

Step 6: Strengthen Contacts with Local and Regional Immigration NGOs

• Develop contacts with local/regional immigration NGOs. The American Bar Association Commission
on Immigration has compiles and updates a state-by-state immigration NGO list, though note that some
of the organizations listed may not provide legal representation. Chapters should especially rely on
their non-profit members for information, and make it the chapter's primary goal to identify NGOs that
do detained removal work or which might otherwise be helpful with representation in the aftermath of a
raid.
• Chapters should inform NGOs of AILA's availability to assist or coordinate community responses to a
raid, including identification of possible volunteer attorneys and interpreters. Chapters might also
coordinate, or urge NGOs to coordinate, with local immigrant, religious and other communities
discussed below, who might have contact with persons released by ICE and families impacted by raids.
Ask the NGO to identify a contact person for this purpose. In addition, develop or strengthen contacts
with local law school immigration clinics for volunteers to do detention center visits and/or client
screening.

Step 7: Develop or Strengthen Contacts Within the Larger Community

• Coordinate your efforts with local community/social service groups, churches, and labor unions to
prepare for action after raids occur, as well as to explore ways in which your local chapter can provide
valuable information before a raid takes place. Inquire as to what efforts they can make to address
housing and child care needs, to work with impacted families and communities to seek and provide
information on raid developments (legal and social service-oriented), to establish a meeting place for the
families, to help set up community meetings and to provide interpreters for jail visits, etc. Ask groups
to designate a contact person. Consider placing relevant contacts on the chapter's internal raids

2
 Reprinted with permission from the AILA's InfoNet (www.aila.org).
Copyright (c) 2007, American Immigration Law Association.

response listserve, or creating a separate raids information listserve geared toward providing updates
and advice to non-immigration or non-legal personnel.
• Establish or strengthen local media contacts. In other large raids, media serving immigrant
communities, especially Spanish-language radio stations, have been good sources of information for
helping establish the identity of persons apprehended and for disseminating information, since they
often are trusted by the communities. Mainstream media also can be important as a source of
information. All such information has proven to be invaluable in the first 24 hours after a raid, when
there is lack of accurate information on raid-related developments, identities, etc. In addition, media
attention is useful as a potential pressure point on ICE actions, such as detainee transfers and
humanitarian releases. AILA has prepared a sample op-ed and a sample press release—these will be
updated periodically.
• Establish or strengthen contacts with congressional officials and state and local lawmakers. Solicit a
commitment from them to press ICE directly for information and to speak to the media in the aftermath
of a raid, should one occur.
• Establish connections with other relevant agencies and NGOs. State departments of social services have
been effective in other raids in getting lists of detainees, in being able to meet with detainees, and
helping to bring pressure on ICE for humanitarian release. Consulates should be able to gain access to
detention centers, as well as to provide information and comfort to their nationals, according to their
rights under the Vienna Convention. Domestic violence organizations have been successful in gaining
access to female detainees for specialized intake; this has had the additional advantage of slowing down
the process of transfer of all detainees to remote locations.

Step 8: Take Immediate Action when a Raid Occurs

• If a raid does occur in your area, refer to the AILA Raids Action Plan on InfoNet for an hour-by-hour
suggested response. The Action Plan is a comprehensive resource that is intended for use when a raid is
in progress. Don't panic—and don't waste your time reinventing the wheel. If you are unsure as to
how to proceed—or just need a shoulder to lean on—consider referring to the list of raids, "veterans" for
mentorship.

3
 Reprinted with permission from the AILA's InfoNet (www.aila.org).
Copyright (c) 2007, American Immigration Law Association.

Additional Resources
These resources have been created by community and legal advocates for use during the planning and
implementation stages of workplace raid response.

Pre-Raid Community Safety Plan: Building Capacity for the Safety of the Immigrant
Community
A flyer on how organizations can prepare for raids. (Provided courtesy of Detention Watch
Network, Families for Freedom, and National Immigration Project)

From Raids to Deportation: A Community Resource Kit

A booklet with advice on responding to workplace enforcement actions, (Provided courtesy of
Detention Watch Network and National Immigration Project)

Training on ICE Enforcement, Detention, and Deportation

Overview of ICE detention and removal system and legal and community strategies to respond.
(Provided courtesy of Detention Watch Network, National Immigration Project, Immigrant
Legal Resource Center, and Families for Freedom)

Deportation 101: Detention, Deportation, and the Criminal Justice System

Booklet providing description of ICE detention and removal system, legal and community
strategies to respond, sample intake question forms. (Provided courtesy of NYSDA
Immigration Defense Project and Families for Freedom)

Lessons Learned from New Bedford, MA (Raid): How to Prepare Communities for
Immigration Raids. Short list of tips for implementing responses to raids.

Community Rapid Preparedness Checklist: Lessons Learned from New Bedford, MA

and Marshalltown, IA. Checklist of action items in the areas of Legal, Services, and
Organizing & Media. (Provided courtesy of Fair Immigration Reform Movement).

Link to Raids Preparedness Checklist document

What Happens to Children Caught up in Immigration Enforcement Activities. Memo

prepared by Julianne Duncan, Ph.D., of United States Conference of Catholic Bishops,

AILF Practice Advisory on Voluntary Departure Procedures and Consequences of Failure to

Depart.

4
 Appendix C

Affidavit of ICE SA Calvin W. Bradford, submitted in support of an application for a

search warrant, Action Rags USA.
 AO106(Rev. 10/03) Affidavit for Search Warrant

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF

In the Matter of the Search of

(Name, address or brief description of person, property or premises to be searched) APPLICATION AND AFFIDAVIT
Action Rags, USA FOR SEARCH WARRANT
1225 Port Houston Street
Houston, Texas 77029 Case Number:

I, Calvin W. Bradford being duly sworn depose and say:

I am a(n) Special Agent (ICE) and have reason to believe

Official Title

that [ ] on the person of or • on the property or premises known as (name, description and/or location)
Action Rags, USA, which is located at 1225 Port Houston Street, Houston, Texas 77029, and more specifically described in
Attachment " B " of the affidavit herein incorporated by reference

in the Southern District of Texas there is now concealed a certain person or property, namely
(describe the person or property to be seized)

Undocumented aliens, records, documents, computer floppy disks and other items more particularly described in Attachment " C " of
the affidavit herein incorporated by reference

Which is (state one or more bases for search and seizure set forth under Rule 41 (c) of the Federal Rules of Criminal Procedure)
a list of property that is evidence of the commission of a criminal offense; contraband and fruits of crimes; property used in the commission
of a criminal offense

concerning a violation of Title 8 United States Code, Section(s) 1324(a)(1)(A)(iii);(iv);(v)(I) .

The facts to support a finding of probable cause are contained in the attached affidavit and made a part hereof.

See Attachment "A"

Signature of Affiant
Sworn to before me and subscribed in my presence,

at Houston, Texas
Date

MARY MILLOY, United States Magistrate Judge

Name and Title of Judicial Officer Signature of Judicial Officer
 UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

STATE OF TEXAS

AFFIDAVIT

COUNTY OF HARRIS

ATTACHMENT "A"

I, Calvin W. Bradford, being duly sworn, depose and state:

I. INTRODUCTION:

1. I am a Special Agent with the Department of Homeland Security, United States

Immigration and Customs Enforcement (ICE), assigned to Office of the Special Agent in Charge

(SAC) in Houston, Texas. I have been employed as a Special Agent with ICE for five (5) years. I

am presently assigned to the Worksite Enforcement Unit in Houston, Texas, conducting

investigations involving the employment of aliens not authorized to work in the United States. As

an agent, I have received formal advanced training in conducting worksite enforcement

investigations, and personally conducted and/or assisted in several worksite enforcement

investigations. I have also increased my investigative skills and knowledge by assisting other

experienced special agents in complex investigations. I have been personally participating in the

investigation of matters discussed in this affidavit since May 2007, and I am familiar with the facts

and circumstances of this case. The facts and circumstances were derived through information

obtained from ACTION RAGS, USA, (hereinafter referred to as ACTION RAGS), located at 1225

Port Houston Street, Houston, Texas, cooperating witnesses, consensual audio recorded

1
conversations between ICE informants and the owner and managers of ACTION RAGS and Texas

Workforce Commission (TWC) quarterly wage reports.

2. As this affidavit is submitted for a limited purpose, I have not included details concerning

every aspect of this investigation. Where actions, conversations and statements of others are related

herein, they are related only in substance and in part.

II. THE COMPANY AND MANAGEMENT

3. ACTION RAGS is an export company based in Houston, Texas, incorporated on March 13,

2003, in the State of Texas. An internet website established by this company indicates ACTION

RAGS is a leading grader and exporter of used clothing, specializing in selling used clothes to

worldwide markets including Africa, South America, India and Pakistan. According to TWC

quarterly wage reports, ACTION RAGS employs approximately 300 workers and operates out of a

warehouse located at 1225 Port Houston Street, Houston, Texas 77029. Mubarik KAHLON filed

with the Texas Secretary of State as the director, member, owner, and registered agent under the

name ACTION RAGS, USA, LLC.

4. The following individuals and their employment positions were identified by a cooperating

source currently employed at ACTION RAGS: Mubarik KAHLON (a.k.a. Baco) was identified as

the owner of ACTION RAGS. Your affiant has learned that Mubarik KAHLON is a naturalized

United States Citizen born in Pakistan. A review of KAHLON's immigration records indicates

KAHLON was naturalized as a United States citizen on November 26, 1996. Valerie RODRIGUEZ

was identified as the human resource manager for ACTION RAGS; Cirila BARRON was identified

as a manager for ACTION RAGS; Rasheed AHMED was identified as KAHLON's uncle and

partner at the business; and Khalid SAEED was identified as the brother-in-law of KAHLON and

the person who opens the business daily.

2
5. Affiant will set forth specific facts and circumstances of the investigation to establish

probable cause that ACTION RAGS, through its owner, Mubarik KAHLON (a.k.a. Baco), and other

managers, namely, Valerie RODRIGUEZ (a.k.a. Valerie), Cirila BARRON (a.k.a. Cecilia

BARRERA), Rasheed AHMED (a.k.a. Rachin), and Khalid SAEED, entered into a conspiracy to

conceal, harbor, or shield from detection unauthorized aliens, and to encourage and induce the aliens

to reside in the United States, knowing or in reckless disregard of the fact that such residence is or

will be in violation of Title 8 U.S.C. Section 1324(a)(1)(A) (iii), (iv), and (v) (I). In addition,

ACTION RAGS and its management operated in a pattern or practice of hiring and continuing to

employ illegal aliens in violation of Title 8 U.S.C. Section 1324a(f)(l).

III. LEGAL FRAMEWORK:

6. Section 274A of the Immigration and Nationality Act, as amended by the Immigration

Reform and Control Act of 1986, requires employers to hire only United States citizens and aliens

who are authorized to work in the United States. Employers must verify employment eligibility of

any persons hired after November 6, 1986, using the Employment Eligibility Verification Form (I-

9). The employer is required to examine, at the time of hire, the documentation provided by the

individual that establishes his identity and employment eligibility to ensure that the documents

presented appear to be genuine and to relate to the individual. The employer must retain the I-9

Forms for three (3) years after the date of the hire or one year after the date the individual's

employment is terminated, whichever is later.

7. Based on my training and experience and the experience of other ICE agents who have

extensive worksite investigative experience and who conduct employer investigations, it is common

for the employer to maintain employee records to include, but not limited, to: I-9 Forms with copies

of supporting forms of identification used to complete them, W-4 forms, deduction of wages forms,

3
payroll information, payroll files of all employees or contractors, Social Security Administration

Request for Employer Correction Letters ("No Match" letters), Social Security Administration

Request for Employee Information letters, ED badges issued to all workers, and performance

evaluations.

8. Based on my training and experience in conducting worksite investigations, these forms are

normally maintained on the employer's business premises. Moreover, based on my experience and

training, some of this information (including payroll records) is often stored in electronic form on

company computers.

9. Based on my training and experience, and the training and experience of other agents

familiar with worksite investigations, it is very common for undocumented aliens to procure false

identity and social security cards and/or numbers in order to obtain employment. The facts of the

investigation of ACTION RAGS, as outlined below, revealed that the owner and managers of the

business were aware that undocumented aliens obtained employment at the business utilizing

fraudulent identity and SSA cards.

IV. FEDERAL CRIMINAL INVESTIGATION:

10. In May 2007, ICE agents received information from a confidential source, who has

provided ICE with credible and reliable information in the past, that ACTION RAGS is involved in

the large-scale employment of undocumented aliens and that many of these workers utilize

fraudulent documents to gain employment at the business. This source informed ICE agents that he

would bring forth a former employee of ACTION RAGS who had personal knowledge of hiring

practices at ACTION RAGS whereby undocumented aliens are hired with fraudulent or no

documents. A computer check of ACTION RAGS in the Treasury Enforcement Communications

Systems II (TECS II) revealed there was a July 28, 2005, Department of Homeland Security tip line

4
report against this business. The call-in tipster indicated ACTION RAGS was "hiring smuggled,

illegal aliens, some as young as thirteen years of age." The caller also provided ACTION RAGS'

phone number (713) 672-2770, which corresponds with the current phone number in use for the

business.

V. WITNESS INTERVIEWS

11. On June 12, 2007, Senior Special Agents Calvin Bradford and Eleazar Paredes met with

cooperating witness, Candelaria Guardado. Candelaria Guardado is an undocumented alien illegally

present in the United States and a former employee of ACTION RAGS. Guardado provided agents

with background information regarding the business. Guardado stated she worked for ACTION

RAGS approximately one year and seven months at two different locations: 1202 Harris Street,

Houston, Texas, and 1225 Port Houston Street, Houston, Texas. The business is currently operating

at 1225 Port Houston Street. Through her personal knowledge of the business, Guardado indicated

there are approximately 250 to 300 personnel employed at ACTION RAGS working in a warehouse

separating various clothing articles and rags for later bundling and export out of the United States.

When describing the employment process, Guardado indicated the company maintains application

and employment documents in the office at 1225 Port Houston Street. Guardado stated the

supervisor at the business is from Mexico. Guardado informed agents the business operates a single

shift from 7:00 a.m. to 3:30 p.m. Additionally, Guardado stated that in March 2006, while

employed at ACTION RAGS, the business closed for three (3) days after someone called the

business indicating Immigration officials were going to conduct a raid at the location. Guardado said

KAHLON instructed one of the supervisors to have everyone leave before Immigration officials

arrived to the business, signifying that the employers had knowledge many of the workers were

undocumented aliens. Guardado described the working conditions at ACTION RAGS as deplorable

5
because there is no air conditioning and there are only small fans in the corners of the warehouse.

The workers must provide their own drinking water and the company provides no safety equipment

such as gloves, support belts, or masks for protection from dust created by the rags and used clothing

articles. Guardado indicated workers are paid every two weeks by company check. Additionally,

employees of ACTION RAGS working more than 40 hours per week are not paid time and a half as

required by federal law, but instead are paid straight time in cash to disguise the overtime hours

actually worked. Guardado stated she purchased fraudulent documents from a flea market and

presented those documents for employment at ACTION RAGS.

12. On June 28, 2007, Senior Special Agents Edna Velez and Calvin Bradford interviewed

Alejandrina Batres-Delarosa, a current employee of ACTION RAGS who came forward to provide

information pertaining to criminal violations occurring at the business.

13. During this interview, Batres-Delarosa stated she was born in Matamoros, Mexico and has

been a Lawful Permanent Resident of the United States since December 1, 1990. This information

was corroborated through record checks conducted on DHS computer databases. Batres-Delarosa

had been working for ACTION RAGS for approximately three (3) years. Batres-Delarosa indicated

she knew the owner of ACTION RAGS as "Baco," which the investigation has confirmed is

Mubarik KAHLON. Batres-Delarosa indicated that one supervisor known as Cirila BARRON was

the person who conducted the hiring and firing at the business. According to Batres-Delarosa, a

person named Valerie (later identified as Valerie RODRIGUEZ) makes copies of employee

documents and maintains folders and applications given to her by Cirila BARRON in the office

located at 1225 Port Houston Street, Houston, Texas. Those documents are routinely presented to

BARRON, and the owner, KAHLON, sometimes reviews the employment application. Batres-

Delarosa said copies of employee social security and identification documents, if the employees

6
submit them for employment, are kept in the employee files located in the offices of ACTION

RAGS located at 1225 Port Houston Street, Houston, Texas. She added that the owner pays

employees who begin working at the business with no employment documents in cash until they

provide the business with work eligibility documents. Batres-Delarosa stated sometimes KAHLON

pays all of the workers in cash, and other times he informs employees they will have to be paid at a

later date than the normal pay day. When asked if she completed an I-9, Batres-Delarosa indicated

she did not know what the form was and had never completed it. Batres-Delarosa said KAHLON

previously instructed her to bring in undocumented aliens for employment at ACTION RAGS.

Batres-Delarosa informed agents that, in her estimate, there were approximately 200 undocumented

aliens employed at ACTION RAGS. She indicated there are five work groups assigned to conduct

various tasks and that very few of the employees are legal workers. Batres-Delarosa said the

employees work under deplorable conditions and work more than forty (40) hours a week, often not

being paid time and a half in excess of 40 hours. The employer provides no water and the building

contains no air conditioning or healthy ventilation.

14. On June 28, 2007, Senior Special Agents Edna Velez and Calvin Bradford interviewed

Diana Marie Sanchez regarding ACTION RAGS. At the time of the interview Sanchez was sixteen

(16) years of age and a United States citizen born in Katy, Texas on March 23, 1991. Sanchez was

working at ACTION RAGS at the time of the interview and had been employed about one (1) week.

Sanchez indicated that Valerie RODRIGUEZ is the secretary at ACTION RAGS and RODRIGUEZ

maintains all employment paperwork for the business at 1225 Port Houston Street, Houston, Texas.

Sanchez indicated that Cirila BARRON makes copies of the employment documents and copies of a

one-page employment application and supporting documents. SANCHEZ indicated a copy of her

social security card was kept in an employee file. Sanchez did not know what an I-9 was and had

7
never completed one. Sanchez stated ACTION RAGS hires undocumented aliens, but potential

employees must at least present fraudulent identity and Social Security cards or the business will not

hire them. Sanchez estimated there are approximately 150 undocumented aliens employed at the

business.

VI. RECORD INQUIRIES

15. Subsequent to the initial interviews in the investigation, ICE agents conducted computer

inquiries using various computer indices including the Treasury Enforcement Communications

System II (TECS II), ACCURINT, and the Harris County Appraisal District. It was determined that

ACTION RAGS, USA is currently located at 1225 Port Houston, Texas, where two pieces of

property are listed and appraised at $1,403,492.00 and $952,039.00 respectively for the year 2007.

ICE agents also determined that the owner Mubarik KAHLON resides at 8015 Clearwater Crossing,

Humble, Texas 77068. On July 24, 2007, SSA Bradford conducted surveillance at the business and

residence of KAHLON and noted a small, black 2002 Mercedes Benz, CL500 Coupe, which was

registered to Mubarik KAHLON.

VII. CONFIDENTIAL SOURCE ACTIVITIES

16. On July 31, 2007, confidential source SA-964-HO was directed by ICE agents to enter

ACTION RAGS posing as an undocumented alien. During a consensual audio-recorded

conversation, ICE confidential source SA-964-HO encountered Valerie RODRIGUEZ, an office

manager, who informed the source she might be able to work without documents for a week and

would be paid in cash. The source was told to return to the business the following day.

17. On August 1, 2007, ICE agents directed source SA-964-HO to enter ACTION RAGS for a

follow up to the first encounter with Valerie RODRIGUEZ. During consensual audio-recorded

conversations inside the office area, the source noted there were approximately 158 employee plastic

8
time cards located on the wall of the office. There were also five (5) paper cards in which the source

was later told were employees working at the business for less than a month. During this meeting

SA-964-HO encountered Cirila BARRON (a.k.a. Cecilia BARRERA) and informed her that she was

there to see Valerie RODRIGUEZ, who had instructed the source to come back to the business for

employment. BARRON then retrieved an application for SA-964-HO. While waiting for BARRON

to retrieve the application, SA-964-HO spoke with an unidentified Hispanic male. The unidentified

Hispanic male stated he purchased fake documents at a flea market for $25.00 dollars and utilized

these documents to obtain employment at ACTION RAGS. The male informed SA-964-HO that he

worked at ACTION RAGS initially with no documents and later provided the fraudulent documents

he purchased from a flea market to continue his employment at ACTION RAGS. During the

recorded conversation, SA-964-HO informed BARRON that Valerie RODRIGUEZ told the source

she could work a week without papers. At that time, Rasheed AHMED, another ACTION RAGS

manager, asked SA-964-HO where she would obtain work documents. SA-964-HO told AHMED

that she would obtain the work documents from the flea market. AHMED instructed SA-964-HO to

obtain the work documents and he would employ the source. AHMED also provided SA-964-HO

with his name and repeated it, spelling it out for the source in order for the source to ask for him by

name when she returned with the fraudulent work documents.

18. On August 2, 2007, SSA Calvin Bradford and SSA Eleazar Paredes provided ICE source

SA-964-HO with an ICE created Alien Registration Receipt Card (I-551) and a Social Security card

as part of the investigation, bearing a photo of the source. The numbers for the Social Security card

and Alien Registration Receipt Card were verified by agents as not being assigned to any United

States citizen or resident.

19. On August 2, 2007, during consensual audio-recorded conversations, SA-964-HO entered

9
ACTION RAGS and asked Khalid SAEED if Rasheed AHMED was available. According to the

source, SAEED recognized the source from the previous day and informed SA-964-HO that

AHMED was not there. SAEED gave SA-964-HO an employment application. AHMED later

arrived and asked the source if the source had completed the application provided by SAEED. The

source informed AHMED she had completed it. SA-964-HO informed AHMED she had to pay a

large amount of money for the fraudulent work documents because the flea market opens on

Saturday and is not usually open during the workweek. The source was directed by management to

immediately go to work in the warehouse after completing a one-page application for employment.

Later, SA-964-HO was summoned to the management office by Cirila BARRON to provide copies

of SA-964-HO's fraudulent employment documents. The source met with Valerie RODRIGUEZ

and informed RODRIGUEZ she had to pay a lot of money for the fraudulent work documents

because the flea market is not open during the week.

20. On August 3, 2007, during a debriefing with SA-964-HO, ICE agents asked the source if an

I-9 was completed as required by law. SA-964-HO indicated she never completed the I-9, nor did

she complete a W-4 form for federal tax withholding. The source positively identified a photo

containing the image of Khalid SAEED. The source told ICE agents that she informed SAEED that

she had placed a different Social Security number on an application provided to her on August 1,

2007. The source then told SAEED that she instructed the purported document vendor who later

made the fraudulent Social Security card to put the same number used on the application on August

1, 2007, but the purported document vendor used a different Social Security number.

21. On August 3, 2007 during a debriefing, SA-964-HO informed agents she initially presented

the fraudulent documents to Rasheed AHMED on August 2, 2007.She stated AHMED turned the

documents over to Dalia MEJIA to make copies of the documents, but the copier machine was

10
broken. SA-964-HO also stated that Valerie RODRIGUEZ made copies of the fraudulent Social

Security card and fraudulent Alien Registration Receipt Card (I-551) after the source was hired on

August 2, 2007.The source stated RODRIGUEZ works in the management office and was the last

person in possession of copies of the employment documents. SA-964-HO believes copies of the

fraudulent documents she submitted for employment are maintained in the administrative office of

ACTION RAGS. The source remained employed as an unauthorized alien at ACTION RAGS for

approximately three (3) months.

22. On August 16, 2007, SA-964-HO informed agents all employees were instructed to go

home after Cirila BARRON told the employees immigration was coming to raid the business. SA-

964-HO also stated AHMED told her employees were leaving because they were scared

Immigration might come to check the business.

23. On August 23, 2007, in a consensual audio-recorded conversation, SA-964-HO spoke with

ACTION RAGS manager, Cirila BARRON. SA-964-HO asked BARRON if the company was

hiring additional personnel. BARRON said they were hiring. BARRON stated the company needed

at least six (6) individuals, and preferred women rather than men. SA-964-HO told BARRON she

had friends from Mexico in the United States and seeking employment. BARRON instructed SA-

964-HO to bring in the prospective employees on August 27, 2007.SA-964-HO informed BARRON

that the individuals she planned to bring would need to obtain Social Security cards from the flea

market to work. BARRON then made the following statement, in part, to SA-964-HO, "take them to

the flea market and make them citizens." SA-964-HO then told BARRON that she had previously

obtained a fraudulent Social Security card for $125.00.BARRON told SA-964-HO, she had paid too

much for the fraudulent document and could have obtained a fraudulent Social Security card for

$80.00 dollars.

11
24. On August 23, 2007, SA-964-HO spoke with another supervisor, Dalia MEJIA, and told

MEJIA that she had previously informed Cirila BARRON she would be bringing in friends from her

ranch in Mexico, but they needed to first obtain fraudulent Social Security cards from the flea

market.

25. On August 23, 2007, SA-964-HO had a consensual audio-recorded conversation with the

owner of the business, Mubarik KAHLON. SA-964-HO informed KAHLON that she had a couple

of friends who needed employment. KAHLON told SA-964-HO to obtain fraudulent work

documents, and also do whatever the source had to do for the individuals to work at ACTION

RAGS. KAHLON informed SA-964-HO that he required the work documents for business records.

In addition, KAHLON suggested SA-964-HO get married to a United States citizen to begin the

process to obtain legal status in the United States. KAHLON further stated he knew people the

source could marry to begin the process to obtain legal status. SA-964-HO informed KAHLON that

she would be going to the flea market to obtain fake documents for the prospective workers.

KAHLON told the source that Immigration would not come to ACTION RAGS because they are

more concerned with drugs.

26. On September 27, 2007, in a consensual audio-recorded conversation, SA-964-HO

introduced SA-995-HO (a different confidential source) to Mubarik KAHLON.SA-964-HO told

KAHLON that SA-995-HO had documents that were obtained from the flea market. KAHLON

acknowledged the documents were from the flea market and instructed SA-964-HO to bring in five

(5) more males, and to also obtain their fake documents from the flea market so he could employ

them at ACTION RAGS.

27. On September 28, 2007, SA-995-HO entered ACTION RAGS claiming to be an

unauthorized alien worker and was subsequently hired. SA-995-HO told an unknown Hispanic

12
female that on September 27, 2007, he had spoken with "BACO" (a.k.a. Mubarik KAHLON) about

starting work at the business.

28. On October 17, 2007, Senior Special Agent Edna Velez interviewed Margarita Camarillo-

Horta and Alejandrina Batres-Delarosa. Camarillo-Horta was pregnant at the time of the interview

and Cirila BARRON later terminated her employment due to her pregnancy. Camarillo-Horta stated

she had been verbally abused and received no assistance when she needed medical treatment while

working at ACTION RAGS. Camarillo-Horta stated she was referred to as a "wet" by one of the

ACTION RAGS supervisors. "Wet" is a derogatory name referring to undocumented aliens illegally

present in the United States and from the United Mexican States. Camarillo-Horta was told that no

one would hire a "pregnant undocumented worker." Camarillo-Horta informed agents she entered

the United States on a tourist visa in 2003 and was not authorized to work when hired by ACTION

RAGS. Camarillo-Horta indicated she never showed any documents nor did she complete a legally

required I-9 when she was employed by the business.

29. On October 25, 2007, SA-995-HO informed ICE agents that he worked directly with Cirila

BARRON and observed mistreatment of Margarita Camarillo-Horta by BARRON. SA-995-HO

worked at ACTION RAGS from September 28 to October 29, 2007 posing as an undocumented

alien and also never completed an I-9 as required by law.

30. On October 18, 2007, SA-964-HO positively identified Cirila BARRON from a Texas

Drivers License photo. SA-964-HO described BARRON as an office manager.

31. During the three-month period SA-964-HO was employed at ACTION RAGS as a

purported undocumented alien, SA-964-HO observed six (6) computers being operated at the

business. SA-964-HO stated four (4) computers are situated in the administrative office; one (1) is

located in the warehouse area used for shipping and receiving; and one (1) is located in the owner's

13
second floor office above the administrative office. SA-964-HO indicated the administrative

computers are utilized for payroll input and documentation. SA-964-HO said she noted this after

being present when a co-worker informed human resource manager Valerie RODRIGUEZ she had a

problem with her paycheck. RODRIGUEZ informed the worker she would have to check payroll

information on the computer for the pay problem.

32. On October, 25, 2007, during a consensual audio-recorded conversation SA-985-HO

entered ACTION RAGS and presented himself as an unauthorized alien seeking employment. He

informed Cirila BARRON he had obtained fraudulent documents and needed employment.

BARRON stated she was a supervisor and told SA-985-HO to report back on following Monday

morning to start working. SA-985-HO did report and worked for three days at the business.

33. On March 26, 2008, another cooperating source, who is an undocumented alien illegally in

the United States and currently employed at ACTION RAGS, identified Mubarik KAHLON as the

owner of ACTION RAGS, Valerie RODRIGUEZ as the human resource manager, Cirila BARRON

as a manager for ACTION RAGS, Rasheed AHMED as KAHLON's uncle and partner at the

business, and Khalid SAEED as the brother-in-law to owner Mubarik KAHLON.

34. On June 2, 2008, ICE agents directed ICE source SA-964-HO into ACTION RAGS to seek

employment as an unauthorized worker. SA-964-HO is the individual who previously worked at

ACTION RAGS from August 2, 2007 through September 27, 2007. In a consensual audio-recorded

conversation on June 2, 2008, SA-964-HO met with ACTION RAGS owner, Mubarik KAHLON.

KAHLON initially told SA-964-HO he was looking for someone to work at his General Nutrition

Center (GNC) business and asked if SA-964-HO could work morning or evening hours. KAHLON

then offered SA-964-HO a position at ACTION RAGS working Monday through Friday. SA-964-

HO informed KAHLON that she lost the old work documents from the flea market she had utilized

14
for employment and that she obtained new work documents from a local flea market. KAHLON

informed the source he did not want to know where SA-964-HO obtained the documents, only that

she had work documents. KAHLON requested the phone number for the source so he could contact

her later concerning employment. KAHLON made a copy of the new set of fraudulent work

documents, purportedly obtained from the flea market. Before departing ACTION RAGS, the source

asked KAHLON if the source needed to complete an application and KAHLON informed SA-964-

HO that she could complete a new employment application when he later called her to report for

work.

35. Based on my training and experience, it is normal practice for companies engaging in the

employment of undocumented aliens to hire employees knowing that the potential employees

possess and intend to use fraudulent or fake documents. Based on information received from

cooperating witnesses and subsequent interviews with those witnesses, your affiant believes that

ACTION RAGS was hiring undocumented aliens in large numbers with either no documents

verifying eligibility to be employed in the United States, or possessing fraudulent documents

presented by unauthorized workers. Information derived during this investigation also revealed that

managers and supervisors with hiring authority at ACTION RAGS, and through the normal course

of their business, accept and encourage the use of fraudulent documents when hiring workers.

VIII. CONCLUSION

36. In conclusion, based on my training and experience as a Special Agent, what I have learned

in conducting this investigation, and from the foregoing description of continuous criminal activity

occurring over a lengthy period of time, I believe probable cause exists that on the property or

premises known as ACTION RAGS, USA, located at 1225 Port Houston Street, Houston, Texas

77029, there is evidence of the commission of a criminal offense; contraband and fruits of crimes;

15
and property used in the commission of a criminal offense concerning a violation of Title 8, U.S.C.

Section 1324(a)(1)(A) (iii), (iv), and (v) (I) (conspiracy to conceal, harbor, or shield from detection

unauthorized aliens and to encourage and induce the aliens to reside in the United States, knowing or

in reckless disregard of the fact that such residence is or will be in violation of law). I also believe

probable cause exists that there is also evidence ACTION RAGS and its management operated in a

pattern or practice of hiring and continuing to employ illegal aliens in violation of Title 8 U.S.C.

Section 1324a (f)(1) and also knowingly hired/continued to employ 10 or more unauthorized aliens

over any twelve-month period in violation of Title 8 U.S.C. Section 1324(a)(3)(A). The property

to be seized is more particularly described in ATTACHMENT "C" of this affidavit, and probable

cause exists it will be found at ACTION RAGS, located at 1225 Port Houston Street, Houston,

Texas 77029.

37. To this end, it is further requested that the search warrant provide for the forensic search

and analysis of the contents of any and all electronic media storage, including but not limited to

computer hard drives and computer diskettes, and the processing and development of any and all

undeveloped media capable of containing evidence of the crime. The above request is based on the

affiant's experience that new technology allows companies to communicate with their employees

and send correspondence, memos and information via electronic mail (E-mail). Indeed, based on

my experience with past investigations, employers often utilize electronic communications to

document employment related decisions and documents of employment related information are

often contained electronic form at the work place in electronic form where it is readily accessible. In

addition, payroll records and other payroll information are also often stored in electronic databases

on a computer. Because searches of computers are best performed in controlled environments, it is

requested the search warrant allow for the forensic analysis of electronic media storage devices to be

16
conducted at an ICE or other law enforcement facility within the Southern District of Texas.

38. As previously stated, based on my training and experience and the experience of other ICE

agents who have extensive worksite investigative experience and who conduct employer

investigations, it is common for the employer to maintain employee records to include but not

limited to: I-9 Forms with copies of supporting forms of identification used to complete them, W-4

forms, deduction of wages forms, payroll information, payroll files of all employees or contractors,

Social Security Administration Request for Employer Correction Letters ("No Match" letters),

Social Security Administration Request for Employee Information letters, ID badges issued to all

workers, and performance evaluations. It is my belief that all of these records are maintained at

ACTION RAGS located at 1225 Port Houston, Houston, Texas 77029.

39. It is requested this affidavit, along with the application and arrest warrant, be sealed.

Disclosure of these documents would jeopardize an ongoing criminal investigation.

Special Agent Calvin W. Bradford

U.S. Immigration and Customs Enforcement

Subscribed and sworn before me the of June 2008 and I find probable cause.

17
 ATTACHMENT "B" TO AFFIDAVIT OF
SPECIAL AGENT CALVIN W. BRADFORD

The premises and appurtenances to be searched are located and described as follows:

ACTION RAGS, USA

1225 Port Houston Street
Houston, Texas 77029

The business consists of a large warehouse that contains loading docks and/or freight
doors on all sides of the building, with an administrative office on the southwest corner
of the building where the owner, managers and office workers are located. The building's
north, west and portions of the east side boundaries are surrounded by a six-foot chain-
link fence having barbed wire on top. The remaining boundary (south side, and portion of
east side) is the warehouse building itself. A large parking lot encompasses the north side
of the property and there is a smaller parking lot running along the west side (Port
Houston Street side) of the building.

An aerial geographical view shows the business located on the corner of Port Houston
Street and Tilgham at the above listed address.
 ATTACHMENT "C" TO AFFIDAVIT OF
SPECIAL AGENT CALVIN W. BRADFORD
ITEMS TO BE SEARCHED AND SEIZED:

Items to be searched:

Action Rags, administrative offices, and warehouse buildings located at 1225 Port
Houston Street, Houston, Texas 77029 and any appurtenance with the curtilage of the
premises.

Items to be seized:

Evidence relating to Title 8, U.S.C, Section 1324 (a)(1)(A)(iii) (harboring undocumented

aliens); Title 8, U.S.C, Section 1324(a)(l)(A)(iv) (encouraging or inducing
undocumented aliens to come to, enter, or reside in the United States); Title 8, U.S.C,
Section 1324 (a)(l)(A)(v)(I) (engaging in conspiracy to commit any of the preceding
acts).

A. Undocumented aliens unlawfully employed and working for Action Rags located
at 1225 Port Houston Street, Houston, Texas 77029.

B. The following records and documents, referencing or related to the employment of

hiring, firing and procuring labor for Action Rags.

1. Employee records, to include but not limited to: I-9 forms with forms of
identification used to complete said form, W-4 forms, deduction of wages
forms, payroll information, payroll files of all employees or contractors,
ledgers for payments to employees, Social Security Administration
Employer Correction Request letters, Social Security Administration
Request For Employee Information Letters (i.e., No Match Letters), ID
badges issued to all workers, performance evaluations; charts of accounts;

2. Payroll records including banking statements, returned checks, cancelled

checks, check registers, check books, deposit slips, withdrawal slips,
cashier's checks, money orders, wire transfers, currency transaction
reports, credit card statements, and credit card receipts;

3. Internal Revenue Service (IRS) Forms W-2 and any associated paperwork,
IRS Forms W-3 and any associated paperwork, IRS Forms 1099 and any
associated paperwork;

4. Insurance paperwork, Texas Workforce Commission documents;

documents pertaining to healthcare or insurance claims by employees;
 Texas Workers Compensation documents, health and safety inspection
reports;

5. Company board meeting minutes, correspondence, memos (including

electronic), and any other documents (including emails) related to work
authorization or hiring of Action Rags employees.

As used above, the terms "records and documents" includes records, documents,
programs, applications or materials created, modified or stored in any form, including
digital storage devices.

If a safe is found on the premises, searching agents will attempt to open it at the
scene in order to search for items specified above. In the event that the safe is locked
and agents are unable to open it at the scene, they will remove the safe from the
premises to a site where it may be opened. The safe and any items outside the scope
of the items described above will be returned to the premises to be searched within
five (5) business days.

In searching for data capable of being read, stored or interpreted by a computer,

law enforcement personnel executing this search warrant will employ the following
procedure:

1. Upon securing the premises, law enforcement personnel trained in

searching and seizing computer data (the "computer personnel") will
make an initial review of any computer equipment and storage devices
to determine whether these items can be searched on-site in a reasonable amount
of time and without jeopardizing the ability to preserve the data.
If the computer equipment and storage devices cannot be searched on-site in a
reasonable amount of time, then the computer personnel will determine
whether it is practical to copy the data during the execution of the search
in a reasonable amount of time without jeopardizing the ability to preserve
the data.

2. If the computer personnel determine it is not practical to perform an on-

site search or make an on-site copy of the data within a reasonable amount
of time, then the computer equipment and storage devices will be seized
and transported to an appropriate law enforcement laboratory for review.
The computer equipment and storage devices will be reviewed by
appropriately trained personnel in order to extract and seize any data that
falls within the list of items to be seized set forth herein. In searching the
data, the computer personnel may examine all of the data contained in the
computer equipment and storage devices to view their precise contents and
determine whether it falls within the items to be seized as set forth herein.
In addition, the computer personnel may search for an attempt to recover
"deleted," "hidden" or encrypted data to determine whether the data falls
 within the list of items to be seized as set forth herein. If the computer
personnel determine that the data does not fall within any of the items to
be seized pursuant to this warrant or is not otherwise legally seized, the
government will return these items within a reasonable period of time not
to exceed 60 days from the date of the seizure unless further authorization
is obtained from the Court.

In order to search for data that is capable of being read or interpreted by a computer,
law enforcement personnel will need to seize the following items, subject to
the procedures set forth above:

Any computer equipment and storage device capable of being used to commit,
further, or store evidence of the offense(s) listed above;

Any computer equipment used to facilitate the transmission, creation, display,

encoding or storage of data, including word processing equipment,
modems, docking stations, monitors, printers, plotters, encryption devices,
and optical scanners and Personnel Digital Assistants/Pocket PC's;

Any magnetic, electronic or optical storage device capable of storing data,

such as floppy disks, hard disks, tapes, CD-ROM's, CD-R, CD-RWs,
DVD's, optical disks, printer or memory buffers, smart cards, PC cards,
flash drives, memory calculators, electronic dialers, electronic, notebooks,
and personal digital assistants;

Any documentation, operating logs and reference manuals regarding the

operation of the computer equipment, storage devices or software;

Any applications, utility programs, compilers, interpreters, and other software

used to facilitate direct or indirect communication with the computer
hardware, storage devices or data to be searched;

Any physical keys, encryption devices, dongles and similar physical items that
are necessary to gain access to the computer equipment, storage devices or
data; and

Any passwords, password files, test keys, encryption codes or other

information necessary to access the computer equipment, storage devices
or data.

Specific dates for Social Security Administration No Match Letters;

Since year 2003.

OAO 93 (Rev. 10/03) Search Warrant

RETURN Case Number: H-08-470M /

DATE WARRANT RECEIVED DATE AND TIME WARRANT EXECUTED COPY OF WARRANT AND RECEIPT FOR ITEMS LEFT WITH
June 18, 2008 June 25, 2008 7:00 a.m. Mubarik Kahlon, Owner
INVENTORY MADE IN THE PRESENCE OF
Mubarik Kahlon, ICE Seized Property Specialist Shirley Black, Senior Special Agent Calvin Bradford
INVENTORY OF PERSON OR PROPERTY TAKEN PURSUANT TO THE WARRANT

See Attached List

CERTIFICATION

I swear that this inventory is a true and detailed account of the person or property taken by me pursuant to this warrant.

Subscribed, sworn to, and returned before me this date.

United States Judge Date

 AO 93 (Rev. 10/03) Search Warrant

UNITED STATES DISTRICT COURT

SOUTHERN District of TEXAS

In the Matter of the Search of

(Name, address or brief description of person or property to be searched)
SEARCH WARRANT

Action Rags, USA

1225 Port Houston Street
Houston, Texas 77029 Case Number:

TO: Any Federal Agent lized Officer of the United States:

Affidavit(s) having been made before me by Calvin W. Bradford (ICE) who has reason to believe
Affiant

that on the person of, or on the premises known as (name, description and/or location)
Action Rags, USA, which is located at 1225 Port Houston Street, Houston, Texas 77029, and more specifically described in
Attachment " B " of the affidavit herein incorporated by reference

in the Southern District of Texas there is now concealed a certain person or property, namely (describe the person or property)

Undocumented aliens, records, documents, computer floppy disks and other items more particularly described in Attachment " C " of
the affidavit herein incorporated by reference

I am satisfied that the affidavit(s) and any recorded testimony establish probable cause to believe that the person or property so
described is now concealed on the person or premises above-described and establish grounds for the issuance of this warrant.

YOU ARE HEREBY COMMANDED to search on or before

Dale

(not to exceed 10 days) the person or place named above for the person or property specified, serving this warrant and making the
search • in the daytime — 6:00 a.m. to 10:00 p.m.
and if the person or property be found there to seize same, leaving a copy of this warrant and receipt tor the person
or property taken, and prepare a written inventory of the person or property seized and promptly return this warrant to any
United States Judge as required by law.

Date and Time Issued

MARY MILLOY, United States Magistrate Judge

Name and Title of Judicial Officer
 Inventory Listing of All Items Seized at Search Warrant Site

Site Name: Investigation Number: Report Date;

Action Rags, USA HO19NR07
Starting Date and Time:
1225 Port Houston Street 06/25/2008 07:00 AM
Houston, Texas 77029 Ending Date and Time:
06/25/2008 01:13 PM
Control #: 1 Evidence Box:
Location: File Room Locator Code: D-3
Found: File Cabinet
Description: Seized Per Warrant Payroll Records for 2008

Control #: 2 Evidence Box:

Location: File Room Locator Code: D-2
Found: File Cabinet
Description: Seized Per Warrant File Folders "Open Applications and Misc. Applications
(1) 3 Ring Binder "Employee Sign sheets"

Control #: 3 Evidence Box:

Location: Receptionist Office Locator Code: C - Shredder
Found: Shredder
Description: Seized Per Warrant Shredded l-9's Documents

Control #: 4 Evidence Box:

Location: Receptionist Office Locator Code: C
Found: On Floor
Description: Seized Per Warrant I-9's, copies of SS #'s and DL's

Control #: 5 Evidence Box:

Location: Receptionist Office Locator Code: C
Found: On Floor
Description: Seized Per Warrant Pakera Reports for employees

Control #: 6 Evidence Box:

Location: Receptionist Office Locator Code: C-3
Found: File w/Desk
Description: Seized Per Warrant Payments Records

Control #: 7 Evidence Box:

Location: File Room Locator Code: D-6
Found: File Cabinet
Description: Seized Per Warrant Employee Files

Page 1 of
Control #: 8 Evidence Box:
Location: Receptionist Office Locator Code: C
Found: On Floor
Description: Seized Per Warrant End Year tax statements, W-2's for employees.

Control #: 9 Evidence Box:

Location: Receptionist Office Locator Code: C-1
Found: Desk w/File
Description: Seized Per Warrant Earning statements, presence report, copies of bank
statements of payroll checks, Health Insurance, Claim Forms,
timecards, I-9 Stamp, Paybooks and steno.

Control #: 10 Evidence Box:

Location: File Room Locator Code: D-5
Found: File Cabinet - Drawer #1
Description: Seized Per Warrant Timecard

Control #: 11 Evidence Box:

Location: Receptionist Office Locator Code: C-2
Found: Pearl's Desk
Description: Seized Per Warrant Employment Applications w/Resident Alien Cards and SSN
Cards, I-9's, Time cards

Control #: 12 Evidence Box:

Location: Lobby Locator Code: A-1
Found: Timecard Board
Description: Seized Per Warrant Timecards

Control #: 13 Evidence Box:

Location: File Room Locator Code: D-1
Found: File Cabinet - 4th Drawer
Description: Seized Per Warrant Taxes for 2006

Control #: 14 Evidence Box:

Location: Receptionist Office Locator Code:
Found: On Floor
Description: Seized Per Warrant End year tax statements for employees W-2's

Control #: 15 Evidence Box:

Location: Boss Office #1 Locator Code: B-3
Found: File cabinet
Description: Seized Per Warrant ADP Employee's Payroll Records

Page 2 of
Control #: 16 Evidence Box:
Location: Boss Office #1 Locator Code: B-2
Found: Credenza
Description: Seized Per Warrant Earning Statements - Payroll

Control #: 17 Evidence Box:

Location: Boss Office #1 Locator Code: B-2
Found: Credenza
Description: Seized Per Warrant Misc. Papers, Daily Logs/Employee/Production

Control #: 18 Evidence Box:

Location: Boss Office #1 Locator Code: B-2
Found: Credenza
Description: Seized Per Warrant Earning Statements - Payroll

Control #: 19 Evidence Box:

Location: Boss Office #1 Locator Code: B-2
Found: Credenza right Side
Description: Seized Per Warrant Notepad/Employee List and Count Sheet

Control #: 20 Evidence Box:

Location: Boss Office #1 Locator Code: B-1
Found: Desk
Description: Seized Per Warrant Ledger/Meto Bank Account Statement

Control #: 21 Evidence Box:

Location: Boss Office #1 Locator Code: B-3
Found: Credenza
Description: Seized Per Warrant Time Cards

Control #: 22 Evidence Box:

Location: File Room Locator Code: D
Found: Next to D-10
Description: Seized Per Warrant Time Cards

Control #: 23 Evidence Box:

Location: File Room Locator Code: D
Found: Found by D-10 by Desk
Description: Seized Per Warrant l-9's, applications, Employee files

Control #: 24 Evidence Box:

Location: Boss #2 Office Upstr Locator Code: E-1
Found: Desk
Description: Seized Per Warrant Financial Documents

Page 3 of
Control #: 25 Evidence Box:
Location: Boss #2 Office Upstr Locator Code: E-1
Found: In Black Bag under Desk
Description: Seized Per Warrant Financial Documents

Control #: 26 Evidence Box:

Location: Boss #2 Office Upstr Locator Code: E-2
Found: Credenza
Description: Seized Per Warrant Enterprise Bank Statements 2005-2006
Check stubs & Canceled checks 2005-2006
Payments for "Contract Labor"
Checks Cashed by "MACS check Cashing"
Bank Transfer Letter & Open New Acct. Docs

Control #: 27 Evidence Box:

Location: Boss #2 Office Upstr Locator Code: E-2
Found: Credenza
Description: Seized Per Warrant Financial Documents

Control #: 28 Evidence Box:

Location: Boss #2 Office Upstr Locator Code: E-2
Found: Credenza
Description: Seized Per Warrant Financial Documents

Control #: 29 Evidence Box:

Location: Boss #2 Office Upstr Locator Code: E-2
Found: Credenza
Description: Seized Per Warrant Financial Documents

Control #: 30 Evidence Box:

Location: Boss #2 Office Upstr Locator Code: E-2
Found: Credenza
Description: Seized Per Warrant Financial Documents

Control #: 31 Evidence Box:

Location: Boss #2 Office Upstr Locator Code: E-1
Found: Desk
Description: Seized Per Warrant Financial Desk

Control #: 32 Evidence Box:

Location: Boss #2 Office Upstr Locator Code: E-2
Found: Credenza
Description: Seized Per Warrant T & A Cards

Page 4 of
Control #: 33 Evidence Box:
Location: Boss #2 Office Upstr Locator Code: E-2
Found: Credenza
Description: Seized Per Warrant Financial Records

Control #: 34 Evidence Box:

Location: Boss #2 Office Upstr Locator Code: E-2
Found: Credenza
Description: Seized Per Warrant Financial Documents

Control #: 35 Evidence Box:

Location: File Room Locator Code: D-10
Found: File Cabinet
Description: Seized Per Warrant Pakera Reports

Control #: 36 Evidence Box:

Location: File Room Locator Code: D-8
Found: File Cabinet
Description: Seized Per Warrant Employee's Earning Statements

Control #: 37 Evidence Box:

Location: File Room Locator Code: D-8
Found: File Cabinet
Description: Seized Per Warrant Action Rags Earning Statements

Control #: 38 Evidence Box:

Location: File Room Locator Code: D-10
Found: File Cabinet
Description: Seized Per Warrant Time Cards

Control #: 39 Evidence Box:

Location: Receptionist Office Locator Code: C
Found: On Floor
Description: Seized Per Warrant I-9's and copies of SSN and DL's

Control #: 40 Evidence Box:

Location: File Room Locator Code: D-4
Found: File Cabinet
Description: Seized Per Warrant Time Cards, Notebooks used as time cards, Employee ID
Information, l-9's

Control #: 41 Evidence Box:

Location: File Room Locator Code: D-10
Found: File Cabinet
Description: Seized Per Warrant Employer Records

Page 5 of
Control #: 42 Evidence Box;
Location: File Room Locator Code: D-10
Found: File cabinet
Description: Seized Per Warrant Time Cards

Control #: 43 Evidence Box:

Location: File Room Locator Code: D-10
Found: File Cabinet
Description: Seized Per Warrant I-9's (2003)

Control #: 44 Evidence Box:

Location: Receptionist Office Locator Code: C
Found: On Floor
Description: Seized Per Warrant I-9's

Control #: 45 Evidence Box:

Location: File Room Locator Code: D-7
Found: File Cabinet
Description: Seized Per Warrant Bank Records/Payroll Records/ DOL Information

Control #: 46 Evidence Box:

Location: File Room Locator Code: D-4
Found: File Cabinet
Description: Seized Per Warrant Pakera Report and Attendance Records

Control #: 47 Evidence Box:

Location: File Room Locator Code: D-3
Found: File Cabinet
Description: Seized Per Warrant Employee Files

Control #: 48 Evidence Box:

Location: File Room Locator Code: D-3
Found: File Cabinet
Description: Seized Per Warrant Timecards

Control #: 49 Evidence Box:

Location: File Room Locator Code: D-3
Found: File Cabinet
Description: Seized Per Warrant Time Cards

Control #: 50 Evidence Box:

Location: File Room Locator Code: D-3
Found: File Cabinet
Description: Seized Per Warrant ADP Reports

Page 6 of
Control #: 51 Evidence Box:
Location: File Room Locator Code: D-3
Found: Fife Cabinet
Description: Seized Per Warrant ADP Reports

Control #: 52 Evidence Box:

Location: File Room Locator Code: D-2
Found: File Cabinet
Description: Seized Per Warrant Time Cards

Page 7 of
HO19NR07 C -Receptionist Office #1
Pearl's Desk
06/25/2008 By: Black
Locating Investigator: DH
Dell CPU SN#6QQNC91
 Appendix D

SSA Sample No Match Letter Insert

Social Security Administration
Retirement, Survivors and Disability Insurance
Employer Correction Request CODE V
Office of Central Operations
300 N. Greene Street
Baltimore, MD 21290-0300
Date:
EIN:

E M P L O Y E R S NAME
STREET ADDRESS
CITY, STATE ZIP

Establishment Number: MRN: WFID:

Why You Are Getting This Letter

S o m e employee n a m e s a n d Social Security n u m b e r s t h a t you r e p o r t e d o n t h e

W a g e a n d T a x S t a t e m e n t s ( F o r m s W - 2 ) for t a x y e a r 2 0 0 6 d o n o t a g r e e w i t h o u r
r e c o r d s . W e n e e d c o r r e c t e d i n f o r m a t i o n from y o u s o t h a t w e c a n c r e d i t y o u r
employees' e a r n i n g s to their Social Security records. It is i m p o r t a n t b e c a u s e
t h e s e r e c o r d s c a n d e t e r m i n e if s o m e o n e is entitled to Social S e c u r i t y r e t i r e m e n t ,
disability a n d survivors benefits, a n d how m u c h he or s h e c a n receive. If the
information you report to us is incorrect, y o u r employee m a y not get benefits he
o r s h e is d u e .

There are several c o m m o n reasons why the information reported to us does not
agree with our records, including:

? E r r o r s w e r e m a d e in spelling an employee's n a m e or listing t h e Social

Security number;

? An e m p l o y e e d i d n o t r e p o r t a n a m e c h a n g e following a m a r r i a g e or d i v o r c e ;

? T h e n a m e o r S o c i a l S e c u r i t y n u m b e r w a s i n c o m p l e t e o r left b l a n k o n t h e
F o r m W-2 r e p o r t s e n t t o t h e S o c i a l S e c u r i t y A d m i n i s t r a t i o n ; a n d

? T h e n a m e o r S o c i a l S e c u r i t y n u m b e r r e p o r t e d i s false, o r t h e n u m b e r
w a s assigned to s o m e o n e else.

IMPORTANT: T h i s l e t t e r d o e s n o t i m p l y t h a t y o u o r y o u r e m p l o y e e i n t e n t i o n a l l y
gave t h e g o v e r n m e n t wrong information a b o u t t h e employee's n a m e or Social
S e c u r i t y n u m b e r . N o r d o e s it, b y itself, m a k e a n y s t a t e m e n t a b o u t a n e m p l o y e e ' s
immigration status.

See Next Page

Visit o u r website at www.socialsecurity.gov
99-9999999
 You s h o u l d n o t u s e t h i s l e t t e r a l o n e t o t a k e a n y a d v e r s e a c t i o n a g a i n s t a n
e m p l o y e e , s u c h a s l a y i n g off, s u s p e n d i n g , firing, o r d i s c r i m i n a t i n g a g a i n s t t h a t
i n d i v i d u a l , j u s t b e c a u s e h i s o r h e r S o c i a l S e c u r i t y n u m b e r a p p e a r s o n t h e list.
D o i n g s o c o u l d , i n fact, v i o l a t e S t a t e o r F e d e r a l l a w a n d s u b j e c t y o u t o legal
c o n s e q u e n c e s , You s h o u l d , h o w e v e r , follow t h e i n s t r u c t i o n s c o n t a i n e d i n t h e
a t t a c h e d d o c u m e n t , "How T o C o r r e c t S o c i a l S e c u r i t y N u m b e r s " a n d t h e a t t a c h e d
l e t t e r from t h e D e p a r t m e n t o f H o m e l a n d S e c u r i t y . You s h o u l d a p p l y t h e
p r o c e d u r e s p r o v i d e d i n t h e s e l e t t e r s u n i f o r m l y t o all e m p l o y e e s . You s h o u l d n o t
ignore this letter a n d do nothing. That could jeopardize y o u r employee's future
benefits a n d , as the D e p a r t m e n t of Homeland Security h a s advised u s , expose you
t o liability u n d e r t h e i m m i g r a t i o n l a w s .

For Spanish-speaking individuals: Esta carta y los documentos adjuntos

proveen información sobre las acciones que usted debe de tomar para corregir
algunos de los nombres y números de Seguro Social que informó en los
Comprobantes de Contribuciones y Salarios (formularios W-2, "Wage and Tax
Statement", en inglés) de sus empleados. Si usted necesita una traducción de
esta carta, por favor llámenos al número de teléfono gratis, 1-800-772-1213,
de 7 a.m. a 7 p.m. de lunes a viernes.

IMPORTANTE: Esta carta no implica que usted o su empleado dieron al

gobierno la información incorrecta del nombre o número de Seguro Social
del empleado intencionalmente. Tampoco hace, por sí misma, ninguna
declaración sobre el estado inmigratorio de un empleado.

Usted no debe usar sólo esta carta para tomar alguna acción adversa contra
el empleado, tal como suspender, despedir o discriminar contra el
individuo, simplemente porque su número de Seguro Social aparece en la
lista. De hecho, de hacerlo, podría violar la ley estatal o federal y estar
sujeto a enfrentar consecuencias legales. No obstante, usted debe seguir las
instrucciones contenidas en el documento adjunto, "Cómo corregir los
números de Seguro Social" y la carta del Departamento de Seguridad
Nacional adjunta. Usted debe aplicar los procedimientos enumerados en
estas cartas uniformemente a todos sus empleados. Usted no debe ignorar
esta carta ni dejar de tomar acción sobre ella. Eso puede comprometer el
futuro de los beneficios del empleado y como el Departamento de Seguridad
Nacional nos ha informado, exponerlo a usted a cargos bajo la ley de
inmigración.

What You Should Do

It would be a great help to us if you could r e s p o n d within 60 d a y s with t h e
information t h a t you are able to correct so t h a t the Social Security
A d m i n i s t r a t i o n c a n m a i n t a i n a n a c c u r a t e e a r n i n g s r e c o r d for e a c h e m p l o y e e a n d
m a k e s u r e y o u r e m p l o y e e s get t h e b e n e f i t s t h e y a r e d u e .

Visit our website at www.socialsecurity.gov

99-9999999
 We have attached s o m e materials to help you:

? A list o f t h e S o c i a l S e c u r i t y n u m b e r s t h a t d o n o t m a t c h o u r r e c o r d s . (If
t h e list s h o w s y o u h a v e "MORE" S o c i a l S e c u r i t y n u m b e r s t o c o r r e c t t h a n
l i s t e d , p l e a s e call u s a t 1-800-772-6270 for a s s i s t a n c e . )
? I n s t r u c t i o n s o n "How T o C o r r e c t S o c i a l S e c u r i t y N u m b e r s . "
? T i p s o n " A n n u a l W a g e R e p o r t Filing" for t h e f u t u r e .

If You Have Any Questions

I f y o u h a v e a n y q u e s t i o n s , a b o u t t h i s l e t t e r , p l e a s e call u s toll-free a t
1-800-772-6270 between 7 a.m. a n d 7 p.m., E a s t e r n Time, M o n d a y t h r o u g h
F r i d a y . W e c a n a n s w e r m o s t q u e s t i o n s o v e r t h e p h o n e . You c a n a l s o w r i t e u s a t
t h e a d d r e s s s h o w n o n t h e first p a g e o f t h i s letter, I f y o u call, p l e a s e h a v e t h i s
l e t t e r w i t h y o u . I t will h e l p u s a n s w e r y o u r q u e s t i o n s . Also, g e n e r a l p r o g r a m
i n f o r m a t i o n is available from o u r w e b s i t e at w w w . s o c i a l s e c u r i t v . g o v / e m p l o y e r . If
y o u h a v e q u e s t i o n s a b o u t t h e D e p a r t m e n t o f H o m e l a n d Security letter, y o u
s h o u l d call 8 0 0 - 4 2 1 - 7 1 0 5 .

Carolyn L. S i m m o n s
A s s o c i a t e C o m m i s s i o n e r for
Central Operations

Enclosure

Visit our website at www.socialsecurity.gov

99-9999999
 SOCIAL SECURITY NUMBERS THAT DO NOT MATCH OUR RECORDS
000-00-0000 000-00-0000 000-00-0000 000-00-0000
000-00-0000 000-00-0000 000-00-0000 000-00-0000
000-00-0000 000-00-0000 000-00-0000 000-00-0000
000-00-0000 000-00-0000 000-00-0000 000-00-0000
000-00-0000 000-00-0000 000-00-0000 000-00-0000
000-00-0000 000-00-0000 000-00-0000 000-00-0000
000-00-0000 000-00-0000 000-00-0000 000-00-0000
000-00-0000 000-00-0000 000-00-0000 000-00-0000
000-00-0000 000-00-0000 000-00-0000 000-00-0000
000-00-0000 000-00-0000 000-00-0000 000-00-0000
000-00-0000 000-00-0000 000-00-0000 000-00-0000
000-00-0000 000-00-0000 000-00-0000 000-00-0000

Visit our website at www.socialsecurity.gov

99-9999999
 How To Correct Social Security Numbers (SSNs)
C o m p l e t e F o r m s W-2c ( C o r r e c t e d W a g e a n d T a x S t a t e m e n t ) for e a c h o f t h e S o c i a l
S e c u r i t y n u m b e r s (SSNs) l i s t e d t h a t y o u a r e a b l e t o c o r r e c t . You o n l y n e e d t o
p r e p a r e F o r m s W - 2 c for t h e n a m e s o r S S N s for w h i c h y o u h a v e c o r r e c t e d
information. If an employee does not provide corrected information or no longer
w o r k s for y o u a n d y o u a r e u n a b l e t o c o n t a c t h i m / h e r , d o c u m e n t y o u r r e c o r d s
w i t h t h e i n f o r m a t i o n y o u r e l i e d o n i n c o m p l e t i n g t h e F o r m W-2 o r t h e efforts y o u
m a d e t o c o n t a c t y o u r f o r m e r e m p l o y e e . R e t a i n t h i s i n f o r m a t i o n i n y o u r files; d o
n o t s e n d i t t o t h e S o c i a l S e c u r i t y A d m i n i s t r a t i o n (SSA.) You s h o u l d p r o v i d e all
corrections as soon as possible.

You a l s o n e e d t o file a F o r m W-3c ( T r a n s m i t t a l o f C o r r e c t e d W a g e a n d T a x

S t a t e m e n t s ) w h e n e v e r y o u file F o r m s W-2c.

P l e a s e follow t h e g u i d e l i n e s b e l o w w h e n p r e p a r i n g F o r m s W-2c.

? Refer t o t h e I n t e r n a l R e v e n u e S e r v i c e (IRS) filing r e q u i r e m e n t s in its

p u b l i c a t i o n , " I n s t r u c t i o n s for F o r m s W - 2 c a n d W - 3 c , " a t t h e IRS w e b s i t e
w w w . i r s . g o v o r call 1 - 8 0 0 - 8 2 9 - 3 6 7 6 t o r e q u e s t a c o p y .

? C o m p a r e y o u r e m p l o y m e n t r e c o r d s t o t h e F o r m s W-2 y o u r e p o r t e d for t h e
S S N s i n c l u d e d o n t h e a t t a c h e d list.

? I f y o u r e m p l o y m e n t r e c o r d s a n d F o r m s W-2 d o n o t m a t c h , p r e p a r e F o r m s
W - 2 c w i t h t h e c o r r e c t e d i n f o r m a t i o n from y o u r e m p l o y m e n t r e c o r d s . (Do
n o t s e n d c o p i e s o f p r o o f s o f i d e n t i t y o r o t h e r d o c u m e n t s i n a d d i t i o n to, o r i n
p l a c e of, t h e F o r m s W-2c.)

? I f y o u r e m p l o y m e n t r e c o r d s a n d F o r m s W-2 m a t c h , a s k y o u r e m p l o y e e t o
c h e c k h i s / h e r Social S e c u r i t y c a r d a n d t o inform you o f a n y n a m e o r SSN
difference b e t w e e n y o u r r e c o r d s a n d h i s / h e r card. If y o u r e m p l o y m e n t
records a r e incorrect, correct your records.

? If y o u r r e c o r d s m a t c h t h e information on t h e employee's Social Security

c a r d , h a v e t h e e m p l o y e e c o n t a c t a n y S o c i a l S e c u r i t y office t o r e s o l v e t h e
i s s u e . Tell t h e e m p l o y e e t h a t o n c e h e / s h e h a s v i s i t e d t h e S o c i a l S e c u r i t y
office h e / s h e s h o u l d i n f o r m y o u o f a n y c h a n g e s a n d y o u s h o u l d c o r r e c t
y o u r records accordingly.

? SSA m a y a l s o s e n d t h e e m p l o y e e a n o t i c e r e g a r d i n g t h i s i s s u e . You s h o u l d
discuss with the employee any changes you m a k e to your employment
records.

? If y o u file y o u r F o r m W-2c c o r r e c t i o n s e l e c t r o n i c a l l y , call SSA at

1-800-772-6270 t o r e q u e s t a c o p y o f t h e " M a g n e t i c M e d i a R e p o r t i n g a n d
E l e c t r o n i c Filing o f W-2c I n f o r m a t i o n (MMREF-2)" o r y o u c a n
download t h e MMREF-2 at SSA's website, www.socialsecuritv.gov/employer.

Visit o u r website at www.socialsecurity.gov

99-999999
 ? You m a y a l s o file y o u r F o r m W - 2 c c o r r e c t i o n s u s i n g W - 2 c O n l i n e . W - 2 c
O n l i n e i s o n e o f s e v e r a l B u s i n e s s S e r v i c e s O n l i n e (BSO) I n t e r n e t s e r v i c e s
for b u s i n e s s e s a n d e m p l o y e r s w h o e x c h a n g e i n f o r m a t i o n w i t h t h e S o c i a l
Security Administration.

To begin using BSO, you m u s t complete a one-time registration process. To

register, go to w w w . s o c i a l s e c u r i t y . g o v / b s o / b s o w e l c o m e . h t m .

? W e s u g g e s t u s i n g A c c u W 2 C t o identify p o s s i b l e M M R E F - 2 f o r m a t t i n g
e r r o r s . Y o u c a n d o w n l o a d A c c u W 2 C from t h e I n t e r n e t a t :

www.socialsecurity.gpy/employer/accuwage

? I f y o u f i l e p a p e r F o r m s W-2c, y o u c a n get t h e m from t h e I n t e r n a l R e v e n u e

S e r v i c e . P a p e r F o r m s W-2c s h o u l d b e s e n t t o o n e o f t h e following
addresses:

I f y o u u s e t h e U.S. Postal Service, s e n d t h e f o r m s t o :

Social Security Administration
Data Operations Center
Attention: W-2c Process
P . O . B o x 3333
W i l k e s - B a r r e , P e n n s y l v a n i a 18767-3333

If y o u u s e a carrier other than the U.S. Postal Service, s e n d t h e

forms to:
Social Security Administration
Data Operations Center
Attn: W - 2 c P r o c e s s
1 1 5 0 E . M o u n t a i n Drive
Wilkes-Barre, PA 1 8 7 0 2 - 7 9 9 7

Visit o u r website at www.socialsecurity.gov

99-9999999
Tips on Annual Wage Report Filing
Why Accurate Names and SSNs are Important

Accurate n a m e s a n d SSNs are important to you a n d your

e m p l o y e e s for s e v e r a l r e a s o n s . W e u s e t h e n a m e a n d S S N t o
m a i n t a i n a r e c o r d o f p e r s o n a l e a r n i n g s for e a c h o f y o u r e m p l o y e e s .
G e n e r a l l y , w e a r e n o t a b l e t o give a n e m p l o y e e c r e d i t
for h i s o r h e r e a r n i n g s u n l e s s t h e n a m e a n d S S N r e p o r t e d o n t h e
F o r m W-2 a g r e e w i t h o u r r e c o r d s . I t i s m o s t i m p o r t a n t t h a t t h e s e
records are correct since we later u s e t h e m to decide if t h e
individual c a n receive Social Security benefit p a y m e n t s a n d t h e
a m o u n t of any payments due.

Filing Tips To Ensure Accuracy

Before y o u file y o u r n e x t a n n u a l w a g e r e p o r t , p l e a s e m a k e s u r e y o u r
e m p l o y m e n t r e c o r d s a n d t h e F o r m s W-2 y o u r e p o r t h a v e y o u r
employees' correct n a m e s a n d SSNs. Use t h e tips below to e n s u r e
accuracy.

? W e e n c o u r a g e y o u t o u s e S S A ' s E m p l o y e e Verification S e r v i c e
(EVS) p r i o r t o s u b m i t t i n g F o r m s W-2 t o SSA for p r o c e s s i n g .
E V S i s a free, c o n v e n i e n t a n d s e c u r e m e t h o d for e m p l o y e r s t o
verify t h a t e m p l o y e e n a m e s a n d S S N s m a t c h S S A ' s r e c o r d s .
EVS i s n o t t o b e u s e d t o s c r e e n j o b a p p l i c a n t s . A n e g a t i v e EVS
response m a k e s no statement about your employee's
i m m i g r a t i o n s t a t u s . Visit o u r w e b s i t e a t
w w w . s o c i a l s e c u r i t y . g o v / e m p l o y e r a n d s e l e c t S S N Verification
or call toll-free 1-800-772-6270 for f u r t h e r d e t a i l s .

? A s k y o u r e m p l o y e e s t o c h e c k t h e i r l a t e s t F o r m s W-2 a g a i n s t
their Social Security c a r d s a n d to inform you of a n y n a m e or
S S N d i f f e r e n c e s o n t h e t w o . I f t h e F o r m W-2 i s i n c o r r e c t ,
c o r r e c t y o u r r e c o r d s a n d p r e p a r e a F o r m W-2c. I f t h e c a r d i s
incorrect, advise the employee to r e q u e s t a corrected card
from t h e n e a r e s t S o c i a l S e c u r i t y office.

? Remind y o u r employees n e a r the e n d of each year to report to

Social S e c u r i t y n a m e c h a n g e s d u e to m a r r i a g e , divorce, or
other reasons.

? Ask e a c h new employee to check his or her Social Security card

a n d inform y o u of the n a m e a n d SSN exactly as s h o w n on the
c a r d . (While t h e e m p l o y e e m u s t f u r n i s h t h e S S N t o y o u , t h e
employee is not required to s h o w t h e Social Security card. But,
s e e i n g t h e c a r d will h e l p e n s u r e t h a t all r e c o r d s a r e correct.)

? Direct those w h o do not have SSNs or c a r d s to contact their

n e a r e s t S o c i a l S e c u r i t y office.

? E n s u r e t h a t t h e S S N s y o u r e p o r t a r e valid. A valid SSN m u s t

h a v e a t o t a l o f n i n e d i g i t s . T h e first t h r e e d i g i t s a r e r e f e r r e d t o
 a s t h e a r e a , t h e n e x t t w o a s t h e g r o u p , a n d t h e l a s t four a s
t h e s e r i a l . N o S S N s w i t h a 000 a r e a n u m b e r , o r a n a r e a
n u m b e r i n t h e 800 o r 900 s e r i e s , h a v e b e e n i s s u e d . Also, n o
S S N s w i t h a 0 0 g r o u p o r 0000 s e r i a l n u m b e r h a v e b e e n i s s u e d ,

? If y o u file e l e c t r o n i c a l l y , be s u r e t h a t all of y o u r
employees' n a m e s are correctly e n t e r e d in t h e
a p p r o p r i a t e fields o f t h e C o d e R W " E m p l o y e e W a g e
Record."

F o r m o r e i n f o r m a t i o n s e e SSA P u b l i c a t i o n " M a g n e t i c
Media
R e p o r t i n g a n d E l e c t r o n i c Filing ( M M R E F - 1 ) . "

? I f y o u file o n p a p e r , b e s u r e t o e n t e r y o u r e m p l o y e e s '
n a m e s o n t h e F o r m s W-2 a s follows: first n a m e , m i d d l e
initial, a n d l a s t n a m e e x a c t l y a s s h o w n o n t h e i r S o c i a l
S e c u r i t y c a r d s . S e e IRS P u b l i c a t i o n 3 9 3 , " F e d e r a l
Employment Tax Forms."

F o r IRS f o r m s or p u b l i c a t i o n s , call 1-800-TAX-FORM (829-3676),

o r visit IRS' w e b s i t e a t w w w . i r s . g o v .

F o r SSA f o r m s o r p u b l i c a t i o n s , call S S A ' s E m p l o y e r 800 N u m b e r .

1-800-772-6270, o r visit S S A ' s w e b s i t e a t
www.socialsecuritv.gov/employer.

Visit our website at www.socialsecurity.gov

99-9999
 Appendix E

ICE No-Match Letter Insert

 Immigration and Customs Enforcement
U.S. Department of Homeland Security
Washington, DC 20536

Homeland
Security

Dear Employer:

The purpose of this letter is to provide you with additional guidance on how to respond
to the enclosed letter from the Social Security Administration (SSA) in a manner that
is consistent with your obligations under United States immigration laws.

You are now aware that the Social Security numbers you have provided on W-2 Forms
for certain employees do not match SSA's records. Many employers that receive this
information are concerned about how to respond appropriately, and whether the
receipt of such information implicates an employer's obligations under the
Immigration and Nationality Act. This letter will answer the common questions arising
from this situation.

Q: Can I simply disregard t h e letter from SSA?

A: No. You have received official notification of a problem that may have significant
legal consequences for you and your employees. If you elect to disregard the notice
you have received and if it is determined that some employees listed in the enclosed
letter were not authorized to work, the Department of Homeland Security (DHS) could
determine that you have violated the law by knowingly continuing to employ
unauthorized persons. This could lead to civil and criminal sanctions.

Q: What should I d o ?

A: You s h o u l d t a k e reasonable s t e p s to resolve t h e m i s m a t c h , and apply these

reasonable steps uniformly to all employees listed in the enclosed SSA letter. It is
possible that a mismatch was the result of a clerical error on the part of the employee,
the employer, or the government.

You should;

1) Promptly (no later than 30 days) check your records to ensure that the
mismatch was not the result of an error on your part;

2) If this does not resolve the problem, ask your employee to confirm the accuracy
of your records;

3) If necessary, ask the employee to resolve the issue with SSA;

4) If you were able to successfully resolve the mismatch, make sure you have followed
all of the instructions in the enclosed SSA letter. You should also verify that the
correction has been made by using the Social Security Number Verification System
(SSNVS) administered by SSA, and retain a record of the date and time of your
verification. SSNVS can be accessed through
http://www.socialsecurity.gov/employer/ssnv.htm or by telephone at 1-800-772-
6270; and

5) If none of the foregoing measures resolves the matter within 90 days of receipt of
this letter, you should complete, within three days, a new I-9 Form as if the employee
in question were newly hired, except that no document may be used to verify the
employee's authorization for work that uses the questionable Social Security number
and no document may be used to verify the employee's identity that does not have a
photograph of the employee.

If you cannot confirm that the employee is authorized to work (by following the above
procedures), you risk liability for violating the law by knowingly continuing to employ
unauthorized persons.
Q: D o e s receiving a m i s m a t c h letter, s t a n d i n g a l o n e , i n d i c a t e t h a t I o u g h t to
t e r m i n a t e t h e e m p l o y e e s w h o s e n u m b e r s did n o t m a t c h SSA records?

A: There are many reasons for a mismatch between employer and SSA records,
including transcription errors and name changes due to marriage that are not
reported to SSA. Employers should not assume that the mismatch is the result of any
wrongdoing on the part of the employee. Moreover, an employer who takes action
against an employee based on nothing more substantial than a mismatch letter may,
in fact, violate the law.

Q: Will I be liable for discrimination charges brought by t h e United S t a t e s if I

t e r m i n a t e t h e e m p l o y e e after following t h e s t e p s o u t l i n e d a b o v e ?

A: No. An employer that receives such a letter and terminates employees without
attempting to resolve the mismatches, or who treats employees differently based upon
national origin or other prohibited characteristics, may be found to have engaged in
unlawful discrimination. However, if an employer that follows all of the procedures
outlined by DHS in this letter (and http://www.ice.gov) cannot determine that an
employee is authorized to work in the United States, and therefore terminates that
employee, and if that employer applied the same procedures to all employees
referenced in the mismatch letter, then that employer will not be subject to suit by the
United States under the Immigration and Nationality Act's anti-discrimination
provision.

If you have any additional questions, please visit http://www.ice.gov for extensive
information or feel free to contact the Immigration and Customs Enforcement Office of
Investigations at
1-800-421-7105.
 Appendix F

U.S. Attorney's Office Manual, Title 9, Chapter 9-28.000,

Principles of Federal Prosecution of Businesses
 Title 9, Chapter 9-28.000

Principles of Federal Prosecution of Business Organizations

9-28.000 Principles of Federal Prosecution of Business Organizations

9-28.100 Duties of Federal Prosecutors and Duties of Corporate Leaders

9-28.200 General Considerations of Corporate Liability

9-28.300 Factors to Be Considered

9-28.400 Special Policy Concerns

9-28.500 Pervasiveness of Wrongdoing Within the Corporation

9-28.600 The Corporation's Past History

9-28.700 The Value of Cooperation

9-28.710 Attorney-Client and Work Product Protections
9-28.720 Cooperation; Disclosing the Relevant Facts
9-28.730 Obstructing the Investigation
9-28.740 Offering Cooperation: No Entitlement to Immunity
9-28.750 Qualifying for Immunity, Amnesty, or Reduced Sanctions Through Voluntary
Disclosures
9-28.760 Oversight Concerning Demands for Waivers of Attorney-Client Privilege or
Work Product By Corporations Contrary to This Policy

9-28.800 Corporate Compliance Programs

9-28.900 Restitution and Remediation

9-28.1000 Collateral Consequences

9-28.1100 Other Civil or Regulatory Alternatives

9-28.1200 Selecting Charges

9-28.1300 Plea Agreements with Corporations

 1
9-28.000 Principles of Federal Prosecution of Business Organizations

9-28.100 Duties of Federal Prosecutors and Duties of Corporate Leaders

The prosecution of corporate crime is a high priority for the Department of Justice. By
investigating allegations of wrongdoing and by bringing charges where appropriate for criminal
misconduct, the Department promotes critical public interests. These interests include, to take
just a few examples: (1) protecting the integrity of our free economic and capital markets; (2)
protecting consumers, investors, and business entities that compete only through lawful means:
and (3) protecting the American people from misconduct that would violate criminal laws
safeguarding the environment.

In this regard, federal prosecutors and corporate leaders typically share common goals.
For example, directors and officers owe a fiduciary duty to a corporation's shareholders, the
corporation's true owners, and they owe duties of honest dealing to the investing public in
connection with the corporation's regulatory filings and public statements. The faithful
execution of these duties by corporate leadership serves the same values in promoting public
trust and confidence that our criminal cases are designed to serve.

A prosecutor's duty to enforce the law requires the investigation and prosecution of
criminal wrongdoing if it is discovered. In carrying out this mission with the diligence and
resolve necessary to vindicate the important public interests discussed above, prosecutors should
be mindful of the common cause we share with responsible corporate leaders. Prosecutors
should also be mindful that confidence in the Department is affected both by the results we
achieve and by the real and perceived ways in which we achieve them. Thus, the manner in
which we do our job as prosecutors—including the professionalism we demonstrate our
willingness to secure the facts in a manner that encourages corporate compliance and self-
regulation, and also our appreciation that corporate prosecutions can potentially harm blameless
investors, employees, and others—affects public perception of our mission. Federal prosecutors
recognize that they must maintain public confidence in the way in which they exercise their
charging discretion. This endeavor requires the thoughtful analysis of all facts and
circumstances presented in a given case. As always, professionalism and civility play an
important part in the Department's discharge of its responsibilities in all areas, including the area
of corporate investigations and prosecutions.

9-28.200 General Considerations of Corporate Liability

A. General Principle: Corporations should not be treated leniently because of their

artificial nature nor should they be subject to harsher treatment. Vigorous enforcement of the
criminal laws against corporate wrongdoers, where appropriate, results in great benefits for law
enforcement and the public, particularly in the area of white collar crime. Indicting corporations

1
While these guidelines refer to corporations, they apply to the consideration of the
prosecution of all types of business organizations, including partnerships, sole proprietorships,
government entities, and unincorporated associations.
for wrongdoing enables the government to be a force for positive change of corporate culture,
and a force to prevent, discover, and punish serious crimes.

B. Comment: In all cases involving corporate wrongdoing, prosecutors should consider

the factors discussed further below. In doing so, prosecutors should be aware of the public
benefits that can flow from indicting a corporation in appropriate cases. For instance,
corporations are likely to take immediate remedial steps when one is indicted for criminal
misconduct that is pervasive throughout a particular industry, and thus an indictment can provide
a unique opportunity for deterrence on a broad scale. In addition, a corporate indictment may
result in specific deterrence by changing the culture of the indicted corporation and the behavior
of its employees. Finally, certain crimes that carry with them a substantial risk of great public
harm—e.g., environmental crimes or sweeping financial frauds— may be committed by a
business entity, and there may therefore be a substantial federal interest in indicting a
corporation under such circumstances.

In certain instances, it may be appropriate, upon consideration of the factors set forth
herein, to resolve a corporate criminal case by means other than indictment. Non-prosecution
and deferred prosecution agreements, for example, occupy an important middle ground between
declining prosecution and obtaining the conviction of a corporation. These agreements are
discussed further in Section X, infra. Likewise, civil and regulatory alternatives may be
appropriate in certain cases, as discussed in Section XI, infra.

Where a decision is made to charge a corporation, it docs not necessarily follow that
individual directors, officers, employees, or shareholders should not also be charged.
Prosecution of a corporation is not a substitute for the prosecution of criminally culpable
individuals within or without the corporation. Because a corporation can act only through
individuals, imposition of individual criminal liability may provide the strongest deterrent
against future corporate wrongdoing. Only rarely should provable individual culpability not be
pursued, particularly if it relates to high-level corporate officers, even in the face of an offer of a
corporate guilty plea or some other disposition of the charges against the corporation.

Corporations are "legal persons," capable of suing and being sued, and capable of
committing crimes. Under the doctrine of respondeat superior, a corporation may be held
criminally liable for the illegal acts of its directors, officers, employees, and agents. To hold a
corporation liable for these actions, the government must establish that the corporate agent's
actions (i) were within the scope of his duties and (it) were intended, at least in part, to benefit
the corporation. In all cases involving wrongdoing by corporate agents, prosecutors should not
limit their focus solely to individuals or the corporation, but should consider both as potential
targets.

Agents may act for mixed reasons—both for self-aggrandizement (both direct and
indirect) and for the benefit of the corporation, and a corporation may be held liable as long as
one motivation of its agent is to benefit the corporation. See United States v. Potter, 463 F.3d 9.
25 (1st Cir. 2006) (stating that the test to determine whether an agent is acting within the scope

2
of employment is "whether the agent is performing acts of the kind which he is authorized to
perform, and those acts are motivated, at least in part, by an intent to benefit the corporation.").
In United States v. Automated Medical Laboratories, Inc., 770 F.2d 399 (4th Cir. 1985), for
example, the Fourth Circuit affirmed a corporation's conviction for the actions of a subsidiary's
employee despite the corporation's claim that the employee was acting for his own benefit,
namely his "ambitious nature and his desire to ascend the corporate ladder." Id. at 407. The
court stated, "Partucci was clearly acting in part to benefit AML since his advancement within
the corporation depended on AML's well-being and its lack of difficulties with the FDA." Id.;
see also United States v. Cincotta, 689 F.2d 238, 241-42 (1st Cir. 1982) (upholding a
corporation's conviction, notwithstanding the substantial personal benefit reaped by its miscreant
agents, because the fraudulent scheme required money to pass through the corporation's treasury
and the fraudulently obtained goods were resold to the corporation's customers in the
corporation's name).

Moreover, the corporation need not even necessarily profit from its agent's actions for it
to be held liable. In Automated Medical Laboratories, the Fourth Circuit stated:

[B]enefit is not a "touchstone of criminal corporate liability; benefit at best is an

evidential, not an operative, fact." Thus, whether the agent's actions ultimately
redounded to the benefit of the corporation is less significant than whether the
agent acted with the intent to benefit the corporation. The basic purpose of
requiring that an agent have acted with the intent to benefit the corporation,
however, is to insulate the corporation from criminal liability for actions of its
agents which may be inimical to the interests of the corporation or which may
have been undertaken solely to advance the interests of that agent or of a party
other than the corporation.

770 F.2d at 407 (internal citation omitted) (quoting Old Monastery Co. v. United States, 147
F.2d 905, 908 (4th Cir. 1945)).

9-28.300 Factors to Be Considered

A. General Principle: Generally, prosecutors apply the same factors in determining

whether to charge a corporation as they do with respect to individuals. See USAM § 9-27.220, et
seq. Thus, the prosecutor must weigh all of the factors normally considered in the sound
exercise of prosecutorial judgment: the sufficiency of the evidence; the likelihood of success at
trial; the probable deterrent, rehabilitative, and other consequences of conviction; and the
adequacy of noncriminal approaches. See id. However, due to the nature of the corporate
"person," some additional factors are present. In conducting an investigation, determining
whether to bring charges, and negotiating plea or other agreements, prosecutors should consider
the following factors in reaching a decision as to the proper treatment of a corporate target:

1. the nature and seriousness of the offense, including the risk of harm to the public,
and applicable policies and priorities, if any, governing the prosecution of

3
 corporations for particular categories of crime (see infra section IV);

2. the pervasiveness of wrongdoing within the corporation, including the complicity

in, or the condoning of, the wrongdoing by corporate management (see infra
section V);

3. the corporation's history of similar misconduct, including prior criminal, civil,

and regulatory enforcement actions against it (see infra section VI);

4; the corporation's timely and voluntary disclosure of wrongdoing and its

willingness to cooperate in the investigation of its agents (see infra section VII);

5. the existence and effectiveness of the corporation's pre-existing compliance

program (see infra section VIII);

6. the corporation's remedial actions, including any efforts to implement an effective

corporate compliance program or to improve an existing one, to replace
responsible management, to discipline or terminate wrongdoers, to pay restitution,
and to cooperate with the relevant government agencies (see infra section IX);

7. collateral consequences, including whether there is disproportionate harm to

shareholders, pension holders, employees, and others not proven personally
culpable, as well as impact on the public arising from the prosecution (see infra
section X);

8. the adequacy of the prosecution of individuals responsible for the corporation's

malfeasance; and

9. the adequacy of remedies such as civil or regulatory enforcement actions (see

infra section XI).

B. Comment: The factors listed in this section are intended to be illustrative of those
that should be evaluated and are not an exhaustive list of potentially relevant considerations,
Some of these factors may not apply to specific cases, and in some cases one factor may override
all others. For example, the nature and seriousness of the offense may be such as to warrant
prosecution regardless of the other factors. In most cases, however, no single factor will be
dispositive. In addition, national law enforcement policies in various enforcement areas may
require that more or less weight be given to certain of these factors than to others. Of course,
prosecutors must exercise their thoughtful and pragmatic judgment in applying and balancing
these factors, so as to achieve a fair and just outcome and promote respect for the law.

In making a decision to charge a corporation, the prosecutor generally has substantial

latitude in determining when, whom, how, and even whether to prosecute for violations of
federal criminal law. In exercising that discretion, prosecutors should consider the following

4
statements of principles that summarize the considerations they should weigh and the practices
they should follow in discharging their prosecutorial responsibilities. In doing so, prosecutors
should ensure that the general purposes of the criminal law—assurance of warranted
punishment, deterrence of further criminal conduct, protection of the public from dangerous and
fraudulent conduct, rehabilitation of offenders, and restitution for victims and affected
communities--are adequately met, taking into account the special nature of the corporate
"person."

9-28.400 Special Policy Concerns

A. General Principle; The nature and seriousness of the crime, including the risk of
harm to the public from the criminal misconduct, are obviously primary factors in determining
whether to charge a corporation. In addition, corporate conduct, particularly that of national and
multi-national corporations, necessarily intersects with federal economic, tax, and criminal law
enforcement policies. In applying these Principles, prosecutors must consider the practices and
policies of the appropriate Division of the Department, and must comply with those policies to
the extent required by the facts presented.

B. Comment: In determining whether to charge a corporation, prosecutors should take

into account federal law enforcement priorities as discussed above. See USAM § 9-27-230. In
addition, however, prosecutors must be aware of the specific policy goals and incentive
programs established by the respective Divisions and regulatory agencies. Thus, whereas natural
persons may be given incremental degrees of credit (ranging from immunity to lesser charges to
sentencing considerations) for turning themselves in, making statements against their penal
interest, and cooperating in the government's investigation of their own and others' wrongdoing,
the same approach may not be appropriate in all circumstances with respect to corporations. As
an example, it is entirely proper in many investigations for a prosecutor to consider the
corporation's pre-indictment conduct, e.g., voluntary disclosure, cooperation, remediation or
restitution, in determining whether to seek an indictment. However, this would not necessarily
be appropriate in an antitrust investigation, in which antitrust violations, by definition, go to the
heart of the corporation's business. With this in mind, the Antitrust Division has established a
firm policy, understood in the business community, that credit should not be given at the
charging stage for a compliance program and that amnesty is available only to the first
corporation to make full disclosure to the government. As another example, the Tax Division
has a strong preference for prosecuting responsible individuals, rather than entities, for corporate
tax offenses. Thus, in determining whether or not to charge a corporation, prosecutors must
consult with the Criminal, Antitrust, Tax, Environmental and Natural Resources, and National
Security Divisions, as appropriate.

9-28.500 Pervasiveness of Wrongdoing Within the Corporation

A. General Principle: A corporation can only act through natural persons, and it is
therefore held responsible for the acts of such persons fairly attributable to it. Charging a
corporation for even minor misconduct may be appropriate where the wrongdoing was pervasive

5
and was undertaken by a large number of employees, or by all the employees in a particular role
within the corporation, or was condoned by upper management. On the other hand, it may not
be appropriate to impose liability upon a corporation, particularly one with a robust compliance
program in place, under a strict respondeat superior theory for the single isolated act of a rogue
employee. There is, of course, a wide spectrum between these two extremes, and a prosecutor
should exercise sound discretion in evaluating the pervasiveness of wrongdoing within a
corporation.

B. Comment: Of these factors, the most important is the role and conduct of
management. Although acts of even low-level employees may result in criminal liability, a
corporation is directed by its management and management is responsible for a corporate culture
in which criminal conduct is either discouraged or tacitly encouraged. As stated in commentary
to the Sentencing Guidelines:

Pervasiveness [is] ease specific and [will] depend on the number, and degree of
responsibility, of individuals [with] substantial authority . . . who participated in,
condoned, or were willfully ignorant of the offense. Fewer individuals need to be
involved for a finding of pervasiveness if those individuals exercised a relatively
high degree of authority. Pervasiveness can occur either within an organization
as a whole or within a unit of an organization.

USSG § 8C2.5, cmt. (n.4).

9-28.600 The Corporation's Past History

A. General Principle: Prosecutors may consider a corporation's history of similar

conduct, including prior criminal, civil, and regulatory enforcement actions against it. in
determining whether to bring criminal charges and how best to resolve eases.

B. Comment: A corporation, like a natural person, is expected to learn from its mistakes.
A history of similar misconduct may be probative of a corporate culture that encouraged, or at
least condoned, such misdeeds, regardless of any compliance programs. Criminal prosecution of
a corporation may be particularly appropriate where the corporation previously had been subject
to non-criminal guidance, warnings, or sanctions, or previous criminal charges, and it cither had
not taken adequate action to prevent future unlawful conduct or had continued to engage in the
misconduct in spite of the warnings or enforcement actions taken against it. The corporate
structure itself (e.g., the creation or existence of subsidiaries or operating divisions) is not
dispositive in this analysis, and enforcement actions taken against the corporation or any of its
divisions, subsidiaries, and affiliates may be considered, if germane. See USSG § 8C2.5(c), cmt.
(n. 6).

6
9-28.700 The Value of Cooperation

A. General Principle: In determining whether to charge a corporation and how to resolve

corporate criminal cases, the corporation's timely and voluntary disclosure of wrongdoing and
its cooperation with the government's investigation may be relevant factors. In gauging the
extent of the corporation's cooperation, the prosecutor may consider, among other things,
whether the corporation made a voluntary and timely disclosure, and the corporation's
willingness to provide relevant information and evidence and identify relevant actors within and
outside the corporation, including senior executives.

Cooperation is a potential mitigating factor, by which a corporation—just like any other

subject of a criminal investigation—can gain credit in a case that otherwise is appropriate for
indictment and prosecution. Of course, the decision not to cooperate by a corporation (or
individual) is not itself evidence of misconduct, at least where the lack of cooperation does not
involve criminal misconduct or demonstrate consciousness of guilt (e.g., suborning perjury or
false statements, or refusing to comply with lawful discovery requests). Thus, failure to
cooperate, in and of itself, does not support or require the filing of charges with respect to a
corporation any more than with respect to an individual.

B. Comment: In investigating wrongdoing by or within a corporation, a prosecutor is

likely to encounter several obstacles resulting from the nature of the corporation itself. It will
often be difficult to determine which individual took which action on behalf of the corporation.
Lines of authority and responsibility may be shared among operating divisions or departments,
and records and personnel may be spread throughout the United States or even among several
countries. Where the criminal conduct continued over an extended period of time, the culpable
or knowledgeable personnel may have been promoted, transferred, or fired, or they may have
quit or retired. Accordingly, a corporation's cooperation may be critical in identifying
potentially relevant actors and locating relevant evidence, among other things, and in doing so
expeditiously.

This dynamic—i.e., the difficulty of determining what happened, where the evidence is,
and which individuals took or promoted putatively illegal corporate actions—can have negative
consequences for both the government and the corporation that is the subject or target of a
government investigation. More specifically, because of corporate attribution principles
concerning actions of corporate officers and employees (see, e.g., supra section II), uncertainty
about exactly who authorized or directed apparent corporate misconduct can inure to the
detriment of a corporation. For example, it may not matter under the law which of several
possible executives or leaders in a chain of command approved of or authorized criminal
conduct: however, that information if known might bear on the propriety of a particular
disposition short of indictment of the corporation. It may not be in the interest of a corporation
or the government for a charging decision to be made in the absence of such information, which
might occur if, for example, a statute of limitations were relevant and authorization by any one
of the officials were enough to justify a charge under the law. Moreover, and at a minimum, a

7
protracted government investigation of such an issue could, as a collateral consequence, disrupt
the corporation's business operations or even depress its stock price.

For these reasons and more, cooperation can be a favorable course for both the
government and the corporation. Cooperation benefits the government—and ultimately
shareholders, employees, and other often blameless victims—by allowing prosecutors and
federal agents, for example, to avoid protracted delays, which compromise their ability to
quickly uncover and address the full extent of widespread corporate crimes. With cooperation
by the corporation, the government may be able to reduce tangible losses, limit damage to
reputation, and preserve assets for restitution. At the same time, cooperation may benefit the
corporation by enabling the government to focus its investigative resources in a manner that will
not unduly disrupt the corporation's legitimate business operations. In addition, and critically,
cooperation may benefit the corporation by presenting it with the opportunity to earn credit for
its efforts.

9-28.710 Attorney-Client and Work Product Protections

The attorney-client privilege and the attorney work product protection serve an extremely
important function in the American legal system. The attorney-client privilege is one of the
oldest and most sacrosanct privileges under the law. See Upjohn v. United States, 449 U.S. 383,
389 (1981). As the Supreme Court has stated, "[i]ts purpose is to encourage full and frank
communication between attorneys and their clients and thereby promote broader public interests
in the observance of law and administration of justice." Id. The value of promoting a
corporation's ability to seek frank and comprehensive legal advice is particularly important in
the contemporary global business environment, where corporations often face complex and
dynamic legal and regulatory obligations imposed by the federal government and also by states
and foreign governments. The work product doctrine serves similarly important goals.

For these reasons, waiving the attorney-client and work product protections has never
been a prerequisite under the Department's prosecution guidelines for a corporation to be viewed
as cooperative. Nonetheless, a wide range of commentators and members of the American legal
community and criminal justice system have asserted that the Department's policies have been
used, either wittingly or unwittingly, to coerce business entities into waiving attorney-client
privilege and work-product protection. Everyone agrees that a corporation may freely waive its
own privileges if it chooses to do so; indeed, such waivers occur routinely when corporations are
victimized by their employees or others, conduct an internal investigation, and then disclose the
details of the investigation to law enforcement officials in an effort to seek prosecution of the
offenders. However, the contention, from a broad array of voices, is that the Department's
position on attorney-client privilege and work product protection waivers has promoted an
environment in which those protections are being unfairly eroded to the detriment of all.

The Department understands that the attorney-client privilege and attorney work product
protection are essential and long-recognized components of the American legal system. What
the government seeks and needs to advance its legitimate (indeed, essential) law enforcement

8
mission is not waiver of those protections, but rather the facts known to the corporation about the
putative criminal misconduct under review. In addition, while a corporation remains free to
convey non-factual or "core" attorney-client communications or work product—if and only if the
corporation voluntarily chooses to do so—prosecutors should not ask for such waivers and are
directed not to do so. The critical factor is whether the corporation has provided the facts about
the events, as explained further herein.

9-28.720 Cooperation: Disclosing the Relevant Facts

Eligibility for cooperation credit is not predicated upon the waiver of attorney-client
privilege or work product protection. Instead, the sort of cooperation that is most valuable to
resolving allegations of misconduct by a corporation and its officers, directors, employees, or
agents is disclosure of the relevant facts concerning such misconduct. In this regard, the analysis
parallels that for a non-corporate defendant, where cooperation typically requires disclosure of
relevant factual knowledge and not of discussions between an individual and his attorneys.

Thus, when the government investigates potential corporate wrongdoing, it seeks the
relevant facts. For example, how and when did the alleged misconduct occur? Who promoted
or approved it? Who was responsible for committing it? In this respect, the investigation of a
corporation differs tittle from the investigation of an individual. In both cases, the government
needs to know the facts to achieve a just and fair outcome. The parly under investigation may
choose to cooperate by disclosing the facts, and the government may give credit for the party's
disclosures. If a corporation wishes to receive credit for such cooperation, which then can be
considered with all other cooperative efforts and circumstances in evaluating how fairly to
proceed, then the corporation, like any person, must disclose the relevant facts of which it has
2
knowledge.

(a) Disclosing the Relevant Facts - Facts Gathered Through Internal Investigation

Individuals and corporations often obtain knowledge of facts in different ways. An

individual knows the facts of his or others' misconduct through his own experience and
perceptions. A corporation is an artificial construct that cannot, by definition, have personal
knowledge of the facts. Some of those facts may be reflected in documentary or electronic
media like emails, transaction or accounting documents, and other records. Often, the
corporation gathers facts through an internal investigation. Exactly how and by whom the facts

2
There are other dimensions of cooperation beyond the mere disclosure of facts, of
course. These can include, for example, providing non-privileged documents and other
evidence, making witnesses available for interviews, and assisting in the interpretation of
complex business records. This section of the Principles focuses solely on the disclosure of facts
and the privilege issues that may be implicated thereby.

9
are gathered is for the corporation to decide. Many corporations choose to collect information
about potential misconduct through lawyers, a process that may confer attorney-client privilege
or attorney work product protection on at least some of the information collected. Other
corporations may choose a method of fact-gathering that does not have that effect—for example,
having employee or other witness statements collected after interviews by non-attorney
personnel.

Whichever process the corporation selects, the government's key measure of cooperation
must remain the same as it does for an individual: has the party timely disclosed the relevant
facts about the putative misconduct? That is the operative question in assigning cooperation
credit for the disclosure of information—not whether the corporation discloses attorney-client or
work product materials. Accordingly, a corporation should receive the same credit for disclosing
facts contained in materials that are not protected by the attorney-client privilege or attorney
work product as it would for disclosing identical facts contained in materials that are so
3
protected. On this point the Report of the House Judiciary Committee, submitted in connection
with the attorney-client privilege bill passed by the House of Representatives (H.R. 3013).
comports with the approach required here:

[A]n . . . attorney of the United States may base cooperation credit on the facts
that are disclosed, but is prohibited from basing cooperation credit upon whether
or not the materials are protected by attorney-client privilege or attorney work
product. As a result, an entity that voluntarily discloses should receive the same
amount of cooperation credit for disclosing facts that happen to be contained in
materials not protected by attorney-client privilege or attorney work product as it
would receive for disclosing identical facts that arc contained in materials
protected by attorney-client privilege or attorney work product. There should be
no differentials in an assessment of cooperation (i.e.. neither a credit nor a
penalty) based upon whether or not the materials disclosed are protected by
attorney-client privilege or attorney work product.

H.R. Rep. No. 110-445 at 4 (2007).

3
By way of example, corporate personnel are typically interviewed during an internal
investigation. If the interviews are conducted by counsel for the corporation, certain notes and
memoranda generated from the interviews may be subject, at least in part, to the protections of
attorney-client privilege and/or attorney work product. To receive cooperation credit for
providing factual information, the corporation need not produce, and prosecutors may not
request, protected notes or memoranda generated by the lawyers' interviews. To earn such
credit, however, the corporation does need to produce, and prosecutors may request, relevant
factual information—including relevant factual information acquired through those interviews,
unless the identical information has otherwise been provided—as well as relevant non-privileged
evidence such as accounting and business records and emails between non-attorney employees
or agents.

10
 In short, so long as the corporation timely discloses relevant facts about the putative
misconduct, the corporation may receive due credit for such cooperation, regardless of whether it
4
chooses to waive privilege or work product protection in the process. Likewise, a corporation
that does not disclose the relevant facts about the alleged misconduct—for whatever
reason—typically should not be entitled to receive credit for cooperation.

Two final and related points bear noting about the disclosure of facts, although they
should be obvious. First, the government cannot compel, and the corporation has no obligation
to make, such disclosures (although the government can obviously compel the disclosure of
certain records and witness testimony through subpoenas). Second, a corporation's failure to
provide relevant information does not mean the corporation will be indicted. It simply means
that the corporation will not be entitled to mitigating credit for that cooperation. Whether the
corporation faces charges will turn, as it does in any case, on the sufficiency of the evidence, the
likelihood of success at trial, and all of the other factors identified in Section III above. If there
is insufficient evidence to warrant indictment, after appropriate investigation has been
completed, or if the other factors weigh against indictment, then the corporation should not be
indicted, irrespective of whether it has earned cooperation credit. The converse is also true: The
government may charge even the most cooperative corporation pursuant to these Principles if, in
weighing and balancing the factors described herein, the prosecutor determines that a charge is
required in the interests of justice. Put differently, even the most sincere and thorough effort to
cooperate cannot necessarily absolve a corporation that has, for example, engaged in an
egregious, orchestrated, and widespread fraud. Cooperation is a relevant potential mitigating
factor, but it alone is not dispositive.

(b) Legal Advice and Attorney Work Product

Separate from (and usually preceding) the fact-gathering process in an internal

investigation, a corporation, through its officers, employees, directors, or others, may have
consulted with corporate counsel regarding or in a manner that concerns the legal implications of
the putative misconduct at issue. Communications of this sort, which are both independent of
the fact-gathering component of an internal investigation and made for the purpose of seeking or
dispensing legal advice, lie at the core of the attorney-client privilege. Such communications can
naturally have a salutary effect on corporate behavior—facilitating, for example, a corporation's
5
effort to comply with complex and evolving legal and regulatory regimes. Except as noted in

4
In assessing the timeliness of a corporation's disclosures, prosecutors should apply a
standard of reasonableness in light of the totality of circumstances.
5
These privileged communications are not necessarily limited to those that occur
contemporaneously with the underlying misconduct. They would include, for instance, legal
advice provided by corporate counsel in an internal investigation report. Again, the key measure
of cooperation is the disclosure of factual information known to the corporation, not the

11
subparagraphs (b)(i) and (b)(ii) below, a corporation need not disclose and prosecutors may not
request the disclosure of such communications as a condition for the corporation's eligibility to
receive cooperation credit,
Likewise, non-factual or core attorney work product—for example, an attorney's mental
impressions or legal theories—lies at the core of the attorney work product doctrine. A
corporation need not disclose, and prosecutors may not request, the disclosure of such attorney
work product as a condition for the corporation's eligibility to receive cooperation credit.

(i) Advice of Counsel Defense in the Instant Context

Occasionally a corporation or one of its employees may assert an advice-of-counsel

defense, based upon communications with in-house or outside counsel that took place prior to or
contemporaneously with the underlying conduct at issue. In such situations, the defendant must
tender a legitimate factual basis to support the assertion of the advice-of-counsel defense. See.
e.g., Pitt v. Dist. of Columbia, 491 F.3d 494, 504-05 (D.C. Cir. 2007); United States v. Wenger.
427 F.3d 840, 853-54 (10th Cir. 2005); United States v. Cheek. 3 F.3d 1057, 1061-62 (7th Cir.
1993). The Department cannot fairly be asked to discharge its responsibility to the public to
investigate alleged corporate crime, or to temper what would otherwise be the appropriate course
of prosecutive action, by simply accepting on faith an otherwise unproven assertion that an
attorney—perhaps even an unnamed attorney—-approved potentially unlawful practices.
Accordingly, where an advice-of-counsel defense has been asserted, prosecutors may ask for the
disclosure of the communications allegedly supporting it.

(ii) Communications in Furtherance of a. Crime or Fraud

Communications between a corporation (through its officers, employees, directors, or

agents) and corporate counsel that are made in furtherance of a crime or fraud are, under settled
precedent, outside the scope and protection of the attorney-client privilege. See United States v.
Zolin, 491 U.S. 554, 563 (1989); United States v. BDO Seidman. LLP, 492 F.3d 806, 818 (7th
Cir. 2007). As a result, the Department may properly request such communications if they in
fact exist.

9-28.730 Obstructing the Investigation

Another factor to be weighed by the prosecutor is whether the corporation has engaged in
conduct intended to impede the investigation. Examples of such conduct could include:
inappropriate directions to employees or their counsel, such as directions not to be truthful or to
conceal relevant facts; making representations or submissions that contain misleading assertions
or materia! omissions; and incomplete or delayed production of records.

disclosure of legal advice or theories rendered in connection with the conduct at issue (subject to
the two exceptions noted in Section VII(2)(b)(i-ii)).

12
 In evaluating cooperation, however, prosecutors should not take into account whether a
corporation is advancing or reimbursing attorneys' fees or providing counsel to employees,
officers, or directors under investigation or indictment. Likewise, prosecutors may not request
that a corporation refrain from taking such action. This prohibition is not meant to prevent a
prosecutor from asking questions about an attorney's representation of a corporation or its
6
employees, officers, or directors, where otherwise appropriate under the law. Neither is it
intended to limit the otherwise applicable reach of criminal obstruction of justice statutes such as
18 U.S.C. § 1503. If the payment of attorney fees were used in a manner that would otherwise
constitute criminal obstruction of justice—for example, if fees were advanced on the condition
that an employee adhere to a version of the facts that the corporation and the employee knew to
be false—these Principles would not (and could not) render inapplicable such criminal
prohibitions.

Similarly, the mere participation by a corporation in a joint defense agreement does not
render the corporation ineligible to receive cooperation credit, and prosecutors may not request
that a corporation refrain from entering into such agreements. Of course, the corporation may
wish to avoid putting itself in the position of being disabled, by virtue of a particular joint
defense or similar agreement, from providing some relevant facts to the government and thereby
limiting its ability to seek such cooperation credit. Such might be the case if the corporation
gathers facts from employees who have entered into a joint defense agreement with the
corporation, and who may later seek to prevent the corporation from disclosing the facts it has
acquired. Corporations may wish to address this situation by crafting or participating in joint
defense agreements, to the extent they choose to enter them, that provide such flexibility as they
deem appropriate.

Finally, it may on occasion be appropriate for the government to consider whether the
corporation has shared with others sensitive information about the investigation that the
government provided to the corporation. In appropriate situations, as it does with individuals,
the government may properly request that, if a corporation wishes to receive credit for
cooperation, the information provided by the government to the corporation not be transmitted to
others—for example, where the disclosure of such information could lead to flight by individual
subjects, destruction of evidence, or dissipation or concealment of assets.

9-28.740 Offering Cooperation: No Entitlement to Immunity

A corporation's offer of cooperation or cooperation itself does not automatically entitle it

to immunity from prosecution or a favorable resolution of its case, A corporation should not be
able to escape liability merely by offering up its directors, officers, employees, or agents. Thus,

6
Routine questions regarding the representation status of a corporation and its
employees, including how and by whom attorneys' fees are paid, sometimes arise in the course
of an investigation under certain circumstances—to take one example, to assess conflict-of-
interest issues. Such questions can be appropriate and this guidance is not intended to prohibit
such limited inquiries.

13
a corporation's willingness to cooperate is not determinative; that factor, while relevant, needs to
be considered in conjunction with all other factors.

9-28.750 Qualifying for Immunity, Amnesty, or Reduced Sanctions Through Voluntary

Disclosures

In conjunction with regulatory agencies and other executive branch departments, the
Department encourages corporations, as part of their compliance programs, to conduct internal
investigations and to disclose the relevant facts to the appropriate authorities. Some agencies,
such as the Securities and Exchange Commission and the Environmental Protection Agency, as
well as the Department's Environmental and Natural Resources Division, have formal voluntary
disclosure programs in which self-reporting, coupled with remediation and additional criteria,
may qualify the corporation for amnesty or reduced sanctions. Even in the absence of a formal
program, prosecutors may consider a corporation's timely and voluntary disclosure in evaluating
the adequacy of the corporation's compliance program and its management's commitment to the
compliance program. However, prosecution and economic policies specific to the industry or
statute may require prosecution notwithstanding a corporation's willingness to cooperate. For
example, the Antitrust Division has a policy of offering amnesty only to the first corporation to
agree to cooperate. Moreover, amnesty, immunity, or reduced sanctions may not be appropriate
where the corporation's business is permeated with fraud or other crimes.

9-28.760 Oversight Concerning Demands for Waivers of Attorney-Client Privilege or

Work Product Protection By Corporations Contrary to This Policy

The Department underscores its commitment to attorney practices that are consistent with
Department policies like those set forth herein concerning cooperation credit and due respect for
the attorney-client privilege and work product protection. Counsel for corporations who believe
that prosecutors are violating such guidance are encouraged to raise their concerns with
supervisors, including the appropriate United States Attorney or Assistant Attorney General.
Like any other allegation of attorney misconduct, such allegations are subject to potential
investigation through established mechanisms.

9-28.800 Corporate Compliance Programs

A. General Principle: Compliance programs are established by corporate management to

prevent and detect misconduct and to ensure that corporate activities are conducted in
accordance with applicable criminal and civil laws, regulations, and rules. The Department
encourages such corporate self-policing, including voluntary disclosures to the government of
any problems that a corporation discovers on its own. However, the existence of a compliance
program is not sufficient, in and of itself, to justify not charging a corporation for criminal
misconduct undertaken by its officers, directors, employees, or agents. In addition, the nature of
some crimes, e.g., antitrust violations, may be such that national law enforcement policies
mandate prosecutions of corporations notwithstanding the existence of a compliance program.

14
 B. Comment: The existence of a corporate compliance program, even one that
specifically prohibited the very conduct in question, does not absolve the corporation from
criminal liability under the doctrine of respondeat superior. See United States v. Basic Constr.
Co., 711 F.2d 570, 573 (4th Cir. 1983) ("[A] corporation may be held criminally responsible for
antitrust violations committed by its employees if they were acting within the scope of their
authority, or apparent authority, and for the benefit of the corporation, even if... such acts were
against corporate policy or express instructions."). As explained in United States v. Potter, 463
F.3d 9 (1st Cir. 2006), a corporation cannot "avoid liability by adopting abstract rules" that
forbid its agents from engaging in illegal acts, because "[e]ven a specific directive to an agent or
employee or honest efforts to police such rules do not automatically free the company for the
wrongful acts of agents." Id. at 25-26. See also United States v. Hilton Hotels Corp.. 467 F.2d
1000. 1007 (9th Cir. 1972) (noting that a corporation "could not gain exculpation by issuing
general instructions without undertaking to enforce those instructions by means commensurate
with the obvious risks"); United States v. Beusch, 596 F.2d 871, 878 (9th Cir. 1979) ("[A]
corporation may be liable for acts of its employees done contrary to express instructions and
policies, b u t . . . the existence of such instructions and policies may be considered in determining
whether the employee in fact acted to benefit the corporation.").

While the Department recognizes that no compliance program can ever prevent all
criminal activity by a corporation's employees, the critical factors in evaluating any program are
whether the program is adequately designed for maximum effectiveness in preventing and
detecting wrongdoing by employees and whether corporate management is enforcing the
program or is tacitly encouraging or pressuring employees to engage in misconduct to achieve
business objectives. The Department has no formulaic requirements regarding corporate
compliance programs. The fundamental questions any prosecutor should ask are: is the
corporation's compliance program well designed? Is the program being applied earnestly and in
good faith? Does the corporation's compliance program work? In answering these questions, the
prosecutor should consider the comprehensiveness of the compliance program; the extent and
pervasiveness of the criminal misconduct; the number and level of the corporate employees
involved; the seriousness, duration, and frequency of the misconduct: and any remedial actions
taken by the corporation, including, for example, disciplinary action against past violators
uncovered by the prior compliance program, and revisions to corporate compliance programs in
7
light of lessons learned. Prosecutors should also consider the promptness of any disclosure of
wrongdoing to the government. In evaluating compliance programs, prosecutors may consider
whether the corporation has established corporate governance mechanisms that can effectively
detect and prevent misconduct. For example, do the corporation's directors exercise independent
review over proposed corporate actions rather than unquestioningly ratifying officers'
recommendations; are internal audit functions conducted at a level sufficient to ensure their
independence and accuracy; and have the directors established an information and reporting
system in the organization reasonably designed to provide management and directors with timely
and accurate information sufficient to allow them to reach an informed decision regarding the

7
For a detailed review of these and other factors concerning corporate compliance
programs, see USSG § 8B2.1.

15
organization's compliance with the law. See, e.g., In re Caremark Int'l Inc. Derivative Litig,
698 A.2d 959, 968-70 (Del. Ch. 1996).

Prosecutors should therefore attempt to determine whether a corporation's compliance

program is merely a "paper program" or whether it was designed, implemented, reviewed, and
revised, as appropriate, in an effective manner. In addition, prosecutors should determine
whether the corporation has provided for a staff sufficient to audit, document, analyze, and
utilize the results of the corporation's compliance efforts. Prosecutors also should determine
whether the corporation's employees are adequately informed about the compliance program and
are convinced of the corporation's commitment to it. This will enable the prosecutor to make an
informed decision as to whether the corporation has adopted and implemented a truly effective
compliance program that, when consistent with other federal law enforcement policies, may
result in a decision to charge only the corporation's employees and agents or to mitigate charges
or sanctions against the corporation.

Compliance programs should be designed to detect the particular types of misconduct

most likely to occur in a particular corporation's line of business. Many corporations operate in
complex regulatory environments outside the normal experience of criminal prosecutors.
Accordingly, prosecutors should consult with relevant federal and state agencies with the
expertise to evaluate the adequacy of a program's design and implementation. For instance, state
and federal banking, insurance, and medical boards, the Department of Defense, the Department
of Health and Human Services, the Environmental Protection Agency, and the Securities and
Exchange Commission have considerable experience with compliance programs and can be
helpful to a prosecutor in evaluating such programs. In addition, the Fraud Section of the
Criminal Division, the Commercial Litigation Branch of the Civil Division, and the
Environmental Crimes Section of the Environment and Natural Resources Division can assist
United States Attorneys' Offices in finding the appropriate agency office(s) for such
consultation.

9-28.900 Restitution and Remediation

A. General Principle: Although neither a corporation nor an individual target may avoid
prosecution merely by paying a sum of money, a prosecutor may consider the corporation's
willingness to make restitution and steps already taken to do so. A prosecutor may also consider
other remedial actions, such as improving an existing compliance program or disciplining
wrongdoers, in determining whether to charge the corporation and how to resolve corporate
criminal cases.

B. Comment: In determining whether or not to prosecute a corporation, the government

may consider whether the corporation has taken meaningful remedial measures. A corporation's
response to misconduct says much about its willingness to ensure that such misconduct does not
recur. Thus, corporations that fully recognize the seriousness of their misconduct and accept
responsibility for it should be taking steps to implement the personnel, operational, and

16
organizational changes necessary to establish an awareness among employees that criminal
conduct will not be tolerated.

Among the factors prosecutors should consider and weigh are whether the corporation
appropriately disciplined wrongdoers, once those employees are identified by the corporation as
culpable for the misconduct. Employee discipline is a difficult task for many corporations
because of the human element involved and sometimes because of the seniority of the employees
concerned. Although corporations need to be fair to their employees, they must also be
committed, at all levels of the corporation, to the highest standards of legal and ethical behavior.
Effective internal discipline can be a powerful deterrent against improper behavior by a
corporation's employees. Prosecutors should be satisfied that the corporation's focus is on the
integrity and credibility of its remedial and disciplinary measures rather than on the protection of
the wrongdoers.

In addition to employee discipline, two other factors used in evaluating a corporation's

remedial efforts are restitution and reform. As with natural persons, the decision whether or not
to prosecute should not depend upon the target's ability to pay restitution. A corporation's
efforts to pay restitution even in advance of any court order is, however, evidence of its
acceptance of responsibility and, consistent with the practices and policies of the appropriate
Division of the Department entrusted with enforcing specific criminal laws, may be considered
in determining whether to bring criminal charges. Similarly, although the inadequacy of a
corporate compliance program is a factor to consider when deciding whether to charge a
corporation, that corporation's quick recognition of the flaws in the program and its efforts to
improve the program are also factors to consider as to appropriate disposition of a case.

9-28.1000 Collateral Consequences

A. General Principle: Prosecutors may consider the collateral consequences of a

corporate criminal conviction or indictment in determining whether to charge the corporation
with a criminal offense and how to resolve corporate criminal cases.

B. Comment: One of the factors in determining whether to charge a natural person or a

corporation is whether the likely punishment is appropriate given the nature and seriousness of
the crime. In the corporate context, prosecutors may take into account the possibly substantial
consequences to a corporation's employees, investors, pensioners, and customers, many of
whom may, depending on the size and nature of the corporation and their role in its operations,
have played no role in the criminal conduct, have been unaware of it, or have been unable to
prevent it. Prosecutors should also be aware of non-penal sanctions that may accompany a
criminal charge, such as potential suspension or debarment from eligibility for government
contracts or federally funded programs such as health care programs. Determining whether or
not such non-penal sanctions are appropriate or required in a particular case is the responsibility
of the relevant agency, and is a decision that will be made based on the applicable statutes,
regulations, and policies.

17
 Virtually every conviction of a corporation, like virtually every conviction of an
individual, will have an impact on innocent third parties, and the mere existence of such an effect
is not sufficient to preclude prosecution of the corporation. Therefore, in evaluating the
relevance of collateral consequences, various factors already discussed, such as the
pervasiveness of the criminal conduct and the adequacy of the corporation's compliance
programs, should be considered in determining the weight to be given to this factor. For
instance, the balance may tip in favor of prosecuting corporations in situations where the scope
of the misconduct in a case is widespread and sustained within a corporate division (or spread
throughout pockets of the corporate organization). In such cases, the possible unfairness of
visiting punishment for the corporation's crimes upon shareholders may be of much less concern
where those shareholders have substantially profited, even unknowingly, from widespread or
pervasive criminal activity. Similarly, where the top layers of the corporation's management or
the shareholders of a closely-held corporation were engaged in or aware of the wrongdoing, and
the conduct at issue was accepted as a way of doing business for an extended period, debarment
may be deemed not collateral, but a direct and entirely appropriate consequence of the
corporation's wrongdoing.

On the other hand, where the collateral consequences of a corporate conviction for
innocent third parties would be significant, it may be appropriate to consider a non-prosecution
or deferred prosecution agreement with conditions designed, among other things, to promote
compliance with applicable law and to prevent recidivism. Such agreements are a third option,
besides a criminal indictment, on the one hand, and a declination, on the other. Declining
prosecution may allow a corporate criminal to escape without consequences. Obtaining a
conviction may produce a result that seriously harms innocent third parties who played no role in
the criminal conduct. Under appropriate circumstances, a deferred prosecution or non-
prosecution agreement can help restore the integrity of a company's operations and preserve the
financial viability of a corporation that has engaged in criminal conduct, while preserving the
government's ability to prosecute a recalcitrant corporation that materially breaches the
agreement. Such agreements achieve other important objectives as well, like prompt restitution
8
for victims. Ultimately, the appropriateness of a criminal charge against a corporation, or some
lesser alternative, must be evaluated in a pragmatic and reasoned way that produces a fair
outcome, taking into consideration, among other things, the Department's need to promote and
ensure respect for the law.

9-28.1100 Other Civil or Regulatory Alternatives

A. General Principle: Non-criminal alternatives to prosecution often exist and

prosecutors may consider whether such sanctions would adequately deter, punish, and
rehabilitate a corporation that has engaged in wrongful conduct. In evaluating the adequacy of

8
Prosecutors should note that in the case of national or multi-national corporations,
multi-district or global agreements may be necessary. Such agreements may only be entered into
with the approval of each affected district or the appropriate Department official. See id. § 9-
27.641.

18
non-criminal alternatives to prosecution—e.g., civil or regulatory enforcement actions—the
prosecutor may consider all relevant factors, including:

1. the sanctions available under the alternative means of disposition;

2. the likelihood that an effective sanction will be imposed; and

3. the effect of non-criminal disposition on federal law enforcement interests.

B. Comment: The primary goals of criminal law are deterrence, punishment, and
rehabilitation. Non-criminal sanctions may not be an appropriate response to a serious violation,
a pattern of wrongdoing, or prior non-criminal sanctions without proper remediation. In other
cases, however, these goals may be satisfied through civil or regulatory actions. In determining
whether a federal criminal resolution is appropriate, the prosecutor should consider the same
factors (modified appropriately for the regulatory context) considered when determining whether
to leave prosecution of a natural person to another jurisdiction or to seek non-criminal
alternatives to prosecution. These factors include: the strength of the regulatory authority's
interest; the regulatory authority's ability and willingness to take effective enforcement action;
the probable sanction if the regulatory authority's enforcement action is upheld; and the effect of
a non-criminal disposition on federal law enforcement interests. See USAM §§ 9-27.240,
9-27.250.

9-2S.1200 Selecting Charges

A. General Principle: Once a prosecutor has decided to charge a corporation, the

prosecutor at least presumptively should charge, or should recommend that the grand jury
charge, the most serious offense that is consistent with the nature of the defendant's misconduct
and that is likely to result in a sustainable conviction.

B. Comment: Once the decision to charge is made, the same rules as govern charging
natural persons apply. These rules require "a faithful and honest application of the Sentencing
Guidelines" and an "individualized assessment of the extent to which particular charges fit the
specific circumstances of the case, are consistent with the purposes of the Federal criminal code,
and maximize the impact of Federal resources on crime." See USAM § 9-27.300. In making
this determination, "it is appropriate that the attorney for the government consider, inter alia.
such factors as the [advisory] sentencing guideline range yielded by the charge, whether the
penalty yielded by such sentencing range . . . is proportional to the seriousness of the defendant's
conduct, and whether the charge achieves such purposes of the criminal law as punishment,
protection of the public, specific and general deterrence, and rehabilitation." Id.

9-28.1300 Plea Agreements with Corporations

A. General Principle: In negotiating plea agreements with corporations, as with

individuals, prosecutors should generally seek a plea to the most serious, readily provable

19
offense charged. In addition, the terms of the plea agreement should contain appropriate
provisions to ensure punishment, deterrence, rehabilitation, and compliance with the plea
agreement in the corporate context. Although special circumstances may mandate a different
conclusion, prosecutors generally should not agree to accept a corporate guilty plea in exchange
for non-prosecution or dismissal of charges against individual officers and employees.

B. Comment: Prosecutors may enter into plea agreements with corporations for the
same reasons and under the same constraints as apply to plea agreements with natural persons.
See USAM §§ 9-27.400-530. This means, inter alia, that the corporation should generally he
required to plead guilty to the most serious, readily provable offense charged. In addition, any
negotiated departures or recommended variances from the advisory Sentencing Guidelines must
be justifiable under the Guidelines or 18 U.S.C. § 3553 and must be disclosed to the sentencing
court. A corporation should be made to realize that pleading guilty to criminal charges
constitutes an admission of guilt and not merely a resolution of an inconvenient distraction from
its business. As with natural persons, pleas should be structured so that the corporation may not
later "proclaim lack of culpability or even complete innocence." See USAM §§ 9-27.420(b)(4).
9-27.440, 9-27.500. Thus, for instance, there should be placed upon the record a sufficient
factual basis for the plea to prevent later corporate assertions of innocence.

A corporate plea agreement should also contain provisions that recognize the nature of
the corporate "person" and that ensure that the principles of punishment, deterrence, and
rehabilitation arc met. In the corporate context, punishment and deterrence are generally
accomplished by substantial fines, mandatory restitution, and institution of appropriate
compliance measures, including, if necessary, continued judicial oversight or the use of special
masters or corporate monitors. See USSG §§ 8B1.1. 8C2.1, et seq. In addition, where the
corporation is a government contractor, permanent or temporary debarment may be appropriate.
Where the corporation was engaged in fraud against the government (e.g., contracting fraud), a
prosecutor may not negotiate away an agency's right to debar or delist the corporate defendant.

In negotiating a plea agreement, prosecutors should also consider the deterrent value of
prosecutions of individuals within the corporation. Therefore, one factor that a prosecutor may
consider in determining whether to enter into a plea agreement is whether the corporation is
seeking immunity for its employees and officers or whether the corporation is willing to
cooperate in the investigation of culpable individuals as outlined herein. Prosecutors should
rarely negotiate away individual criminal liability in a corporate plea.

Rehabilitation, of course, requires that the corporation undertake to be law-abiding in the

future. It is, therefore, appropriate to require the corporation, as a condition of probation, to
implement a compliance program or to reform an existing one. As discussed above, prosecutors
may consult with the appropriate state and federal agencies and components of the Justice
Department to ensure that a proposed compliance program is adequate and meets industry
standards and best practices. See supra section VIII.

20
 In plea agreements in which the corporation agrees to cooperate, the prosecutor should
ensure that the cooperation is entirely truthful. To do so, the prosecutor may request that the
corporation make appropriate disclosures of relevant factual information and documents, make
employees and agents available for debriefing, file appropriate certified financial statements,
agree to governmental or third-party audits, and take whatever other steps arc necessary to
ensure that the full scope of the corporate wrongdoing is disclosed and that the responsible
personnel are identified and, if appropriate, prosecuted. See generally supra section VII. In
taking such steps. Department prosecutors should recognize that attorney-client communications
arc often essential to a corporation's efforts to comply with complex regulatory and legal
regimes, and that, as discussed at length above, cooperation is not measured by the waiver of
attorney-client privilege and work product protection, but rather is measured by the disclosure of
facts and other considerations identified herein such as making witnesses available for interviews
and assisting in the interpretation of complex documents or business records.

These Principles provide only internal Department of Justice guidance. They are not
intended to, do not, and may not be relied upon to create any rights, substantive or procedural,
enforceable at law by any party in any matter civil or criminal. Nor are any limitations hereby
placed on otherwise lawful litigative prerogatives of the Department of Justice.

21
 Appendix G

Social Security Number Updates

 Employment Verification Resources, Inc.
1575 DeLucchi Lane, Suite 207B
Reno, NV 89502
Phone: 775-322-3558
Fax : 775-322-8814
www.evrinc.com

Social Security Number updates

Number explanation: XXX - XX - XXXX

area group serial

Issued in the following sequence:

Odd only - 01 to 09, then Even only - 10 to 98, then Even only - 02 to 08, and lastly Odd only - 11 to
99.

The full sequence is:

01, 03, 05, 07, 09, 10, 12, 14, 16, 18, 20, 22, 24, 26, 28, 30, 32, 34, 36, 38, 40, 42, 44, 46, 48, 50, 52,
54, 56, 58, 60, 62, 64, 66, 68, 70, 72, 74, 76, 78, 80, 82, 84, 86, 88, 90, 92, 94, 96, 98, 02, 04, 06, 08,
11,13,15, 17, 19, 21, 23, 25, 27, 29, 31, 33, 35, 37, 39, 41, 43, 45, 47, 49, 51, 53, 55, 57, 59, 61, 63, 65,
67, 69, 71, 73, 75, 77, 79, 81, 83, 85, 87, 89, 91, 93, 95, 97, and 99.

Area Numbers not yet issued:

734 to 749 AND 773 to 999
Please check http://www.ssa.gov/emplover/ssnvs/highgroup.txt for the latest issued Area and Group
Numbers. The current set of lists are by month; from November, 2003 to October, 2008.
* Note: the gov't has posted a notice to all users that they should see the revised lists for August and
September, 2008. Several area/group numbers were not updated but the problem has been corrected.

Numbers that will never be issued:

1) Any number with a set of zeros; 000-XX-XXXX, XXX-00-XXXX, or XXX-XX-0000.
2) 987-65-4320 to 987-65-4329; these numbers are set aside for 'advertising'.
3) Any number that begins with 666.

One more site of interest:

http://ssdi.rootsweb.ancestry.com - does the number belong to a dead person?

Copyright 2008 EVRI®

 Appendix H

ICE Worksite Enforcement Advisory

Know Your Workforce: February 2008

The Key to Immigration Compliance Contact IMAGE at

image@dhs.gov
A recurrent issue encountered in ICE worksite enforcement investigations today
is the abuse of the Social Security card by individuals seeking to satisfy the work or
authorization requirements mandated by federal law. The Social Security card has I M A G E Coodinator
long been a favorite of fraudulent document vendors. In fact, immigration fraud 425 I S t r e e t NW
investigators have coined the term "three pack" to refer to the frequently
W a s h i n g t o n , D C 20536
encountered fraudulent document combination of the Social Security card, the
state driver's license or identity card, and a work authorization document.

A common Social Security card fraud theme is for individuals without work
authorization to assume the identity of persons with valid identity and
work authorization documents to establish employment eligibility during
the I-9 process.

ICE is issuing this worksite enforcement advisory to make employers aware of

significant fraud trends encountered by the law enforcement community so that
employers do not inadvertently facilitate acts of identity theft within their own
workforce. ICE, in cooperation with other federal agency partners, such as the
Social Security Administration, USCIS and the Federal Trade Commission are
working together to enhance efforts to protect and promote the integrity of the
Social Security number.

Case Study:
Know Your Work Force

ICE investigators have found that many aliens who are not authorized to work in
U.S. Immigration and
the United States claim to be U.S. citizens when completing the Form I-9 and
use authentic Social Security numbers that belong to U.S. citizens. In one investi- Customs Enforcement
gation, ICE conducted an I-9 audit of an employer and discovered that most of
the workforce claimed U.S. citizenship even though the industry historically
employs a large percentage of non-US. citizens.

Keying in on this anomaly, ICE determined that many of the workers had sup-
plied the employer with Social Security numbers issued from one particular Report Suspicious Activity
non-local jurisdiction—in this particular case, Puerto Rico. This fact is to the ICE toll-tree tip line:
1-866-DHS-2-ICE
1-866-347-2423
Continued on next page
 Worksite Enforcement Advisory • February 2 0 0 8 • Page 2
significant because prior immigration investigations
have determined that "document mills" frequently use
Social Security numbers that seemingly originate in
one jurisdiction and that unauthorized aliens fre-
quently use "breeder documents" such as the Social
Security card and birth certificate as a stepping stone
to obtain valid state identity documents as a means to
escape detection by law enforcement and employers.
Things to Look for
Notable changes In the claimed citizenship or immi-
gration status of your workforce
No one knows your work force better than you. When
you customarily hire aliens with authorization to
work in the U.S. and you notice your employees
claiming to be U.S. citizens in numbers that strike you
as abnormally high or atypical for your region and/or
industry, you should consider contacting your local
ICE office.
As noted above, investigations by ICE have uncovered
schemes by local document vendors who traffic in
legitimate identification documents belonging to U.S.
citizens, typically from one particular state, possession
or territory. If you notice that your new hires are sud-
denly presenting identical documentation (birth cer-
tificates, or driver's licenses, for example), from one
particular state, possession or territory (or locality),
this may warrant further inquiry by discussing with
the employee his or her connection with the particu-
lar issuing entity, or by contacting ICE for further
information.
Employers are reminded that it is unlawful to discrim-
inate against employees based upon their national ori-
gin, including "foreign" appearance or accent, with
respect to hiring, firing, and the terms and conditions
of employment. See Title VII of the Civil Rights Act of
1964. In addition, it is unlawful to discriminate based
upon citizenship or immigration status against U.S.
citizens or nationals, refugees, asylees, or lawful per-
manent residents, with respect to hiring, firing, or
employment verification. See the Immigration and
Nationality Act's anti-discrimination provision, 8
U.S.C.§ 1324b. Additionally, the employer should not
request more or different documents or refuse to
honor documents that appear genuine and relate to
the individual.
Case Study:
Middle management isn't immune from prosecution
During another ICE investigation, an employee of a
company noticed co-workers tearing up IRS W-2
records. When the employee approached a supervisor
about what he saw, the supervisor stated that it did "not
matter since those employees were illegal anyway."
The employee informed ICE investigators of what he
had seen and heard. The investigation ultimately led to
the arrest of several managers as well as a large por-
tion of the work force.
Don't ignore relevant information.
Indifference to the law by supervisors and employees
is never a good business practice and may result in
criminal charges against you, your company and your
employees. 8 CFR, Part 274a.1 codifies the concept of
"constructive knowledge" for employers to include
instances that the employer "...has information avail-
able to it that would indicate that the alien is not
authorized to work..."
Things to Look for
Social Security "Employer Correction Requests" or
no-match letters
Respond to Social Security "Employer Correction
Requests" or no-match letters. Check your records to
ensure you have recorded the information correctly.
Check with your employee to verify the information
given to you is correct. Verify any corrections with
SSA. Encourage the employee to resolve the issue with
SSA and ensure any corrections are valid by checking
again with SSA.
Any other discrepancies identified by SSNVS
(Social Security Number Verification System)
If a company finds inconsistencies after submitting a
Social Security number to the Social Security
Administration (SSA), employers should immediately
check their records for errors and discuss/address the
issue with the employee and the SSA if the error can-
not be identified. See www.socialsecurity.gov for instruc-
tions on proper use of the SSNVS system.
 Worksite Enforcement Advisory • February 2 0 0 8 • Page 3
Depiction of the SSA 1995 revision.
Social Security cards
Although this advisory deals primarily with the fraud-
ulent use of valid SSN cards, the Social Security card
remains susceptible to fraudulent reproduction,
Social Security cards are not immigration documents
but are used to establish employment authorization.
Social Security cards have been issued since 1936 and.
have been revised more than 20 times. Originally,
the seal on the Social Security card read. Social Security
Board. In May of 1980, it was changed to the
Department of Health and. Human Services.
In April 1995 it was changed to read Social Security
Administration. Some counterfeiters have failed to
notice these changes.
Additionally, there are Social Security cards that have
been issued since 1982 with the annotation "NOT
VALID FOR EMPLOYMENT," and beginning in 1992
with the annotation "VALID FOR WORK WITH INS
AUTHORIZATION" which has now changed to DHS.
In October 1983, security features were added to the
card. All Social Security cards issued since October
1983 have been printed with raised (intaglio) print-
ing and the signature line consists of microline print-
ing of the words "SOCIAL SECURITY ADMINISTRA-
TION" in a repeating pattern.
Additional Resources and Issues
• Enroll in the online E-Verify program sponsored by
USCIS and supported by the Social Security
Administration to verify employment eligibility for
all of your new employees. Updates to this system
such as the use of a "photo tool" and the implemen-
tation of fraud detection procedures will help to
reduce instances of impostor related fraud.
• Be vigilant to abnormal trends such as an unex-
plained surge in identity documents issued from a
particular state, locality, etc., particularly if the surge
does not correspond to information on record
regarding your employee's prior employment or
prior residences.
• Employers may utilize commercially available data-
base software or credit checks to compare the
reported use of the Social Security card number with
the reported work history and residences of the
employee. This information may indicate either that
your employee is the victim of identity or other
fraud, or it may indicate that your employee is using
a stolen number. You should contact ICE for further
information.
• Do not ignore information that you learn as an
employer that indicates an employee is not author-
ized to work.
• A listing of local ICE offices is available at
www.ice.gov.
ICE recommends that employers not take any adverse
action against an employee based solely on what is
contained in this advisory. ICE merely reminds
employers to use diligence in the recruitment and hir-
ing of employees and emphasizes that employers
should not ignore relevant information.
 Worksite Enforcement Advisory • February 2 0 0 8 • Page 4

IMAGE Employer Certification Requirements: To combat unlawful employment

Best Employment Practices ICE has introduced the ICE Mutual

Agreement between Government
To become an IMAGE participant, your company must adhere to the
and Employers (IMAGE). IMAGE is
following Best Employment Practices, required for certification.
a voluntary partnership initiative to
1. Use the DHS employment eligibility verification program E-Verify to verify
assist employers in building legal
the employment eligibility of all new hires.
workforces. IMAGE is designed to
2. Establish an internal training program on the hiring process, with annual
updates (i.e., on how to manage completion of Form i-9 [Employment build cooperative relationships
Eligibility Verification Form]), and on how to detect the fraudulent use of between government and industry
documents in the I-9 process, and cooperate with ICE to make employees to reduce the unlawful employment
available for ICE training sessions as deemed appropriate.
of illegal aliens through
3. Permit the I-9 and E-Verify process to be conducted only by individuals who
strengthened employment
have received this training, and include a secondary review as part of each
employee's verification, to minimize the potential for a single individual to practices and enhanced training of
subvert the process. employers. By voluntarily
4. Arrange for annual I-9 audits by an external auditing firm or a trained participating in IMAGE, companies
employee not otherwise involved in the I-9 process,
reduce unauthorized employment
5. Establish a self-reporting procedure for the reporting to ICE of any
and the use of fraudulent identity
violations or discovered deficiencies.
documents. As part of IMAGE, ICE
6. Ensure and document the definitive resolution of no-match letters received
from the Social Security Administration (SSA), per SSA and Department of and U.S. Citizen and Immigration
Homeland Security guidance.* Services (USC1S) will provide
7. Establish a tip line mechanism (inbox, e-mail, etc.) for employees to report education and training on proper
activity relating to the employment of unauthorized aliens, and a protocol
hiring procedures, fraudulent
for responding to employee tips.
document detection, use of the
8. Establish and maintain appropriate policies, practices and safeguards
against use of the verification process for unlawful discrimination, and to E-Verify employment eligibility
ensure that U.S. citizens and authorized workers do not face discrimination verification program and anti-
with respect to hiring, firing or recruitment or referral for a fee because of discrimination safe-guards. For
citizenship status or national origin.
more information, please visit
9. Communicate IMAGE guidelines to other companies in the hiring network
IMAGE online at
(such as employment services and agencies) and contractors and
subcontractors. Work toward incorporating IMAGE guidelines into relation- www.ice.gov/image. To obtain
ships and agreements with these companies and establish a protocol for additional information regarding
assessing the adherence to the Best Employment Practices guidelines by IMAGE, click on IMAGE information
the company's contractors and subcontractors.
Packet Request.
10. Submit an annual report to ICE to track results and assess the effect of
participation in the IMAGE program. The report should include (a) identifi- To provide feedback regarding this
cation of individuals removed from employment in accordance with
ALERT, send an e-mail to
participation in the IMAGE program; (b) instances and resolution of SSA
no-match letters; (c) major organizational changes; and (d) identification IMAGE@dhs.gov.
of any vulnerabilities that are found to be exploited by unscrupulous
employees and unauthorized aliens. When appropriate, ICE encourages On October 10, 2007 the U.S. District Court for
timely disclosure in advance of the annual report. Discovery or allegations the Northern District of California issued a pre-
of substantive criminal violations must be immediately reported to ICE (in liminary injunction in AFL-CI0, et al. v. Chertoff.
et al. (N.D. Cal. Case No. 07-CV-4472 CRB).
accordance with Best Employment Practice 5, above), whereas technical
The preliminary injunction enjoins and restrains
violations may be documented in the annual report. For more information DHS and the Social Security Administration
on the IMAGE Program or to request an information packet, please visit from implementing the Final Rule entitled
www.ice.gov/image. "Safe-Harbor Procedures for Employers Who
Receive a No-Match Letter."
 The University of Texas School of Law

Presented:
32nd Conference on Immigration and Nationality Law

October 22, 23-24, 2008

San Antonio, Texas

Worksite Enforcement - Employee’s Perspective

Jacqueline L. Watson

Author contact information:

Jacqueline L. Watson
Hines & Leigh, P.C.
1005 E. 40th St.
Austin, TX 78751
Jacqueline@hines-leigh.com
(512) 452-0201

Continuing Legal Education • 512-475-6700 • www.utcle.org

 I. Safe Harbors from the Employee Perspective

The no-match regulations being pushed by DHS in an effort to link SSA no match letters
and I-9 compliance in many ways goes against years of caution against the use of no-
match letters as the sole basis for termination of an employee. The no-match regulations
are currently on hold as a result of an injunction, and one of the issues examined by the
court in granting the injunction was the impact of the no-match regulations on the
individual employee. What DHS has in store should the regulations go into effect goes
beyond the issues examined by the court, and has the potential to impose serious
hardships on all employees, regardless of immigration status. Nonetheless, DHS shows
no sign of reexamining its proposed no-match regulations in a light more favorable to the
rights of employees.

At the heart of the preliminary injunction lies the recognition that mistakes in the SSA
database pertain to U.S. citizen and authorized U.S. workers as well as unauthorized
workers. In particular, the imposition of DHS of a 90-day timeframe in which to
absolutely resolve a Social Security number discrepancy has been commonly denounced
as an unrealistic burden for the employee to bear. The requirement that the employer
terminates an employee unable to resolve a discrepancy in the social security records is a
draconian result.

When the U.S. District Court for the Northern District of California enjoined DHS from
issuing the no-match regulations, one of the issues it examined was the “balance of
hardships,” with employers and employees on the one hand and the federal government
on the other.1 In its examination of the burdens on employees, the court pointed to
testimony of former SSA Commissioner Kenneth Apfel, who stated that “there are many
legally authorized workers who cannot resolve a mismatched earnings report.” 2 In
addition, the court found that the regulations could reasonably lead to mass lay-offs of the
legal workforce as a result of the receipt of no-match letters. 3 Finding evidence that the
no-match letters had already led to mass layoffs, the court determined that the 90-day
timeframe in which to resolve discrepancies would result in further termination of
employees who were legally authorized to work.4

Employees are further burdened by the time and effort that following up on a no-match
letter entails. Apart from the severe consequences that await the employee if the
discrepancy cannot be resolved in 90 days, the no-match regulation will result in untold
hours the employee must take from work in order to resolve the discrepancy. This affects
employers and employees alike. The report relied on by DHS when promulgating the
regulations, arguably written by someone who had never personally visited his or her
local Social Security office, estimated the time an employee would spend in correcting

1
American Federation of Labor v. Chertoff, No. 07-04472 (N.D.Cal. filed August 29, 2007), Order Granting
Motion for Preliminary Injunction filed October 10, 2007, at pages 8-9.
2
Id. at page 9 (quoting Apfel’s declaration).
3
Id.
4
Id.

1
records as between 1 and 8 hours.5 These time estimates, however, assume that
discrepancies can be settled by a visit to the Social Security office. In reality, after a trip
to the local Social Security office, the employee may need more documentation from
other agencies in order to resolve the discrepancy to the satisfaction of the SSA. The
employee may be required to locate citizenship, birth, or marriage documentation,
requiring more lost hours at work at great cost to both employer and employee. Greater
impact will be felt by more vulnerable entities: small business employees whose
employers may not be able to spare the time to allow their employees to conduct repeat
visits to the Social Security office or track down records; low-wage workers who cannot
afford the time off of work; and special needs employees who may require assistance or
special accommodations in order to follow up with the SSA or track down records.6

In addition to the burden on the employee under the DHS no-match regulation scheme,
there exists the potential for abuse of the no-match process. Dishonest employers may
attempt to use the no-match regulations to achieve more insidious ends. The receipt of a
no-match letter could lead an employer to make judgments against employees based on
discriminatory factors. Even if the no-match discrepancy is resolved in the employees
favor, the receipt of the letter could plant a seed of suspicion in the mind of the employer,
possibly resulting in discriminatory treatment in other aspects of employment. It has been
alleged that no-match letters are already used by unscrupulous employers to disrupt
organizing activities or to retaliate against workers who complain of workplace
conditions or who have been injured on the job.7 In the hands of an abusive employer and
in the absence of provisions to protect the rights of the employee, the proposed no-match
regulations could have a devastating impact on worker rights.

II. Crime and Punishment 2008

Worksite enforcement raids by DHS inevitably result in the arrest of non-citizens for
administrative violations of civil immigration laws. The non-citizen employee caught up
in the workplace raid must figure out his or her options in immigration court: fighting
deportability in removal proceedings; applying for relief from removal; agreeing to
voluntarily return to his or her country of origin in lieu of removal; or accepting
deportation. The shift toward detention of non-citizens by DHS instead of release has
further complicated issues of worksite enforcement. Negative press surrounds workplace
raids with stories of children left uncollected at schools, relatives searching desperately
for loved ones caught up in ICE raids, and legal immigrants detained for hours or even
days before being released. In addition, there has been greater public focus on the

5
AILA Comment on DHS No-Match Supplemental Proposed Rule, April 25, 2008, AILA Doc. 08042967.
6
Id.
7
National Immigration Law Center, “Facts About the Social Security ‘No-Match’ Letter,” March 26, 2008,
AILA Doc. 08032762 and at http://www.nilc.org/immsemplymnt/SSA-NM_Toolkit/factsaboutno-
matchletter_2008-03-26.pdf.

2
conditions of ICE detention, including revelations of the shocking shortcomings in
medical care for detainees in ICE custody.8

A recent development in the DHS strategy of workplace raids is the increased use of
criminal prosecution of against employees arrested in workplace raids based on
information in I-9 files. The most controversial example of post-raid criminal
enforcement efforts has been following the May 2008 raid on the Agriprocessors, Inc.
meatpacking plant in Postville, Iowa. The special “fast-track” criminal court procedures
used against defendants arrested in the Postville raid were brought to public attention by
Dr. Erick Camayd-Freixas, a court interpreter who recounted his experiences in an essay
published in the New York Times.9 The weapon of choice for prosecutors in the Postville
raid aftermath was an “exploding plea” agreement; defendants facing felony federal
charges would be allowed to plea to a lesser offense in exchange for the forfeiture of any
claims for relief in immigration court.10 The pièce de résistance in this scheme was that
the plea agreement would only be offered for seven days.11 Despite the best efforts of
federal defenders and immigration counsel, hundreds of non-citizens accepted the
exploding plea agreements, abandoning their criminal defenses and immigration claims
all at once.12 So egregious was the treatment of these defendants that the House Judiciary
Subcommittee on Immigration held hearings into the matter and took hours of testimony
from DHS and DOJ as well as criminal defense and immigration law experts, including
Dr. Camayd-Freixas himself.13

We have yet to see the overtly aggressive prosecutorial conduct on the part of the DOJ
duplicated in worksite raids following the Postville debacle. Criminal prosecutions of

8
See Dana Priest and Amy Goldstein, “System of Neglect: As tighter immigration policies strain federal
agencies, the detainees in their care often pay a heavy cost,” May 11, 2008 at
http://www.washingtonpost.com/wp-srv/nation/specials/immigraiton/cwc_d1p1.html.
9
Julia Preston, “An Interpreter Speaking Up for Migrants,” July 11, 2008 at
http://www.nytimes.com/2008/07/11/U.S./11immig.html. Dr. Camayd-Freixas’ essay, “Interpreting after
the Largest Immigration Raid in History: A Personal Account,” may also be accessed at AILA Doc.
08071160. To quote from Dr. Camayd-Freixas’ essay, “Echoing what I think was the general feeling, one of
my fellow interpreters would later exclaim: ‘When I saw what it was really about, my heart sank…’ Then
began the saddest procession I have ever witnessed…Driven single-file in groups of 10, shackled at the
wrists, waist and ankles, chains dragging as they shuffled through, the slaughterhouse workers were
brought in for arraignment, sat and listened through the headsets to the interpreted initial appearance,
before marching out again to be bused to different county jails, only to make room for the next row of
10.”
10
Statement of Deborah J. Rhodes, Senior Associate Deputy Attorney General, United States Department
of Justice before the U.S. House of Representatives Committee on the Judiciary Subcommittee on
Immigration, Citizenship, Refugees, Border Security, and International Law, hearing entitled “Immigration
Raids: Postville and Beyond,” held July 24, 2008, at page 9.
11
Id.
12
Statement of David Wolfe Leopold on behalf of the American Immigration Lawyers Association before
the U.S. House of Representatives Committee on the Judiciary Subcommittee on Immigration, Citizenship,
Refugees, Border Security, and International Law, hearing entitled “Immigration Raids: Postville and
Beyond,” held July 24, 2008, at pages 1 and 5.
13
Stephanie S. Garlow, “Immigration raid Tactics Draw Congressional Ire,” July 24, 2008 at
http://www.U.S.atoday.com/news/washington/2008-07-24-3456309853_x.htm?loc=interstitialskip.

3
non-citizens caught in immigration raids continue, however, which in turn affects the
subsequent ability to pursue relief before an immigration judge.14 Employees can be
charged with a variety of federal crimes relating to information contained in the I-9s
seized by ICE in a workplace raid. Common charges brought by DOJ prosecutors include
identity theft under 8 U.S.C § 1028, misuse of immigration documents under 8 U.S.C §
1546, and misuse of a social security card under 42 U.S.C § 408. Felony charges for
aggravated identity theft under 8 U.S.C § 1028A were utilized by Postville prosecutors
with great success against defendants in conjunction with exploding plea agreements.
When defendants have had opportunity to defend themselves against aggravated identity
theft charges, however, the results have been mixed. There is currently a split in circuit
courts as to the applicability of 8 U.S.C § 1028A in cases where the defendant did not
know that an appropriated identification document belonged to an actual person.15

Any criminal conviction may have serious implications for the ability of a non-citizen to
apply for relief in removal proceedings. A criminal offense may render a non-citizen
statutorily ineligible for relief, or may affect determinations of good moral character
necessary to qualify for relief from removal. Some of the most severe immigration
consequences, however, arise as a result of a conviction for a false claim to U.S.
citizenship.16 A conviction for false claim to U.S. citizenship may make a non-citizen
inadmissible, deportable, and possibly ineligible for many forms of relief under the
Immigration and Nationality Act.17 An administrative finding of making a false claim to
U.S. citizenship will bar immigration benefits in many cases, even in the absence of a
conviction and for conduct that falls short of criminal culpability.18 In addition, a false
claim to citizenship for employment purposes in the Fifth Circuit has been found to be a
bar to admission.19 Interestingly, false claim may not result in the statutory ineligibility to
show good moral character under 8 U.S.C § 1101(f); however, a false claim may result in
a negative exercise of discretion on the part of the immigration judge.20

For the non-citizen employee who began employment using a false identification or
social security number and later becomes employment-authorized, the later legality of his
or her employment is not a complete defense from criminal prosecution. There may be
ongoing criminal liability for information contained in the employer’s I-9 file that
continues unless terminated by the statute of limitations. Depending on the circumstances
of the non-citizen employee, a conviction for an offense related to document fraud may
result in the removal of the employee, even if she or he is a lawful permanent resident.21
Even if an employee avoids criminal prosecution for I-9 problems by coming clean to the

14
See National Immigrant Justice Center, “Immigration Enforcement’s Newest Strategy: Prosecution for
Federal Crimes and Swift Deportation,” Fall 2008, AILA Doc. 0800862.
15
Compare U.S. v. Hurtado, 508 F.3d 603 (11th Cir. 2007) and U.S. v. Villanueva-Sotelo, 515 F.3d 1234 (D.C.
Cir. 2008).
16
18 U.S.C § 911
17
See, for example, 8 USC § 1182(a)(6)(C)(iii)(I) and 8 USC § 1227(a)(3)(D)(i).
18
Id.
19
Theodros v. Gonzalez, 490 F.3d 396 (5th Cir. 2007).
20
Matter of Guadarrama, 24 I&N Dec. 625 (BIA 2008).
21
See, for example 8 USC § 1227(a)(3)(D)(i).

4
employer, she or he may be terminated for violating internal company policies that
prohibit fraud or dishonesty.22

III. The Cost of Doing Business for the Employee

Worksite enforcement operations and the focus on employment verification present

possible traps for the entire workforce, not just the unauthorized workforce. U.S. citizens
can as easily be caught up in an SSA no-match nightmare as a non-citizen working under
an assumed name or Social Security number. In the heat of an ICE raid, an authorized
employee may not immediately be distinguished from workers with questionable I-9s.
Anyone may possibly be targeted by overzealous yet under trained local law enforcement
officers deputized to enforce immigration provisions. Finally, as illustrated above,
workers who may be currently authorized to work may have previous I-9 issues that
return to haunt them with devastating effect. Just as the employer must engage in
thorough pre-worksite raid preparedness, the employee who fails to proactively address
his or her risk in the era of aggressive worksite enforcement is courting trouble.

Like the SSA no-match regulations, the E-Verify program is another employment
verification scheme that relies on Social Security databases to determine immigration
status. Because the E-Verify system relies on the same admittedly faulty databases as the
no-match regulations, all employees, including U.S. citizens, are susceptible to erroneous
“non-confirmations” as a result of discrepancies in the SSA database. Accepting
conservative estimates regarding the error rate in the SSA databases, given the vast
amount of information in the database, even a low error rate will still affect millions of
employees who are legally authorized to work.23 The E-Verify program is as flawed as
the no-match scheme because it treats the SSA database as an immigration verification
database, which by all accounts it is not. Employees, regardless of status, have as much to
fear from E-Verify as they do from the no-match regulations.

Even if they are able to avoid the headaches of the no-match letter or hassles of the E-
Verify program, should ICE decide to raid a place of business, all employees are
vulnerable to abusive ICE tactics. During an ICE workplace raid, armed ICE agents can
and usually will surround and shut down the premises, and proceed to detain and question
all employees about immigration status.24 This has led U.S. citizens and authorized
employees to complain of harsh treatment by ICE in the absence of any wrongdoing, and

22
See Garcia-Contreras v. Cascade Fruit Company, 9 OCAHO 1090 (2003).
23
See Office of Inspector General, Social Security Administration, “Accuracy of the Social Security
Administration’s Numident File, “Congressional Response Report A-08-06-26100, December 2006,
http://www.socialsecurity.gov/oig/ADOBEPDF/audittxt/A-08-26100.htm. One example: “We are
particularly concerned with the extent of incorrect citizenship information in SSA’s Numident file for
foreign-born U.S. citizens and non-citizens we tested…Although SSA is not at fault for these latter
misclassifications, we estimate that of the 46.5 million non-U.S. citizen records in the SSA’s Numident file,
about 3.3 million contain out-of-date citizenship status codes.” (emphasis mine). See also Immigration
Policy Center, “ERROR! Electronic Employment Verification Systems: What Will Happen When Citizens
have to Ask the Government for Permission to Work?”
www.immigrationpolicy.org/images/File/factcheck/EEVSbythenumbers04-08.pdf.
24
Josie Gonzalez, “The Dynamics of an ICE Raid,” January 2, 2008, at AILA Doc. 08010270.

5
often these complaints find their way into the U.S. court system. In September 2007, the
United Food and Commercial Workers Union sued DHS and ICE for violating the rights
of workers, including U.S. citizens, during the December 2006 raids at Swift & Co.
meatpacking plants.25 In April 2008, 114 U.S. citizens and lawful permanent residents
filed Federal Tort Claims Act (FTCA) claims against DHS and ICE on complaints that
they were “illegally detained and harassed during a large-scale ICE immigration raid at
Micro Solutions Enterprises in Los Angeles on February 7, 2008.26 In response to
testimony from victims of aggressive ICE enforcement activities at the workplace,
Senators Edward Kennedy and Robert Menendez introduced the Protect Citizens and
Residents from Unlawful Raids and Detention Act in September 2008. The act contains
many common-sense protections for individuals during an ICE raid: notification of
immigration charges, access to counsel, guarantees for humane treatment for detainees.27
For now, DHS clearly chooses the shotgun over the rifle when conducting workplace
raids, unconcerned for the individual rights of the law-abiding workforce.

DHS’s enforcement mania has expanded beyond the workplace and out into the streets.
As easily as U.S. citizens and residents have been ensnared by DHS and ICE tactics at the
workplace, 287(g) agreements allow even more opportunities for law-abiding persons to
be hassled for perceived immigration violations. Immigration enforcement under 287(g)
agreements allow for local law enforcement officers, armed with four weeks of
immigration training, to carry out many of the same immigration enforcement powers as
federal agents with years of training and experience. There has been widespread criticism
of 287(g) agreements, with opponents pointing out that immigration enforcement
responsibilities distract local officers from prosecuting actual crimes and takes away
scarce local government resources to aid the federal government with little or no
compensation. The 287(g) program has also been blamed for a rise in racial profiling and
other civil rights violations by local law enforcement. Even the most popular 287(g)
programs are coming under fire for civil rights abuses.28

IV. Bad Actors and Good Actors-Helping Employees Navigate the Minefield

Given the myriad of ways that the rights of employees will be affected in the current
climate of enforcement, the individual employee would be best served by taking
appropriate measures to safeguard his or her rights and mitigate potential problems

25
United Food and Commercial Workers Int’l Union v. Chertoff, No. 07-00188 (N.D.Tex. filed Sept. 12,
2007). See also United Food and Commercial Workers Union Press Release, “Workers Sue to Stop Mass
Arrests and Detentions by Federal Agents,” September 12, 2007 at
http://www.ufcw.org/press_room/index.cfm?pressReleaseID=349. Mike Graves, a Swift & Co. plant
worker, recounts, “When I tried to report to the cafeteria during the raid, ICE agents accused me of trying
to run away. They held me in handcuffs. I’m a U.S. citizen, born in Iowa…My government treated me like a
criminal, and I didn’t do anything wrong.”
26
Center for Human Rights and Constitutional Law Press Release April 25, 2008, at
http://centerforhumanrights.org/4-25-08%20Damages%20ICE%20Raids%20Press%20Statement.pdf.
27
See AILA’s Overview of the Protect Citizens and Residents from Unlawful Raids and Detention Act (S.
3594), AILA Doc. 08092670.
28
ACLU Press Release, “Sheriff Arpaio Sued Over Racial Profiling of Latinos in Maricopa County,” July 16,
2008 at http://www.aclu.org/immigrants/gen/36011prs20080716.html.

6
with worksite enforcement/employment verification programs. All employees,
authorized or not, must be proactive about their rights. It should also be understood
that the employer is not the enemy; the federal government has burdened the
employers just as they have the employees. The reality of DHS worksite enforcement
means, however, that the interest of the employer and the employee may not always
be in alignment. In the era of employment verification and worksite enforcement,
there are several points for the employee to remember:

• All employees must be treated equally

• I-9 re-verification only allowed in limited circumstances, such as EAD
expiration
• The DHS no-match regulations are not yet enforceable; at this time,
employees may not be terminated on the basis of an SSA no-match letter
alone
• Employees choose the documents in the I-9 list to present, not the
employer
• Employees must be proactive and timely present the employer with
renewed EADs, and update the SSA and the employer if change in
authorized status
• Know what constitutes document abuse: if the employer departs from the
I-9 requirements by requesting different documents, more documents, or
refusing to accept documents that are facially valid
• Know that there will be no document abuse if the employee is
unauthorized to work
• If an employee suspects document abuse, she or he must file a complaint
with the OSC within 180 days after the occurrence
• If employees are proactive about I-9 updates, there will be less to worry
about
• An employee who knows that damaging information is in his I-9 is in a
precarious position; she or he should be aware of the potential criminal
and immigration consequences of the information in the I-9 file
• Employee should carry documentation that shows identity and work
authorization at the workplace to the extent practicable; in the event of an
ICE raid, easy access to identification may help the employee avoid
unnecessary detention
• The employer’s counsel will not and should not be your counsel,
especially if the employee is undocumented (there may be a conflict of
interest). The employee should seek separate counsel
• During and after the ICE raid, both criminal and immigration counsel will
most likely be necessary (if the employee is unauthorized and knows that
she or he will have an I-9 problem)
• U.S. citizens may need civil counsel after a raid; know how to contact the
OSC, the ACLU, the union rep, or a private civil rights attorney if the
employee is unfairly targeted or has an FTCA claim
• Communities need not only raid response preparation, but should plan
ahead before a raid ever happens: help workers set up legal defense funds;
7
 assist individual employees to obtain pre-raid legal advice on immigration
and/or criminal matters; create legal instruments for workers to protect the
minor children and property of the employee
• Employees must be mentally and physically prepared for the indignities
that ICE has in store in the event of a raid; stay calm and collected, be
mindful of individual rights yet respectful of government agents, and
generally take the high road in a worksite enforcement action

8
 TAB 19
Snatching Victory from the Jaws of Defeat
Snatching Victory From the Jaws
of Defeat
Examples of Solutions to “Ability to Pay”
Problems

ROBERT W. ALCORN, MBA, CPA

14881 QUORUM DRIVE
LB #9, SUITE 410
DALLAS, TX 75254-7014
PH: 972-724-0325
FAX: 972-539-6226
EMAIL: ROBERT@RWALCORNCPA.COM

YATES MEMO

1
 Examples of Solutions to
“Ability to Pay” Problems

 Net Income
The initial evidence reflects that the p
petitioner’s net
income is equal to or greater than the proffered wage.
 Net Current Assets
The initial evidence reflects that the petitioner’s net
current assets are equal to or greater than the proffered
wage.
 Employment
p y of the Beneficiaryy
The record contains credible verifiable evidence that the
petitioner not only is employing the beneficiary but also
has paid or is currently paying the proffered wage.

Definition of Net Current Assets

Current Assets:
Appearing on a company's balance sheet, it represents cash, accounts receivable, inventory,
marketable securities, prepaid expenses, and other assets that can be converted to cash
within one year date of the balance sheet

Current Liabilities:
Usually appearing on a company's balance sheet, it represents the amount owed for interest,
accounts payable, short-term loans, expenses incurred but unpaid, and other debts due
within one year from the date of the balance sheet

Net Current Assets:

The resultant of subtracting Net Current Liabilities from Net Current Assets. This number can
be either positive or negative.

2
 Net Current Assets Example:

Cash $100,000
Accounts Receivable 50,000
Inventory 25,000
T l Current
Total C A
Assets $1 000
$175,000

Accounts Payable $40,000

Mortgage Payments Due within 12 months 36,000
Sales and Payroll Taxes Payable 14,000
Total Current Liabilities $90,000

Net Current Assets $85,000

Case 1

DEBT TO SHAREHOLDER
MISCLASSIFIED AS CURRENT
LIABILITY

3
 CASE 1

In my interview with the client, I was told that the amount shown on
line 17 of Schedule L for each of the 3 years was not the current portion of
any long
long-term liability, but was in fact a loan due to the sole
term liability
shareholder of the S-corporation.

By virtue of the fact that this debt the corporation owed to the
shareholder had been outstanding as of the end of 2005 and 2006, this
debt should not have been classified on line 17 of Schedule L as
Mortgages, notes,
“Mortgages notes bonds payable in less than 1 year”year . Instead it should
have been classified on line 19 of Schedule L “Loans from Shareholders”
and treated as a long-term liability for purposes of calculating
“net current assets”.

CASE 1

Please note that this classification error of the Loan to

Shareholder on the balance sheet Schedule L of the Forms 1120S had
no effect on the ordinary business income of the S-corporation
as reported on page 1 of the Forms 1120S nor on the income allocated
to the shareholder personally on the S-corporation’s Forms K-1 to the
shareholder, and thus an amended corporate return would not be
required.

4
 CASE 1

Case 1
Calculation of Net Current Assets
as of December 31 for 2004, 2005 & 2006 Original Form

Line #
Current Assets on Sched L 2004 2005 2006

Cash 1 357 13,115 32,872

Trade Notes and Accounts Receivable 2a 46,569 68,869 53,130
Inventories 3 9,600 12,000 15,125
Other Current Assets 6 30,048

Total Current Assets 86,574 93,984 101,127

Current Liabilities
Accounts Payable 16 27,594 27,594 27,594
Mortgages, notes, bonds payable in less than 1 yr 17
O h Current
Other C Liabilities
i bili i 18

Total Current Liabilities 27,594 27,594 27,594

Net Current Assets $ 58,980 $ 66,390 $ 73,533

5
 Case 2

COMPLEXITIES OF
“NET INCOME” IN
S-CORPORATIONS &
PARTNERSHIPS

CASE 2

6
 CASE 2

CASE 2
In this case, the petitioner is an S-corporation. S-corporations
are “pass-through” entities, meaning that various income and
expense deductions, which receive special treatment in the hands
p y ((S-corporation
of an individual taxpayer p shareholder in this case)) are
passed-through from the S-corporation to the individual via various
sections of the Form 1120S. One cannot look at only page 1 of
the S-corporation return to determine its level of income or
loss.

In order to see the total income for an S-corporation, these

various incomes listed in the various sections of the Form 1120S
need to be combined in order to form an accurate picture of
the activities of the S-corporation.

7
 CASE 2
First, let me address the calendar year of 2005. The “Ordinary
Business Income(Loss)” shown on page 1, line 21 of the 2005 Form
1120S is ($5,033). However, to this amount should be added the
$22,432 of interest income shown on pg 3, Sch K, line 4, which is the
interest income the S-corporation earned in 2005 from its note
receivables. Also, the deferred installment gain of $8,498
reported as a result of receiving the installment payments on the notes
receivable, in addition to the interest income mentioned above, should be
added in calculating the total income of the corporation for 2005 (see pg 2,
Sch K, ln 9 and Form 6252, ln 26).

By adding the ordinary business loss ($5,033), the

interest income of $22,432 and the installment gain of $8,498,
this brings the overall income of the S-corporation from it
various sources for 2005 to $25,897.

CASE 2

8
 CASE 2

Case 3

COMBINING “WAGES ACTUALLY

PAID” WITH NET CURRENT
ASSETS

9
 CASE 3
As of August 15, 2007, XYZ Inc has demonstrated that it has the
capacity to pay the proffered wage in that for the period February 28, 2007
through
g July y 31, 2007 XYZ Inc has already yp paid cash
compensation in the amount of $10,023, while maintaining a net
cash-basis profit of $8,769 for the same period, and at the same time
has a net current assets balance of $41,482.24. This net current
assets balance is composed entirely of cash balances in the
Washington Mutual corporate operating account, i.e. – is entirely liquid
(e.g. – not non-cash current assets such as inventory & accounts
receivables, but immediatelyy liquid
q cash reserves)) and at the immediate
disposal of the company to pay the balance of the annual $50,000
proffered salary, or $39,977 ($50,000 proffered salary less the salary paid
thus far in 2007 of $10,023).

CASE 3

10
 CASE 3

Case 4

USE OF PARENT COMPANY TO

SUPPORT PETITIONER

11
 CASE 4

Robert W Alcorn, MBA, CPA

14881 Quorum Dr
LB #9, Suite 410
Dallas, TX 75254-7014
Office 972-724-0325 Mobile 972-839-0962 Fax 972-539-6226 robert@rwalcorncpa.com
___________________________________________________________________________________________________________

To Whom It May Concern: January 31, 2007

With regard to Mr. ABC and his Form W-2 for the calendar tax year
2004, I have been asked to opine as to the rate of compensation that Mr.
ABC received from the petitioner, XYZ Inc and its related parent
party, 123 Inc, which owned 50% of XYZ, Inc. during the calendar tax
year 2004 until its sale in October 2004.

CASE 4
Based on my reading of the 2004 Federal U.S. Corporation Income Tax
Return Form 1120 for XYZ, Inc., the return indicates that 123 Inc owned
50% of XYZ, Inc (pg. 3, Schedule K, Line 5 and the attendant Statement 6
attached thereto).

The W-2 issued to Mr. ABC by 123 Co for the period of Mr. ABC’s
employment from July 26, 2004 through October 31, 2004 shows that he was paid
$78,299.52 during this 98 day period, such period including the date of petition of
August 17, 2004. Based on the $78,299.52 in salary paid to Mr. ABC for the 98
days ending October 31, 2004, the annualized salary would be $291,625.76 (see
attached schedule) as of the date of petition, August 17, 2004.

y, with regard
Additionally, g to the successor entity, y, NUCO Inc,, based
on my reading of its 2004 Federal U.S. Tax Return for an S Corporation Form
1120S for the short initial tax period October 13, 2004 (date of formation of this
new entity) and the end of calendar tax year 2004, which was December 31st, 123
Co. had a cash balance of $382,468 as of December 31, 2004.

12
 TAB 20
Asylum
 The University of Texas School of Law

Presented:
2008 Immigration Law Conference

October 23-24, 2008

San Antonio, Texas

Asylum and Withholding of Removal Under §241(B)(3)

and the Convention against Torture

Edna Yang

Author contact information :

Edna Yang
Political Asylum Project of Austin
Austin, TX

Continuing Legal Education • 512-475-6700 • www.utcle.org

 ASYLUM AND WITHHOLDING OF REMOVAL UNDER §241(b)(3) AND THE
CONVENTION AGAINST TORTURE

An individual seeking asylum within the United States must demonstrate that s/he is a

refugee, a designation that includes “any person who is outside any country of such person's

nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail

himself or herself of the protection of, that country because of persecution or a well-founded fear

of persecution on account of race, religion, nationality, membership in a particular social group,

or political opinion . . . .” 8 U.S.C. § 1101(b)(1)(B)(i) (2000); 8 U.S.C. § 1101(a)(42)(A) (2000).

The burden of proof is on the applicant to establish that s/he is eligible for relief. This burden is

met by demonstrating that s/he has suffered past persecution or has a well-founded fear or future

persecution.

Persecution

An individual seeking asylum must demonstrate that s/he has suffered past persecution or

a well founded fear of future persecution. There is no actual definition of persecution in the

Immigration and Nationality Act (INA) or the accompanying regulations. Instead we look to

case law to determine what constitutes persecutions. Courts have broadly defined persecution as

“the infliction of suffering or harm, under government sanction, upon persons who differ in a

way regarded as offensive (e.g., race, religion, political opinion, etc.), in a manner condemned by

civilized governments.” Abdel-Masieh v. INS, 73 F.3d 579, 583-584 (5th Cir. 1996) (citing

Matter of Laipenieks, 18 I. & N. Dec. 433, 456-457 (BIA 1983), rev'd on other grounds, 750

F.2d 1427 (9th Cir. 1985)). See also Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985); Mikhael

v. INS, F.3d 299 (5th Cir. 1997); Osaghae v. INS, 942 F.2d 1160, 1163 (7th Cir. 1991)

1
(persecution includes "punishment for political, religious, or other reasons that our country does

not recognize as legitimate").

In addition, persecution does not always have to include physical harm. Courts have also

found persecution for applicants who have been threatened and attacked even when they were

not beaten or physically harmed. See Baballah v. Ashcroft, 367 F.3d 1067, 1074 (9th Cir. 2004).

Threats of violence and death can also be sufficient to constitute persecution. Sangha v. INS,

103 F.3d 1482, 1487 (9th Cir. 1997). However, not all harm rises to the level of persecution.

Generalized conditions of hardship that affect entire populations are not always persecution. An

applicant must also demonstrate that the persecutor is a state actor or, if a non-state actor, that the

government is unwilling or unable to control the non-state actor.

Nexus, On Account of…

To be eligible for asylum, an individual must produce some evidence, whether direct or

circumstantial, that his/her persecutors were motivated to harm him/her on account of one of the

protected grounds. INS v. Elias-Zacarias, 502 US 478, 483 (1992). Due to the passage of the

Real ID Act, there is a new standard for this nexus for all applications filed on or after May 1,

2005. Applicants must now demonstrate that the protected ground is “one central reason” to the

persecution that was suffered. INA §208(b)(1)(B)(i).

Race – The term “race” should be interpreted in its widest sense to include “all kinds of

ethnic groups that are referred to as ‘races’ in common usage.” UNHCR Handbook at ¶ 68.

Nationality – Nationality includes citizenship, as well as membership in an ethnic or

linguistic group, and may occasionally overlap with her term “race.” UNHCR Handbook at ¶ 74.

Religion – Persecution based on religion may include: the prohibition of membership in a

religious community; worship in private or public; religious instruction; or serious

2
discriminatory measures imposed on persons because they practice their religion or belong to a

particular religious community. UNHCR Handbook at ¶ 72.

Particular Social Group – A “particular social group” has been defined as a group of

people who are “closely affiliated with each other and motivated by a common impulse or

interest” and who share “recognizable and discrete” attributes. Gomez v. INS, 947 F.2d 660, 664

(2nd Cir. 1991). The seminal BIA case dealing with a particular social group interprets the term

to mean “a group of persons all of whom share a common, immutable characteristic [which]

might be an innate one such as sex, color or kinship ties, or [ ] a shared past experience.” Matter

of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985).

Political Opinion – This includes both imputed and actual political opinion. To establish

a political opinion generally an applicant must prove, by direct or circumstantial evidence that

his or her conduct was a form of expressive conduct constituting a statement of political opinion.

See INS v. Elias Zacarias, 502 U.S. 478, 481 (1992). The Fifth Circuit in Rivas-Martinez

interpreted the Supreme Court’s holding in Elias-Zacarias in a manner that emphasized the need

to evaluate whether the applicant held a political opinion or engaged in political conduct within

the context of the applicant’s social and political reality. See Rivas-Martinez v. INS, 997 F.2d at

1147 (5th Cir. 1993).

Well Founded Fear

An applicant must show a “reasonable possibility” that s/he will be persecuted. There is

a subjective and objective component to this requirement. See Matter of Mogharrabi, 19 I. & N.

Dec. 439 (BIA 1987). A well-founded fear is established where: (1) the applicant is afraid of

being persecuted on the basis of a protected ground, (2) there is a reasonable possibility such

3
persecution will occur upon return, and (3) the applicant is unable or unwilling to avail himself

of the protection of his/her government. 8 C.F.R. §208.13(b)(2)(i).

A well founded fear can also be established if an applicant can demonstrate past

persecution. The demonstration of past persecution triggers a presumption of a well founded

fear of future persecution. 8 C.F.R. §208.13(b)(1). The burden of proof then shifts from the

applicant to the government, who must then show either a fundamental change in circumstances

or the possibility of internal relocation to overcome the presumption of future persecution. If the

government successfully rebuts the presumption of future persecution, an applicant can still be

granted asylum if s/he can demonstrate compelling reasons for being unwilling or unable to

return arising out of the severity of the past persecution or a reasonable possibility of suffering

other serious harm. 8 C.F.R. §208.13(b)(1)(iii).

Bars to Asylum

There are several bars to the grant of asylum. In order to eligible for asylum, an applicant

must not have: participated in the persecution of others; firmly resettled in another country; been

denied asylum previously in Immigration Court or by the BIA; failed to file within one year of

the last entry to the US1; been convicted of an aggravated felony or a “particularly serious

crime;” committed a “serious nonpolitical crime” outside the US; passed through a “Safe Third

Country” which has a bilateral agreement with the US; or be considered a danger to the security

of the US or participated in or supported terrorism.

1
There are two exceptions to the one year filing deadline: (1) An applicant demonstrates the existence of changed
circumstances which materially affect the applicant’s eligibility for asylum, or (2) An applicant demonstrates
extraordinary circumstances relating to the delay in filing the application within the one-year period. INA
§208(a)(2)(D). “Extraordinary circumstances” include, but are not limited to: serious illness or mental or physical
disability. Including any effects of persecution or violent harm suffered in the past during the one-year period after
arrival; legal disability during the one-year period after arrival; ineffective assistance of counsel.

4
Withholding of Removal

An individual cannot be returned to his/her home country if it is determined that his/her

life or freedom would be threatened there because of one of the statutory grounds. INA

§241(b)(3)(A). The standard for establishing such a threat is the “more likely than not,” or clear

probability, test. INS v. Stevic, 467 US 402, 424 (1984). Unlike asylum, there is no

discretionary component to withholding of removal; where eligibility is established, and no bars

apply, a grant is mandatory. But like asylum, where past persecution has been established an

applicant is entitled to a presumption that his life or freedom would be threatened on return to his

country, unless DHS can show changed circumstances or a reasonable relocation potential. 8

CFR §208.16(b)(1).

Convention Against Torture

Article 3 of the Convention Against Torture (“CAT”) provides that “No State Party shall

expel, return (“refouler”), or extradite a person to another State where there are substantial

grounds for believing that he would be in danger of being subjected to torture.” The term

“torture” is defined in Article 1 of CAT, which is the basis for the regulatory definition that

applies here:

Torture is defined as any act by which severe pain or suffering, whether

physical or mental, is intentionally inflicted on a person for such purposes as
obtaining from him or her or a third person information or a confession,
punishing him or her for an act he or she or a third person has committed or
is suspected of having committed, or intimidating or coercing him or her or a
third person, or for any reason based on discrimination of any kind, when
such pain or suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an
official capacity.

8 CFR §208.18(a)(1)(a).

5
An applicant is eligible for withholding of removal under Article 3 of CAT if s/he can show that

it is more likely than not that s/he would be tortured if returned to her home country. 8 CFR

§208.16(c). In evaluating an applicant’s eligibility for relief, the following are considered: (1)

evidence of an applicant’s past experiences of torture, (2) evidence that the applicant would not

suffer torture in other parts of the country where he was tortured in the event of removal, (3)

evidence of “gross, flagrant or mass violations of human rights within the country of removal,”

and (4) other relevant information regarding conditions in the home country. See 8 CFR

§108.16(c)(3).

6
 Asylum, Withholding of
Removal, and the Convention
Against Torture

Political Asylum Project of Austin

(PAPA)

CASE STUDY
„ 24 Year old woman from Somalia
„ Has suffered FGM
„ Is a member of a Minority Tribe
„ She was sexually assaulted. Two
members of her family were killed
killed. She
is not sure who killed them
„ Hid on a boat to get to the US

1
Asylum 8 C.F.R. §208
„ Individual must be physically present in
the US.
„ Must establish:
„ Past Persecution OR Well Founded Fear of
Future Persecution
„ On Account of one of five protected
grounds
„ Discretionary Relief

Grounds for Asylum

„ Race
„ Religion
„ Nationality
„ Political Opinion
p
„ Membership in a Particular Social
Group

2
Legal Test for Asylum
§101(a)(42)(A)
Must meet the definition of a refugee:
Any person who is outside any country of such
person’s nationality or, in the case of a person having
no nationality, is outside any country in which such
person last habitually resided, and who is unable or
unwilling to return to, and is unable or unwilling to
avail himself of the protection of, that country
because of persecution or well founded fear of
persecution on account of race, religion, nationality,
membership in a particular social group, or political
opinion.

Persecution Defined
„ No actual definition of persecution in
INA or accompanying regulations
„ Courts have broadly defined it as “the
infliction of suffering or harm upon
those who differ in a wayy that is
regarded as offensive.” Matter of
Acosta, 19 I&N Dec. 211 (BIA 1985);
Mikhael v. INS, F.3d 299 (5th Cir. 1997)

3
Persecution Cont’d.
„ Threats to life or freedom uniformly considered
persecution.
„ Physical abuse, even when non-life threatening can
constitute persecution.
„ Harm or suffering MUST be more than mere
harassment or discrimination. Balazoski v. INS, 932
F.2d 638 (7th Cir. 1991).
„ Generalized climate of criminalityy or civil strife in
itself not enough to constitute persecution; applicant
must be personally targeted for specific reasons
„ Single incidents of harm that in themselves may not
amount to persecution, taken together could add up
to persecution (“cumulative effect”). See UN
Handbook at 53

Persecution Cont’d
Persecutor must be a state actor or - if
non-state actor - a person or group the
government is unable or unwilling to
control. Non-state actors could be:
guerilla forces, death squads, dominant
clans, paramilitary groups, or groups
tolerated by society at large (for
example in cases of severe racial bias,
gender, or sexual orientation)

4
Well Founded Fear
„ Must show a “reasonable
reasonable possibility
possibility” applicant will be
persecuted (even a 10% chance could be enough).
INS v. Cardoza Fonseca, 480 U.S. 421 (1987)
„ Subjective and Objective Component, Matter of
Mogharrabi, 19 I&N 439 (BIA 1987)
„ Subjective: Actual fear of returning to home country
„ Objective:
„ Presentt specific
P ifi ffacts
t th
through
h objective
bj ti evidence
id off country
t
conditions and persuasive credible testimony, and
„ Show that given the evidence presented a reasonable person
would experience a fear of persecution

Past Persecution
„ A finding of past persecution triggers a presumption
of future persecution, 8 C.F.R. §208.13(b)(1).
„ DHS then has the burden of rebutting the
presumption by showing either
„ Fundamental Change in Circumstances, or
„ Possibility of Internal Relocation
„ If DHS successfully rebuts presumption, applicant can
still be g
granted asylum
y if he can demonstrate
compelling reasons for being unwilling or unable to
return arising out of the severity of the past
persecution or a reasonable possibility of suffering
other serious harm, 8 C.F.R. §208.13(b)(1)(iii)

5
Internal Relocation
8 C.F.R. §208.13(b)(2)(ii)
„ DHS can defeat the presumption of a well-
well founded
fear of persecution if they can show that applicant
could avoid persecution by relocating to another part
of the home country and that it would be reasonable
for the applicant to do so.
„ Factors to be considered:
„ Ongoing civil strife;
„ strength/weakness
t th/ k off gov’t
’t iinfrastructure;
f t t
„ Geographical limitations;

„ Social/cultural constraints

Note: if persecutor is the government, relocation is presumed

to be unreasonable

On Account of…
„ Must show a nexus between past or feared
future persecution and one of the five
protected grounds.
„ REAL ID – new standard for the nexus for
application filed on or after 05/1//2005:
„ “At
At least one central reason”
reason INA §208(b)(1)(B)(i);
„ Corroborating Evidence
„ Credibility standard
„ Review Standards

6
On Account of…
„ Race: All kinds of ethnic groups that are referred to
as “races” in common usages. Defined by UNHCR
Handbook on Procedures and Criteria for Determining
Refugee Status;
„ Religion: Can include the prohibition of public or
private worship or serious discrimination b/c of
membership in a particular religion or religious
community Mere membership is not enough;
community.
„ Nationality: Includes citizenship or membership in an
ethnic or linguistic group and often overlaps with
“race.” UNHCR Handbook

On Account of…
„ Political Opinion: includes actual and
imputed opinion. In 1996 Congress
amended the definition of a refugee to
specifically include persons persecuted
due to coercive population control
programs such as forced abortion,
sterilization, or fear of persecution b/c
of refusal to participate in these
measures.

7
On Account of…
„ Membership in a Particular Social Group:
„ Broad concept. Defined by UNHCR as “persons of
similar background, habit or social status.”
„ Courts have held that members of a PSG must
share a “common, immutable characteristic.”
Matter of Acosta 19 I&N Dec. 211 (BIA 1985)
„ Generally understood as a group of people who
share, or are defined by, certain characteristics
such as age, geographic location, class
background, ethnic background, family ties,
gender, and sexual orientation.

Bars to Asylum Eligibility

„ Participation in persecution of others
„ Firm resettlement in another country
„ Prior asylum denial in Immigration Court or by BIA
„ Failure to file within one year of last entry to US (with
exceptions)
„ Conviction of an aggravated felony or “particularly
serious crime”
„ Committed a “serious
serious nonpolitical crime”
crime outside US
„ Passed through a “Safe third country” which has a
bilateral agreement with US (so far only Canada)
„ Terrorism/danger to security of US

8
Withholding of Removal,
INA §241(b)(3)
„ More likely than not a person’s
person s life or freedom will be
in danger on account of one of the five protected
grounds (higher burden than asylum). INS v. Stevic,
467 U.S. 407 (1984)
„ Past persecution triggers presumption of future
persecution
„ No one-year deadline for filing
„ Limited benefits – cannot adjust; no derivative status
for spouse or minor children; can lose status if leave
country; but can remain in US and work legally

Convention Against Torture

„ United Nations Convention Against
g Torture (CAT)
( ) prohibits
p the
return of a person to a country where he or she is likely to be
subjected to torture. See 8 CFR §§ 1208.16(c) and 1208.17
„ No requirement that torture be on account of one of the five
protected grounds.
„ No one-year deadline for filing
„ Two forms of CAT protection:
„ Withholding of Removal (WOR) has same bars to eligibility as WOR
under INA § 241(b)(3); withdrawal of protection requires
reopening case and DHS prove that torture no longer likely
„ Deferral of Removal – no bars to eligibility; more easily withdrawn;
grantee may still be held in detention if serious crime involved.

9
CAT cont’d
„ Torture must be:
„ An intentional act
„ inflicting severe pain or suffering (including
mental suffering),
„ by or sanctioned by a public official (not
enough that gov
gov’tt unable or unwilling to
control the offender).
„ Applicant must be under the custody or
control of the offender

CAT cont’d
„ ‘More
More likely than not
not’ standard.
standard Applicant
Applicant’ss
burden to show substantial grounds for
believing he or she would be tortured.
„ Prospective only. Past torture does not
trigger presumption of future torture;
„ However “all
However, all evidence
evidence” relating to possible
future torture must be considered (including
past torture, and flagrant human rights
violations, in country of removal)

10
Political Asylum Project of
Austin (PAPA)
314 E
E. Highland Mall Blvd.
Blvd
Suite 501
Austin, TX 78752
((512)) 478-0546
www.papaustin.org

11
 TAB 21
Using the Internet to Stay Current with Immigration Laws,
Procedures, and Agency Interpretations
The University of Texas School of Law

Presented:
The University of Texas School of Law
32ND ANNUAL CONFERENCE ON
IMMIGRATION & NATIONALITY LAW

October 22-24, 2008

San Antonio, Texas

USING THE WEB TO

PRACTICE
IMMIGRATION LAW

Eugene J. Flynn

Author contact information:

Eugene J. Flynn
EUGENE J. FLYNN, P.C.
Dallas, Texas

ejflynnlaw@gmail.com
214-821-1661

Continuing Legal Education • 512-475-6700 • www.utcle.org

 Preface

This paper is an update of the papers included in the 2002, 2003, 2004, 2005, 2006 and
2007 UT Immigration Conference materials. If you have any of those papers, throw them away.
Over half the URLs change every year and this year was no exception.

Introduction

In 1978 I was a law clerk in the Law Offices of Wallace Heitman. He was one of the first
Certified Specialists in Immigration and Nationality Law in Texas. One of the assignments he
gave me was to put together a “Law Clerk’s Manual” for Immigration Law. The first part of that
manual dealt with what was to be checked on a regular basis to see to it that we had the most up-
to-date information.

Many prominent individuals in our field, including Steve Ladik and Judge Glenn
McPhaul, had the joy of laboriously turning the pages of the Federal Register, F.Supp., F2d, the
United States Code, Congressional and Administrative News (USCCAN), and many other
publications to discover what was new. There was basically one service available in those days,
Interpreter Releases, and it was slow to arrive in Dallas. Mr. Heitman wanted to have the most
recent items on his desk, and it was up to the law clerk to give it to him.

That Law Clerk’s Manual is still valid today. The difference is that we do not have to run to a
law library and turn pages. Now we can point and click and in some instances simply have our
computer do it for us via RSS feeds, which we will discuss later.

Below I take you through what I do every day to keep up in this field. I do not
recommend that you do all of the pointing and clicking personally. If your firm has one, a law
clerk, or even a receptionist, can be trained to check the various sources and print or forward to
you electronically what you would like to see and read. Perhaps you prefer to have an outside
source prepare an electronic summary for you, which are available, as noted below.

This presentation does not cover everything that is available on the web. My co-
presenter, Carl Shusterman, will have the honor of attempting to do that.

Daily Review

Bright and early every morning I review my downloaded e-mails, check my RSS feeds
and start to check key websites. Some of the e-mails and RSS feeds inform me of new postings
on the web, including new Board of Immigration Appeals (BIA) decisions, new GAO Reports,

1
newly published 5th Circuit Opinions and even that particular day’s contents of the Federal
Register. Further information on how to receive such e-mails will be discussed momentarily.

To give you an idea of what the sites look like, I have included a printout of a page of
each site I discuss as an appendix to these materials. With some exceptions they are in what-
you-see-is-what-you-get format.

One of the first sites I used to check in the morning was the American Immigration
Lawyers Association (AILA) (Appendix 1) http://www.aila.org/ (see discussion infra regarding
receiving e-mail updates from AILA). Now I check it in the evening after the postings for the
day have ended. If you are not a member, I encourage you to join, as only members can use this
research tool.

AILA posts to their InfoNet site Service Center Processing Times, administrative and
court cases, liaison minutes from meetings with numerous divisions of the Department of
Homeland Security, the Department of Labor, the Department of State and even the Social
Security Administration.

I store everything posted on AILA InfoNet on my hard drive in searchable PDF format.
If you do not have a full Acrobat program to save in PDF format, free programs are available. I
use CutePDF Writer which is available for free at http://cutepdf.com.

I save the items by date in annual subdirectories. For example, the first item posted to
InfoNet on this first day of this conference would be named OCT22-01.PDF. It would be stored
in the "data2008" subdirectory. I also store the summaries that ALIA posts for all items in an
index file. I include my file name when moving that day’s items to my index file for easier
retrieval. I still use an old version of Norton Utilities Text Search to assist in finding items I
have stored in ASCII text, such as the index files. For the PDF files, Acrobat Reader 8.1.2 has
an excellent search feature which allows you to search all PDF files in a directory.
Unfortunately, many older PDF files are in graphic format and are not searchable, requiring a
separate index.

Why save everything? Because AILA does not keep everything they post. Often they
will remove, for example, early versions of proposed legislation so as not to confuse the
members as to what was enacted. Knowing that such is part of the legislative history of the
particular statute, I prefer to keep the material, as it might be useful. See e.g. In re Pedro
Rodriguez-Rodriguez, 22 I&N Dec. 911, 1003 (BIA 1999) (Guendelsberger, dissenting).

Recently an AILA member was seeking a case I summarized for the old AILA Monthly
Mailing back in 1994. A reprint of the case was still listed as available on AILA InfoNet.
Needless to say AILA no longer had the case, but I did. I scanned it and sent it to AILA as a
graphic. They converted it to a searchable format and posted it to InfoNet.

AILA is not the only one to remove items from their website. Changes at the Department
of State website removed a number of historical items. When converting to their new website,
the USCIS lost nonprecedent Administrative Appeals Office decisions. Some of them are back

2
on the new website, but not all of them. Well over 500 case from the first half of 2000 were
never put back up. Also, there have been times during a given year when new cases were posted
in a particular category and in doing so the cases from earlier in the year were removed.

My next point and click is to check for any new BIA decisions posted to the website of
the Executive Office for Immigration Review (Appendix 2)
http://www.usdoj.gov/eoir/vll/intdec/nfvol24.htm. You will see that when you click on the page number,
the case appears. As of this writing the page number (609) it leads you to Interim Decision 3621
at http://www.usdoj.gov/eoir/vll/intdec/vol24/3621.pdf. One can also just change the Interim Decision
number (in this case 3621) to the next number (in this case 3622) and click. Often pages are
there on the website but the URLs do not work. Also, using this method, sometimes I find and
read new cases before I receive an e-mail notification from the BIA, and sometimes, even before
Dan Kowalski gets the case.

Next it is time to check the Federal Register. One can find the Federal Register at the
website of the Government Printing Office (Appendix 3)
http://www.access.gpo.gov/su_docs/fedreg/frcont08.html. One can also have that day’s table of contents
sent to you via e-mail (see infra). Lately the e-mails from the Federal Register have come the
night before around midnight, so if you are a night owl you can get a jump on your colleagues. I
do a quick check for anything under “Immigration,” “Employment,” "Homeland," “Justice,” and
“State.” Others who have interests in other areas might add additional checks to their list.

Checking the Federal Register was particularly beneficial to me in 2005. I was editing
articles for Immigration Options for Investors and Entrepreneurs (AILA 2006). One article I
had been assigned to edit was about E-2 Treaty Investors. On Friday September 2, 2005 the
State Department published new regulations renumbering the E visa provisions. AILA and
ILW.COM (see infra) did not link to those regulations until Tuesday, September 6th. In getting
the regulations the day they came out I was able to change the citations over the Labor Day
weekend rather than trying to get it done along with my income producing work on Tuesday.

I used to make a quick daily stop is the “What’s New” web page for the Foreign Affairs
Manual. Unfortunately that has not been updated since June 2007. We will discuss the problems
with th State Department below. Without “What’s New” being updated one cannot know when
a Reciprocity Schedule has been updated. Previously one could go to each country's page and
check schedules individually but the DOS website no longer has dates of revision on the
individual reciprocity schedules. Consequently one has no choice but to check a particular
country's Reciprocity Schedule whenever you are sending a client to a particular consular post.

I still try to check for new Change Transmittals (formerly called Transmittal Letters)
amending what remains of volume 9 of the FAM at http://www.state.gov/m/a/dir/regs/cts/c23516.htm
(Appendix 4). Unfortunately it has not been updated since August 2007. There have been 81
Change Transmittals changing sections of the Foreign Affairs Manual since then. (Appendix 5).
I will continue to search for FAM updates and post them to my web site until the State
Department gets their act together. http://ejflynnlaw.com.

3
 If you wait for whatever service you use for an update who is to guarantee they will have
the updates? Sed quis custodiet ipsos custodes? Checking for FAM updates is also important as
neither AILA, ILW.COM (see infra) nor Benders (see infra) post 9 FAM updates on a regular
basis. In fact AILALink is missing many of these update. As I write this AILALink which has
been update through September 8, 2008 does not contain 9 FAM Appendix L which was added
by Change Transmittal 922 on January 8, 2008. Does your service contain 9 FAM Appendix L?

I often check for new Public Laws on a daily basis at

http://www.access.gpo.gov/nara/publaw/110publ.html (Appendix 6), but it is usually because I am
waiting for them to post a new law that the president has recently signed. The site is fairly slow
in posting the new laws, but when they are posted, they are in the same Statutes at Large format
as when they appear in the USCCAN. These copies I save as the permanent version for my
library.

My final daily visits are to the Circuit Courts of Appeals, first for the Fifth Circuit
http://www.ca5.uscourts.gov/Opinions.aspx (Appendix 7) and then for the Ninth Circuit.
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/opinions%20by%20date?OpenView&Start=1&Count=100&Expa
nd=1.1#1.1 (Appendix 8). Although we are in the Fifth Circuit, the Ninth Circuit often has, shall
we say, more interesting opinions. I rely on Dan Kowalski and Bender’s for the cases from the
other circuits.

I also stop by the Immigration Law Library of the Office of the Administrative Law
Judges (OALJ) at the Department of Labor. http://www.oalj.dol.gov/LIBINA.HTM (Appendix 8).
Putting in “2008” and “PER” in the boxes on the left, and then clicking “go” and I get all the
BALCA PERM Labor Certification cases for 2008. Leave out the 2008 and you get all PERM
cases. Clicking on decision date and they are put in date order. Knowing when last I checked
the site I can review the new cases long before any service can get them to me.

There are many types decisions at the OALJ website including cases involving alien crew
members and longshore activities, registered nurses, prevailing wage determinations, labor
condition application enforcement actions, temporary labor certification, agricultural workers
and permanent alien labor certification.

For a complete list of the cases available visit the OALJ web site or see Appendix A to
my Labor Certification paper in the binder for this conference.

Weekly or Monthly Review

Some websites are important but are not updated on a daily basis. Among them is the
website of the Texas Chapter of AILA http://www.ailatexas.org/ (Appendix 10). Again, one must be
a member of AILA to visit this site. The site contains local liaison minutes and other items not
available anywhere else.

4
 We all need the Visa Bulletin and despite the fact that I receive it via e-mail, AILA posts
it to InfoNet, ILW.COM and Bender’s link to it when a new one is posted, I still check the State
Department site starting around the 8th of the month by going to
http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html and clicking on “current bulletin.” If the
bulletin is late, I sometimes check http://www.shusterman.com/vb.html, which somehow gets it first.

Final check

To check to make sure I obtained everything new that day, I receive a daily e-mail from
ILW.COM and RSS Feeds from Bender’s. ILW.COM's daily newsletter also contains letters to
the editor and original articles both scholarly and opinion. See infra for subscription information.

Free E-mail subscriptions

To obtain a subscription to the Board of Immigration Appeals decision notification, visit

http://www.mailermailer.com/x?oid=05990s and sign up.

To obtain a subscription to the Federal Register daily table of contents, visit

http://listserv.access.gpo.gov, click on the "Online Mailing List Archives," then click on
"FEDREGTOC-L" and finally click on "Join or leave the list" to sign up and join the 25,042
subscribers.

To obtain a subscription to the publications of the Government Accountability Office,

visit http://www.gao.gov, click on “Email Updates” at the bottom of the page and sign up for
“Today's Reports and Testimony.” Today's Reports and Testimony sends a daily e-mail
containing links to all GAO Reports and Testimonies released on that day. You can also obtain
them via an RSS feed. The icon for RSS & ATOM feeds is also on the first page of the website.
You can limit topics you receive but I get them all as there are not that many issued on a given
day. The Reports may be downloaded at no charge from the GAO Reports database.

Visit http://www.ca5.uscourts.gov/OpinSub.aspx to subscribe to all 5th Circuit opinions. Since

July 7, 2003 the 5th Circuit has also made available unpublished opinions. These are listed, but
not attached, to the e-mails they send to subscribers.

ILW.COM sends out an Immigration Daily newsletter with much of the information, but
not all, that I check every day. For me it is a good way to see if I caught everything that day.
You can subscribe by visiting http://ilw.com. Subscription information is right on their main page.
It is a free service.

To be placed on the Department of State's e-mail subscription list for the Visa Bulletin,
simply send an e-mail to listserv@calist.state.gov. In the message body type: Subscribe Visa-

5
Bulletin First name/Last name (example: Subscribe Visa-Bulletin Sally Doe). Unfortunately
they do not as yet offer a RSS feed for the Visa Bulletin. Hopefully they will soon.

AILA members can go to http://www.aila.org/RecentPosting/RecentPostingList.aspx, click on

“Recent Postings Alert” and select how often you want to receive alerts. I have found that
“Instant Notification (Emailed the top of every hour)” is what I want. I then can go to the AILA
site if I see something I want to immediately read, or simply wait until the end of the day to
download all postings.

One of the best e-mail/RSS subscriptions comes from Bender's Immigration Bulletin,
Daily Edition. It gets circuit court opinions quicker, so if that is your interest, it is a must. You
can sign up to receive incessant e-mails from Bender editor Dan Kowalski by going to
http://bibdaily.com/ and going to the “Join Email Update” section tucked away at the bottom of the
third column or get the RSS feed by clicking on those words just below the masthead. An
advantage or disadvantage with the Bender e-mails and RSS feeds is that unlike ILW.COM and
AILA that only send out e-mails on work days, Dan Kowalski never sleeps and Bender updates
come 24/7/365. Now I love that, but I am as nuts as Dan.

You must remember to check the Bender site daily. While AILA keeps four weeks of postings
listed on their “recent postings” page, postings on the Bender site can disappear into never-never
land (also know as their archives) almost daily. . At that point you have to take the extra step of
searching the archives.

RSS Feeds

Now we get to the newest and one of the best ways to obtain updates from websites –
RSS feeds. RSS is said to stand for “Rally Simple Syndication.”

As far as immigration law is concerned, a number of sites now have RSS feeds including,
Bender’s Immigration Bulletin, Daily Edition http://bibdaily.com/, the Immigration Law Professors
blog http://lawprofessors.typepad.com/immigration/, Customs and Border Protection http://www.cbp.gov/,
GAO Reports http://www.gao.gov/ and others. At other sites, such as the Consular affairs site at the
State Department http://travel.state.gov/, you can subscribe to travel warnings and the like, but they
do not as yet offer the service regarding the FAM, Reciprocity Schedules, the Visa Bulletin or
changes on Embassy or Consulate websites but I hope they will in the future.

A key advantage of RSS feeds over e-mail notification is the fact that spam filters often
wreck havoc with mass e-mails preventing you from receiving information you actually want.
For RSS feeds, on the other hand, it is your computer that is reaching out to the website to bring
the updates to you. For those sites from which I still receive both e-mail and RSS notification,
RSS is much faster.

All browsers now have the ability to receive RSS feeds, but they look different in each
one. I prefer to use Opera (available free at http://www.opera.com/). You might prefer Firefox or

6
Microsoft’s Internet Explorer. If you use Firefox you will need a plug-in called Sage. Firefox is
available free at http://www.mozilla.com/en-US/firefox/ and the plug-in can be found at
https://addons.mozilla.org/en-US/firefox/addon/77.

RSS is the wave of the near future and a vital tool in your CLE arsenal.

Conclusion

Remember that URLs often change. You may at times find you are lost in cyberspace.
Using the web often will keep your electronic research system up-to-date.

To make it easier to copy the URLs listed in this article I will send you, upon request, an
electronic version of this article via e-mail. Simply send me an e-mail at ejflynnlaw@gmail.com and
I will respond with a copy of this article.

Also, if you ever find a URL listed in this paper has changed and you can’t find the new
one send me an e-mail and I’ll see what I can do.

7
 APPENDIX 1

Expand Your Company’s Global Influence

The American Immigration Law Foundation’s Exchange Visitor Program can help
expand your company’s influence in the global sector through international
interns and trainees. Visit the AILF website for eligibility requirements, fees,
and FAQs.

Just Posted

USCIS Update and FAQs on the Addition of Form N-400 to the Direct Mail Program

GAO Report on DHS Visa Waiver Program Expansion

Hurricane Ike Assistance Needed by Texas AILA Members!

Sign Up for NBC and National Records Center Tour, Fri., Nov. 7.

BIA Addresses Meaning of “to Reside Permanently” Under Former Section 321(a) of the INA

Additional Recent Postings

Missed an AILA Conference or Seminar?

Or just want to listen at your own convenience? Session recordings from AILA's in-person CLE
conferences are available for purchase, including the Annual Conference. You can also purchase and
download past AILA audio and web seminars to your own computer. Downloads are generally available
for purchase within 48 to 72 hours after the seminar.

Notarios and UPL

The AILA UPL Message Board is dedicated to discussing the problems and solutions to
the unauthorized practice of immigration law. Share your stories and your outrage,
then help take steps to eradicate UPL and the harm it can cause to immigrants.

Information Overload? You're in Control!

If you're not signed up for the Recent Postings Alert, you don't know what you're
missing. Use the type and topics filters to control what kinds of postings are sent direct
to your Inbox. Receive only those that are relevant to your practice, and exclude the
ones that aren't.

Read about the Latest in Mandamus Litigation and Challenges to

State and Local Laws!

Stay current on immigration litigation by reading AILF’s Litigation Clearinghouse Issue Pages. Find out
the latest developments in mandamus litigation, challenges to state and local laws, naturalization delay

8
 APPENDIX 2

Volume 24

(ID 3620)

Matter of NWOZUZU, 24 I&N Dec. 609 (BIA 2008)

To obtain derivative citizenship under former section 321(a) of the Immigration and Nationality Act, 8 U.S.C. § 1432(a) (1994), an alien
must acquire the status of an alien lawfully admitted for permanent residence while he or she is under the age of 18 years.

(ID 3620)

Matter of SAYSANA, 24 I&N Dec. 602 (BIA 2008)

(1) The language of section 236(c)(1) of the Immigration and Nationality Act, 8 U.S.C.§ 1226(c)(1) (2006), does not support limiting the
non-DHS custodial setting solely to criminal custody tied to the basis for detention under that section.

(2) The respondent is subject to mandatory detention following his release from non-DHS custody resulting from his 2005 arrest for failure to
register as a sex offender, even though that arrest did not lead to a conviction.

(ID 3619)

Matter of RAMIREZ-VARGAS, 24 I&N Dec. 599 (BIA 2008)

A parent’s period of residence in the United States cannot be imputed to a child for purposes of calculating the 7 years of continuous
residence required to establish eligibility for cancellation of removal under section 240A(a)(2) of the Immigration and Nationality Act, 8 U.S.C.
§ 1229b(a)(2) (2006).

(ID 3618)

Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008)

(1) The respondent, a young Honduran male, failed to establish that he was a member of a particular social group of “persons resistant to
gang membership,” as the evidence failed to establish that members of Honduran society, or even gang members themselves, would
perceive those opposed to gang membership as members of a social group.

(2) Because membership in a criminal gang cannot constitute membership in a particular social group, the respondent could not establish that
he was a member of a particular social group of “young persons who are perceived to be affiliated with gangs” based on the incorrect
perception by others that he is such a gang member.

(ID 3617)

Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008)

Neither Salvadoran youth who have been subjected to recruitment efforts by the MS-13 gang and who have rejected or resisted membership
in the gang based on their own personal, moral, and religious opposition to the gang’s values and activities nor the family members of such
Salvadoran youth constitute a “particular social group.”

(ID 3616)

Matter of ROTIMI, 24 I&N Dec. 567 (BIA 2008)

An alien has not “lawfully resided” in the United States for purposes of qualifying for a waiver of inadmissibility under section 212(h) of the
Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2006), during any periods in which the alien was an applicant for asylum or for
adjustment of status and lacked any other basis on which to claim lawful residence.

(ID 3615)

EAC, INC., 24 I&N Dec. 563 (BIA 2008) (Accreditation)

(1) All accredited representatives on the staff of a recognized organization must have a broad knowledge of immigration law and procedure,
even if the organization only intends to provide limited services through one or more partially accredited representatives.

9
 APPENDIX 3

Federal Register
Online via GPO Access
Contents Pages: 2008

Monday, September 15, 2008

Friday, September 12, 2008
Thursday, September 11, 2008
Wednesday, September 10, 2008
Tuesday, September 9, 2008
Monday, September 8, 2008
Friday, September 5, 2008
Thursday, September 4, 2008
Wednesday, September 3, 2008
Tuesday, September 2, 2008
Friday, August 29, 2008
Thursday, August 28, 2008
Wednesday, August 27, 2008
Tuesday, August 26, 2008
Monday, August 25, 2008
Friday, August 22, 2008
Thursday, August 21, 2008
Wednesday, August 20, 2008
Tuesday, August 19, 2008
Monday, August 18, 2008
Friday, August 15, 2008
Thursday, August 14, 2008
Wednesday, August 13, 2008
Tuesday, August 12, 2008
Monday, August 11, 2008
Friday, August 8, 2008
Thursday, August 7, 2008
Wednesday, August 6, 2008
Tuesday, August 5, 2008
Monday, August 4, 2008
Friday, August 1, 2008
Thursday, July 31, 2008
Wednesday, July 30, 2008
Tuesday, July 29, 2008
Monday, July 28, 2008
Friday, July 25, 2008
Thursday, July 24, 2008
Wednesday, July 23, 2008
Tuesday, July 22, 2008
Monday, July 21, 2008
Friday, July 18, 2008
Thursday, July 17, 2008

10
 APPENDIX 4

Bureau of Administration

Office of Directives 9 FAM

Management

Regulations
-- VISA-903 (08-22-2007) 41.59 Procedural Notes [ 51 Kb]
Change Transmittal Letters -- VISA-902 (08-17-2007) Appendix D 200 [ 62 Kb]
9 FAM -- VISA-901 (08-17-2007) 41.81 Procedural Notes [ 62 Kb]

What's New | Frequent Questions | Contact Us | Email this Page | Subject Index | Search
The Office of Electronic Information, Bureau of Public Affairs, manages this site as a portal for information from the U.S. State Department. External links to
other Internet sites should not be construed as an endorsement of the views or privacy policies contained therein.
About state.gov | Privacy Notice | FOIA | Copyright Information | Other U.S. Government Information

11
 APPENDIX 5

The amendments to 9 FAM we have discovered are as follows:

CT-904 (8-31-07) Amending 42.32(c) Notes

CT-905 (9-18-07) Amending 40.11 Notes
CT-906 (9-19-07) Amending 42.31(d)(2) Notes
CT-907 (10-11-07) Amending 41.21 Notes
CT-908 (10-18-07) Amending 41.49 Notes
CT-909 (10-23-07) Amending 41.21 Notes
CT-910 (10-23-07) Amending 42.33 Notes
CT-911 (11-02-07) Amending 40.41 Notes
CT-912 (11-15-07) Amending 40.202 Notes
CT-913 (11-20-07) Amending 40.26 Notes
CT-914 (11-26-07) Amending 42.65 Notes
CT-915 (11-27-07) Amending Appendix K 500
CT-916 (11-27-07) Amending 40.11 Notes
CT-917 (11-29-07) Amending 41.21 Notes
CT-918 (12-4-07) Amending 42.21 Notes
CT-919 (12-12-07) Amending 41.112 Notes
CT-920 [unknown]
CT-921 (1-2-08) Amending 42.53 Notes
CT-922 (1-10-08) Adding Appendix L 100, L 200 and L 300
CT-923 (1-10-08) Amending 40.6 Notes
CT-924 (1-14-08) Amending 40.34 Notes
CT-925 (1-22-08) Amending 40.3 Notes
CT-926 [unknown]
CT-927 [unknown]
CT-928 [unknown]
CT-929 (2-28-08) Amending 40.41 Exhibit I
CT-930 (2-21-08) Amending 41.53 Notes and 41.53 Procedural Notes
CT-931 (3-10-08) Amending 42.63 Procedural Notes
CT-932 (3-10-08) Amending 41.21 Notes
CT-933 (3-14-08) Amending 42.32(d)(2) Procedural Notes
CT-934 (3-14-08) Amending 42.65 Notes
CT-935 (3-18-08) Amending 40.4 R, 40.34 R,40.21(b) R and 40.28 R
CT-936 (03-18-2008) Amending Appendix F 600
CT-937 (03-20-2008) Amending 42.66 Procedural Notes
CT-938 [unknown]
CT-939 (03-21-2008) Amending 40.34 Notes
CT-940 (03-24-2008) Amending 41.31 Notes
CT-941 (03-25-2008) Amending 41.113 Procedural Notes
CT-942 (03-27-2008) Amending 41.24 Exhibit II
CT-943 (03-28-2008) Amending 42.83 Procedural Notes
CT-944 [unknown]
CT-945 (04-10-08) Adding 42.63 Exhibit I
CT-946 (04-11-08) Amending 42.21 Notes
CT-947 (04-17-08) Amending 41.12 Regulations
CT-948 [unknown]
CT-949 (04-29-08) Amending 40.201 Regulations, 40.205 Regulation, 40.206 Regulation, 40.207
Regulation, 40.208 Regulations, 40.209 Regulations
CT:950 (05-02-2008) Amending 40.32 Regulations, 40.66 Regulations, 40.68 Regulations, 40.71
Regulation, 40.82 Regulations, 40.93 Regulation, 40.101 Regulation, 40.102 Regulations

12
 APPENDIX 5

CT:951 (05-02-2008) Amending 40.31 Exhibit II

CT:952 (05-08-2008) 42.11 Regulations
CT:953 (05-08-2008) 42.72 Regulations
CT:954 [unknown]
CT:955 (05-12-08) adding 42.21 Exhibits VIII and IX
CT:956 (05-12-08) Amending Appendix K Exhibits I, II and IV
CT:957 [unknown]
CT:958 (05-14-2008) Amending 41.58 Notes
CT:959 (05-22-2008) Amending Appendix E 300
CT:960 (05-22-2008 Amending 42.1, 42.2, 42.12, 42.21, 42.32(b), 42.32(c) and 42.66
Regulations
CT:961 (05-23-2008) Amending 42.11, 42.32(d)(1), 42.32(d)(2), 42.32(d)(3), 42.32(d)(4) and
42.32(d)(5) Regulations, 40.32 Exhibit I
CT:962 (05-23-2008) Amending 42.33, 42.51, 42.63, 42.64, 42.83 Regulations, 42.73 Exhibit I,
42.73 Exhibit IV, 42.81 Exhibit I
CT:963 (06-06-2008) Amending 42.32(d)(10) Regulations and Notes
CT:964 (06-06-2008) Amending 42.81 Notes
CT:965 (06-09-2008) Amending 42.23, 42.31 Regulations, 42.1 Exhibit I and 42.21 Exhibit II
CT:966 (06/10/08) Amending 41.81 Notes
CT:967 (06-11-2008) Amending 40.25, 40.26, 40.27, 40.28, 40.31, 40.32, 40.33, 40.34, 40.35(b),
40.36, 40.35(a), 40.41, 40.51, 40.52, 40.53, 40.61, 40.62, 40.63, 40.64, 40.65 and 40.66
Regulations
CT:968 (06-11-2008) Amending 42.43 Procedural Notes
CT:969 (06/12/08) Amending 41.51 Notes
CT:970 (06-12-2008) Amending 41.59, 41.61, 41.62 , 41.71, 41.81, 41.82, 41.83, 41.84, 41.85.
CT:971 (06-12-2008) Amending 40.37 Notes
CT:972 (06-12-2008) Amending 42.32, 42.32(d), 42.32(d)(7) and 42.52 Regulations
CT:973 (06-12-2008) Amending 40.2, 40.3, 40.4, 41.101, 41.102, 41.107, 41.108, 41,112 and
41.113 Regulations,
CT:974 (06-18-2008) Amending 42.32(d)(10) Notes and adding 42.32(d)(11) Regulations and
Notes
CT:975 06-19-2008) Amending 41.102 Notes.
CT:976 (06-25-2008) Amending 42.82, Exhibit I.
CT:977 (06-25-2008) Amending 41.102 Regulations.
CT:978 (06-27-2008) Amending 40.103, 40.104, 40.105 Regulations
CT:979 (07-11-2008) Amending 42.21 EXHIBIT III, 42.21 EXHIBIT V, 42.41 EXHIBIT I,
42.53 EXHIBIT I and 42.53 EXHIBIT II
CT:980 (07-16-2008) Amending 42.55 Regulations, 40.11 EXHIBIT I and 40.103 EXHIBIT I.
CT:981 (07-22-2008) Amending 41.2 EXHIBIT I and 41.51 EXHIBIT II.
CT:982 (07-24-2008) Amending 41.81 Regulations.
CT:983 [(07-25-2008) Amending 40.6, 40.9 and 40.7 Regulations.
CT:984 [unknown]
CT:985 (07-29-2008) Amending 42.32(d)(8), 42.32(e), 42.41 , 42.43, 42.53, 42.54, 42.71
Regulations.
CT:986 (07-31-2008) Amending 42.71 Notes 42.62, 42.65, 42.67, 42.72, 42.73, 42.82
Regulations.
CT:987 (07-31-2008) Amending 41.62 Notes.
CT:988 (08-04-2008) Amending 41.32 Notes.

13
 APPENDIX 6

Site Search:
advanced

Home Page > Executive Branch > Public and Private Laws > Browse > 110th Congress

Authenticated Public and Private Laws: Browse 110th Congress

The following catalog lists Public and Private Laws currently available in electronic format for the
110th Congress. GPO Access continues to add Public and Private Laws irregularly as they become
available during each session of Congress. If you do not see the Public and Private Law you are
looking for within these catalogs, it is not contained in the GPO Access database.
• Public and Private
Beginning with the 110th Congress, the Public and Private Laws on GPO Access have been
Laws Main Page
digitally signed and certified. GPO has signed and certified the PDF files to assure users that the
• Search online documents are official and authentic. More on GPO’s Authentication Initiative.
• Browse
The digitally signed PDF files should be viewed using Adobe Acrobat or Reader version 7.0 or 8.0.
• Search Tips Download the most recent version of Adobe Acrobat Reader.
• Side Notes
Pub.L. 110-001 . To redesignate the White Rocks National Recreation Area in the State of Vermont as
• About Public and the ``Robert T. Stafford White Rocks National Recreation Area''. NOTE: Jan. 17, 2007 - [S. 159]
Private Laws TEXT PDF
Pub.L. 110-002 . To revise the composition of the House of Representatives Page Board to equalize
the number of members representing the majority and minority parties and to include a member
representing the parents of pages and a member representing former pages, and for other purposes.
• Congressional Bills NOTE: Feb. 2, 2007 - [H.R. 475]
• History of Bills TEXT PDF
• United States Code Pub.L. 110-003 . To provide a new effective date for the applicability of certain provisions of law to
Public Law 105-331. NOTE: Feb. 8, 2007 - [H.R. 188]
• All NARA Publications TEXT PDF
Pub.L. 110-004 . To provide for an additional temporary extension of programs under the Small
Business Act and the Small Business Investment Act of 1958 through July 31, 2007, and for other
purposes. NOTE: Feb. 15, 2007 - [H.R. 434]
Ben's Guide TEXT PDF
to U.S. Pub.L. 110-005 . Making further continuing appropriations for the fiscal year 2007, and for other
Government purposes. NOTE: Feb. 15, 2007 - [H.J. Res. 20]
TEXT PDF
Pub.L. 110-006 . To amend the Antitrust Modernization Commission Act of 2002, to extend the term of
the Antitrust Modernization Commission and to make a technical correction. NOTE: Feb. 26, 2007 -
[H.R. 742]
TEXT PDF
Pub.L. 110-007 . To designate the facility of the United States Postal Service located at 1300 North
Frontage Road West in Vail, Colorado, as the ``Gerald R. Ford, Jr. Post Office Building''. NOTE: Mar.
7, 2007 - [H.R. 49]
TEXT PDF
Pub.L. 110-008 . To designate the facility of the United States Postal Service located at 152 North 5th
Street in Laramie, Wyoming, as the ``Gale W. McGee Post Office''. NOTE: Mar. 7, 2007 - [H.R. 335]
TEXT PDF
Pub.L. 110-009 . To designate the facility of the United States Postal Service located at 1700 Main
Street in Little Rock, Arkansas, as the ``Scipio A. Jones Post Office Building''. NOTE: Mar. 7, 2007 -
[H.R. 433]
TEXT PDF
Pub.L. 110-010 To designate the facility of the United States Postal Service located at 16150 Aviation
Loop Drive in Brooksville, Florida, as the ``Sergeant Lea Robert Mills Brooksville Aviation Branch Post
Office''. NOTE: Mar. 7, 2007 - [H.R. 514]
TEXT PDF
Pub.L. 110-011 . To designate the facility of the United States Postal Service located at 3903 South
Congress Avenue in Austin, Texas, as the ``Sergeant Henry Ybarra III Post Office Building''. NOTE:
Mar. 7, 2007 - [H.R. 577]
TEXT PDF
Pub.L. 110-012 . To designate the facility of the United States Postal Service located at 2633 11th

14
 APPENDIX 7

Clerk's Office
Home Opinions Page
Address & Phone Numbers
Court Calendars
Docket Information
This site contains opinions (both published and unpublished) released from 1992 to the present. If
Fees you are unable to locate an older opinion on our website please contact the Clerk's Office at
Fed. R. App. P. Clerk's_Office at ca5.uscourts.gov or call (504) 310-7700.
Judicial Misconduct Rules
Practitioner's Guide
Other Documents Latest Opinions Released or Updated
Opinions Released in the Last 7 Days
Opinions
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Keyword Search Search for opinions where:
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Download Opinions Last updated between: and/or Docket number and/or Title contains text:
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Attorney Information
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(Instructions)
Application and Oath for Admission Opinions
(Instructions)
CJA Vouchers Published Unpublished
Event Notification Registration
Docket Last Updated Title Docket Last Updated Title
Membership Renewal
Anders Checklist Plasai vs.
07-11282 9/15/2008
Mineta
Library Johnson vs.
07-40825 9/15/2008
Library Home Scheibe
Pattern Jury Instructions USA vs.
Visitor's Guide to the Courthouse 07-51003 9/15/2008
Reyna
Mehmood
Other 07-60747 9/15/2008
vs. Mukasey
Appellate Conference Attorney
Judicial Council Prieto vs.
07-70001 9/15/2008
Other 5th Circuit Links Quarterman
Judges' Biographies
Vacancies
Judges' Seminars Disclosure

15
 APPENDIX 8

Opinions appear on this site by 10:00 a.m. P.S.T on the day of release.

Opinions by Date

Opinions by date
Date Filed Case No. Key Type Case Name
Opinions by number
Opinions Today 2008
September
09/15/08 03-55166 o F CHAMBER OF COMMERCE OF
THE U.S. V LOCKYER
09/15/08 04-75643 A COSA V. MUKASEY
09/15/08 07-35468 H MOSES V. PAYNE
09/15/08 05-75844 A BROMFIELD V. MUKASEY
09/15/08 06-10073 C USA V. DRAKE
09/15/08 04-56721 oop D PESNELL V. ARSENAULT, ET
AL.
09/12/08 07-35545 D FAIRBANKS NORTH STAR V.
U.S. ARMY
09/12/08 07-55528 F WHITE V. MAYFLOWER
TRANSIT
09/11/08 06-17252 A HASSAN V. CHERTOFF
09/11/08 07-35000 ebo D THE LANDS COUNCIL V
MCNAIR
09/11/08 05-36005 F DUMONTIER V.
SCHLUMBERGER
TECHNOLOGY
09/11/08 05-56076 F SPRINT TELEPHONY PCS V.
COUNTY OF SAN DIEGO
09/10/08 06-16563 F MCDONALD V COLDWELL
BANKER
09/10/08 06-50521 C USA V WAKNINE
09/10/08 05-75157 A ALVAREZ FIGUEROA V
MUKASEY
09/10/08 07-10174 C USA V LOPEZ-MARTINEZ
09/10/08 06-71944 A FALL RIVER RURAL V FERC
09/10/08 06-16864 D EEOC V FEDEX CORP
09/09/08 04-35876 o R TRUTH V. KENT SCHOOL
DISTRICT
OTHER DCN LINKS:
OCE 09/09/08 06-72797 oa A ORTIZ-MAGANA V. MUKASEY
NineOnLine 09/09/08 05-99001 H EDWARDS V. BROWN
MAGnet 09/09/08 07-16853 o H CHAFFER V. PROSPER
DEBTnet
09/09/08 06-35511 F SOUTH FERRY LP V.
USCA9 Library
KILLINGER

16
 APPENDIX 9

U.S. Department of Labor

Office of Administrative Law Judges

www.oalj.dol.gov [skip navi gati onal l i nks] Search | A-Z Index

Find It! in DOL | e-Judication | About Us | Offices/Contacts

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Peyser Act of 1933, as amended, 29 U.S.C. 49 et seq.; 38 U.S.C.
Chapters 41 and 42; 20 CFR Part 658
JSW Decisions
Appeals of prevailing wage determinations made by the ETA at the
request of the Wage and Hour Division pursuant to 20 C.F.R.
§655.731(d) during the course of an investigation into an
employer's H-1B Labor Condition Application (LCA). These appeals
reference the procedures used in Job Service Complaint System
hearings.
LCA Decisions
Decisions involving labor condition applications and requirements for
employers using aliens on H-1B visas in specialty occupations; 8
U.S.C. 1101(a)(15)(H)(i)(b), 1182(n); 20 C.F.R. Part 655,
Subparts H and I
TAE Decisions
Decisions involving temporary alien employment arising under the
Immigration & Nationality Act, 8 USC 1101(a)(15)(H)(ii)(a);
1188(c) (H-2A and H-2B visas - ESA enforcement actions) [29 CFR
Part 501]
TLC Decisions
Decisions involving temporary labor certification arising under 8 USC
1101(a)(15)(H)(ii)(a); 1188(c) (H-2A and H-2B visas - ETA
actions) [20 CFR Part 655, Subparts B and C]
For decisions involving the Migrant and Seasonal Agricultural Workers
Protection Act ("MSP"), see the Miscellaneous Traditional caselist.

17
 APPENDIX 10

Welcome
Home
How to Join American Immigration Lawyers Association -
Officers & Liaisons Texas Chapter
Section News & Events Founded in 1946, the American Immigration
Chapter Bylaws & Lawyers Association (AILA) is a national bar
Minutes association of attorneys who practice and teach
Conferences immigration law. AILA Member attorneys represent
tens of thousands of U.S. businesses and industries,
New Member Division
foreign students, entertainers, athletes, and asylum
Member Directory seekers, often on a pro bono basis. AILA is an
Member Recognition Affiliated Organization of the American Bar
Association.
Miscellaneous
Search The Texas, Oklahoma and New Mexico Chapter has
approximately 800 members. It sponsors two
conferences a year in the Fall and Spring. These
conferences provide Continuing Legal Education
Members Login credits and present distinguished speakers from the
User ID private bar and government officials, who are
Password experts in Immigration and Nationality law.
Communication with members is encouraged
through the web site & e-mail list-serves.

(NOTE: The User ID and Password for this site

are NOT the same as the AILA InfoNet. Click
here if your are an AILA member and need the
Login Information for this site.)

Membership Benefits
Join the Texas Chapter and get access to local
information that is gathered by an extensive
network of liaisons with CIS, CBP, ICE and EOIR
offices in each district or field office within Texas,
Oklahoma and New Mexico. Our sections include
Dallas, El Paso, Harlingen, Houston, San Antonio,
Oklahoma City, and Albuquerque. We also liaison
with the Texas WorkForce Commission. For only $75
any out of state or country AILA member can join.
Need to file one case in San Antonio? The chapter
membership fee will let you see every report in our
library. allow you to receive up to date filing
information, procedures and reports via email from
all the Texas chapter liaisons.

How to Join
Further information about becoming an AILA
member can be obtained at AILA Infonet/Join AILA:
http://www.aila.org/content
/default.aspx?docid=12627

18
 _________________________________
_________________________________
How to Use the Web _________________________________
To Practice Immigration _________________________________
Law _________________________________
_________________________________
San Antonio, Texas
October 24, 2008 _________________________________
_________________________________
_________________________________
_________________________________

_________________________________
_________________________________
_________________________________
_________________________________

WHY? _________________________________
_________________________________
_________________________________
_________________________________
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Reasons NOT to Search the Web
„ Your malpractice carrier will hire me as an
expert witness and I need the money.
„ You are tired of being a licensed attorney.
„ You really don’t care if your client is deported.
„ You trust the government to give you a break
when you screw up.
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
 _________________________________
REASONS TO SEARCH THE WEB _________________________________
_________________________________
„ Nothing out there will tell you _________________________________
everything. _________________________________
„ It’s your license!
_________________________________
„ Duty to Client.
_________________________________
„ Duty to the Court.
_________________________________
_________________________________
_________________________________
_________________________________
Why Download and Save? _________________________________
_________________________________
„ You cannot trust the government to always
have everything online when you need it. _________________________________
„ That is like relying on a library to have a book _________________________________
you need when you need it.
_________________________________
„ Most of what you need is free.
„ One more time: IT’S FREE! _________________________________
_________________________________
_________________________________
_________________________________
_________________________________
Establish A System _________________________________

„ What works for you.

„ Use Bookmarks/Favorites to remind you to
check websites.
„ Leave the pages open in your browser.
„ Use RSS feeds where available.
„ Use emails.
„ Use a combination.
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________

When?
„ My Daily method
„ Some mornings.
„ Some evenings.
„ Some throughout the day.
„ Some only when I get around to it.
„ Whatever works for you.
Now that we have your attention
Here is Carl Shusterman to tell you how to
keep your law license!
_________________________________
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_________________________________
_________________________________
_________________________________
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 The University of Texas School of Law

Presented:
2008 Immigration Law Conference

October 23-24, 2008

San Antonio, Texas

Using the Web to Practice Immigration Law

And Enhance Your Practice

Carl Shusterman

Continuing Legal Education • 512-475-6700 • www.utcle.org

 Using the Web to
Practice Immigration Law
And Enhance Your Practice

by Carl Shusterman*

The World Wide Web is a boon to immigration attorneys. Both beginners and
experienced practitioners can find a huge amount of free information on the web which
used to be available only in expensive books and CDs which were updated quarterly or
annually.

GOVERNMENT WEB SITES

The major governmental departments and agencies which are involved in the
immigration process all have web sites. These include the major players – the CIS, the
State Department, the Labor Department and the EOIR. The Federal Courts also have
their own web sites. So do various state programs including the State Workforce
Agencies and the Conrad 30 State Programs (for J waivers for physicians).

The following is a list of the major government web sites which are of value to
immigration attorneys, and some of the resources available on each of these sites:

1. Citizenship and Immigration Service

http://www.uscis.gov

The most comprehensive of all immigration web sites, the CIS site contains the following
information:

• FORMS - Approximately 100 immigration and naturalization forms, many of

which are “fillable” online. Forms are organized by letter and number.
Included is the name of each form, its purpose, number of pages, where to file
it, the filing fee and the date of the latest edition.
• CHECKING THE STATUS OF YOUR CASE ONLINE – At Service Centers
• PROCESSING TIMES – At Service Centers, District Offices and Sub-Offices
• SERVICES & BENEFITS – Contains sections on the Civil Surgeon Locator,
E-Mail Updates, National Customer Service Center, Emergency Travel,
Naturalization, Citizenship, Lawful Permanent Residency, Temporary
Visitors, Employer Information, Adoptions, TPS, Asylum and Humanitarian
Parole.
• FIELD OFFICE ADDRESSES & INFORMATION – Includes a U.S. &
World Map, an Alphabetical Index, ASC Map & List, Detention Facilities,
Border Patrol Map & List of Sectors, and List of Overseas CIS Offices.

1
 • LAWS, REGULATIONS & GUIDES – Sections include Immigration Laws,
Regulations, Operation Instructions, Interpretations, Administrative
Decisions, Federal Register, Handbooks, Manuals, Policy Guidance and Press
Releases.
• PUBLIC AFFAIRS – Public Information and USCIS Today.
• LINKS TO OTHER GOVERNMENT WEB SITES

Formerly, the CIS web site had nice graphics, a text-only site, a good search
engine, a site map, a list of over 100 alphabetically arranged “How Do I…?”, a
glossary, a feedback section and printer-friendly versions of its pages. About a
year ago, the CIS web site underwent an extreme make-over, and as a result, the
quality of the site has suffered.

2. The Department of State

http://state.gov

Bureau of Consular Affairs

http://travel.state.gov/

The State Department web site contains a wealth of useful information:

• Bureau of Consular Affairs – Organizational Directory, List of Officials and

their contact information
• Foreign Affairs Manual
• Visa Bulletin
• Information on Immigrant & Nonimmigrant Visas
• National Visa Center
• Visa Reciprocity & Country Documents Finder
• Annual Human Rights Reports
• Passport Information
• Visa Policy Telegrams
• Links to web sites of U.S. Embassies and Consulates
• Key Officers of American Foreign Service Posts
• Instructions for the DV Lottery
• J Exchange Visitor Program which includes a page which allows applicants to
ascertain the status of their waiver applications
• FOIA

2
3. The Department of Labor

http://www.dol.gov

Employment Training Administration

http://www.doleta.gov

The DOL web site contains the following information:

• Processing Times
• Hiring Foreign Workers: Permanent, H-1B, H-1C, H-2A, H-2B and D-1
• Forms & Instructions
• LCA Online System
• LCA Enforcement
• BALCA Decisions
• O*Net including Crosswalk
• Occupational Outlook Handbook
• PERM FAQ’s
• Prevailing Wage Information and Surveys
• Links to State Workforce Agencies

The DOL web site also contains almost 50 immigration-related FAQs and a search
engine.

4. Executive Office for Immigration Review

http://www.usdoj.gov/eoir

The EOIR homepage links to the following resources:

• What’s New at EOIR – This section concurrently includes (1) the text of all
precedent decisions from October 1996 to present, and (2) a list of attorneys
who the EOIR has taken disciplinary action against.
• Immigration Court Practice Manual
• Background Information
• Organizational Breakdown & Information
• Pro Bono Program
• Immigration Courts Nationwide – includes FAQs, Legal Aid Lists, and Local
Operating Procedures for Immigration Courts around the U.S.
• Statistics and Publications
• Contact Information
• Responsibilities

3
 • News, Information & FOIA
• EOIR Forms
• Virtual Law Library – contains the excellent BIA Practice Manual and
Precedent Decisions (in PDF Format) dating back to September 1976.
• Employment Opportunities

The EOIR web site contains links to the Board of Immigration Appeals (BIA), the Office
of the Chief Immigration Judge (OCIJ) and to the Office of the Chief Administrative
Hearing Officer (OCAHO). Public Information is listed both by subject and
chronologically.

The web site tends to be rather rudimentary. With no search engine or site map, it can be
difficult to find the information that you need.

5. Federal Courts

http://www.uscourts.gov/

This site links to the web sites of the Supreme Court of the United States, all federal
Courts of Appeals, and District Courts. The complete text of all federal court decisions
and court rules appear on these sites.

https://pacer.login.uscourts.gov/cgi-bin/login.pl

PACER is short for the Public Access to Court Electronic Records system. It is an
electronic public access service that allows users to obtain case and docket information
from Federal Appellate, District and Bankruptcy courts, and from the U.S. Party/Case
Index.

6. Other Government Sites

Among the government agencies whose sites relate to immigration law are the following:

* General Accountability Office – Congressional Investigative Agency

http://www.gao.gov

* Justice Department

http://www.usdoj.gov

4
* Legislative Information – Legislation, Congressional Record, Committee Information,
Senate, House of Representatives, GPO

http://thomas.loc.gov/

* Office of Special Counsel – For unfair immigration-related employment practices

http://www.usdoj.gov/crt/osc/

* Social Security Administration – Social Security Online

http://www.ssa.gov/immigration

* The White House

http://www.whitehouse.gov/

PRIVATE WEB SITES

Many private organizations maintain web sites maintain web sites which contain
information which may be of interest to private immigration practitioners. We list some
of these sites below. This list is not meant to be comprehensive.

1) About.com (Immigration)

http://immigration.about.com

2) American Immigration Lawyers Association (AILA)

http://www.aila.org

3) American Immigration Law Foundation (AILF)

http://www.ailf.org

4) American Civil Liberties Union (ACLU) – Immigrant Rights

http://www.aclu.org/issues/immigrant/hmir.html

5) Amnesty International USA

http://www.amnesty-usa.org/

5
 6) Benders Immigration Bulletin

http://bibdaily.com/index.cgi

7) Findlaw

http://findlaw.com

Author’s note: For a more extensive list of private immigration-related web sites, see

http://shusterman.com/immorgs.html

and

http://shusterman.com/toc-asyl.html

Attorney Web Sites

In addition, over 1,000 immigration attorneys maintain web sites. A few of these web
sites are updated frequently, contain significant amounts of immigration-related
information and link to the web sites of government agencies and private organizations.
Some law firm’s web sites offer a variety of free services including e-mail newsletters,
online chats, FAQs, discussion boards, etc. The best of these sites have search engines,
are easy to navigate, and allow you to find information on the sites of government
agencies and private organizations which would otherwise be difficult to locate on your
own.

What follows is a short list of such sites, in alphabetical order:

1) Immigration Lawyers on the Web

http://www.ilw.com

2) Law Offices of Rajiv Khanna

http://www.immigration.com

3) Law Offices of Sheela Murthy

http://www.murthy.com

6
 4) Fragomen

http://www.fdbl.com

5) Law Offices of Carl Shusterman

http://shusterman.com

6) Law Offices of Greg Siskind

http://visalaw.com

Reasons to Have Your Own Web Site

1. Presence on the Internet

The World Wide Web has become a fixture in telecommunications. No attorney would
consider practicing law without business cards, letterhead and a telephone. Now, in the
21st Century, a web site is no longer an option, but is increasingly becoming a necessity.
Several years ago, it was easy to practice law without using e-mails and faxes. Now, it is
all but impossible to do so.

Just as people are relying on the Internet to make plane and hotel reservations, send
greeting cards, get news and other information, they now evaluate and select an
immigration attorney based on information contained on the World Wide Web.

2. Ability to Communicate Internationally

By definition, your clients are from other parts of the world. Your web site is accessible
worldwide in a way that your listing in the local phone book, your article or
advertisement in a local newspaper, and your client newsletter are not.

Moreover, time zones are irrelevant when your have a web site. While a client or a
potential client can not reach you at 4am, and may not wish to wake up in the middle of
the night in order to call you at the office, he may access your web site 24 hours a day, 7
days a week, 365 days a year. This is especially important if your law firm possesses a
database which allows your clients to access their vital immigration information online.

3. Diversification of Client Base

7
What happens if and when the economy in San Antonio, Houston or Dallas heads south?
When hiring slows down, your practice may follow suit. However, establishment of an
effective web presence will allow your practice to diversify, attracting clients in other
states and abroad, and helping to insulate you from local economic conditions.

4. Referrals from Other Attorneys

To the extent that other attorneys frequent your web site, this may result in additional
referrals of clients to you. For example, business, criminal and family attorneys often
need to learn about the immigration law consequences of their actions. When they
receive your newsletter each month, this serves to remind them of you and your expertise
in immigration law. If my client’s friend in Texas is arrested at Sierra Blanca, and needs
a good immigration attorney to defend him, your articles about “Relief from Deportation”
may result in a referral for you.

5. Organizational Tool

A well-organized web site will allow you and your staff to quickly find important
governmental cables and memoranda which will assist in representing your clients. How
often have you said to yourself, “I think that the CIS or the State Department issued a
memo on that issue, but I can’t remember where or when?” A web site with a good
search engine and excellent navigational tools makes it easy to find such information
when you really need it.

CONCLUSION

Unless money is no object and/or you don’t mind driving to a law library on a regular
basis, the Web is a quick and easy (and free!) way to locate laws, regulations, and other
materials to help your clients. Establishing a presence on the Web allows you to add to
this store of information, and helps you and your practice in numerous ways.

* Carl Shusterman has practiced immigration law for over 30 years, both for the INS
(1976-82) and in private practice in Los Angeles. He is a Certified Specialist in
Immigration and Nationality Law, California State Bar. Mr. Shusterman is the
webmaster of http://shusterman.com and the author of SHUSTERMAN’S
IMMIGRATION UPDATE, a monthly e-mail newsletter on immigration law and
procedure.

8
 How to Use the Web
To Practice Immigration Law

University of Texas Law School

San Antonio
October 24, 2008

Law Offices of Carl Shusterman

Immigration Resources
on the Web

• Laws
La s and Regulations
Reg lations
• Check Case Status
• Court & Administrative Decisions
• Government Processing Times
• A
Agency IInterpretations
t t ti

Law Offices of Carl Shusterman

1
Government Web Sites
• Citizenship & Immigration Service
• State Department
• Labor Department
• EOIR
• Federal and State Courts
• Other Agencies

Law Offices of Carl Shusterman

• Processing Times
• Case Status Online
• Forms and Fees
• Di
Directory
t off Field
Fi ld Offices
Offi
• InfoPass
• Press Releases

Law Offices of Carl Shusterman

2
State Department Web Site
 http://state.gov
 Information on IVs and NIVs
 Foreign Affairs Manual
 Visa Bulletin (& Archives)
 Embassies
E b i and d Consulates
C l t
 Human Rights Reports
 Visa Wait Times
Law Offices of Carl Shusterman

Labor Department Web Site

• http://www.dol.gov
http://www dol gov
• PERM FAQs
• Forms and Instructions
• LCA Online
• Prevailing Wage Information
• Occupational Outlook Handbook

Law Offices of Carl Shusterman

3
 EOIR Web Site
• http://www.usdoj.gov/eoir
• BIA Precedent Decisions
• Virtual Law Library
• Directory of Immigration
Courts
• Immigration Court Practice
Manual
Law Offices of Carl Shusterman

Federal Courts

• http://www.uscourts.gov
• Supreme Court
• Courts of Appeals
• District
Di t i t Courts
C t
• PACER
• Audio Files - Oral Arguments
Law Offices of Carl Shusterman

4
 Other Government Sites
• White House – whitehouse.gov
• Dept of Homeland Security – www.dhs.gov
– ICE: www.ice.gov
– CBP: www.cbp.gov
• Department of Justice – www.usdoj.gov
• Health
H lth & HHuman S Services
i – www.hhs.gov
hh
• Legislation – senate.gov & house.gov

Law Offices of Carl Shusterman

Private Organizations (Part I)

• AILA
www.aila.org
• AILF
www.ailf.org
• ACLU – Immigrants Rights
www.aclu.org/ImmigrantsRigh
ts/ImmigrantsRightsMain.cfm

Law Offices of Carl Shusterman

5
Private Organizations (Part II)
 Findlaw
immigration.findlaw.com
 National Immigration Forum
immigrationforum.org
 Amnesty International USA
amnestyusa.org

Law Offices of Carl Shusterman

Private Law Firms

Immigration Resources
• Links to Government Sites
• Government Processing Times
• Free E-Mail Newsletters
• Laws, Forms and Fees
• Immigration News
• Teleconferences
• Audios and Videos

Law Offices of Carl Shusterman

6
Private Law Firm Web Sites
• Our Homepage
shusterman.com
• Current Issue of Our Newsletter
shusterman.com/siu.html
Other Private Web Sites:
www.ilw.com, www.visalaw.com
www.murthy.com, www.fdbl.com

Law Offices of Carl Shusterman

Why You Should Have A

Web Site
• Presence on the Internet
• Ability to Communicate Internationally
• Diversification of Client Base
• Referrals from Other Attorneys
• Organizational Tool
• Web Access for Clients

Law Offices of Carl Shusterman

7
 TAB 22
Top 10 Immigration Updates to Help Guide Your Practice
 The University of Texas School of Law

Presented:
2008 Immigration Law Conference

October 23-24, 2008

San Antonio, Texas

TOP 10 IMMIGRATION UPDATES TO HELP GUIDE

YOUR PRACTICE

Richard A. Gump, Jr.

Author contact information :

Richard A. Gump, Jr.
The Law Offices of Richard A. Gump, Jr., P.C.
Dallas, TX

Continuing Legal Education • 512-475-6700 • www.utcle.org

 Table of Contents

1. You must control your own economy and your attitude or you will not succeed………...1

2. Determine who your clients are or be faced with malpractice…………………………….2

3. Collaborate with other attorneys or you won’t add value to your client………………….3

4. Collaboration with the government is making a comeback……………………………….3

5. Electronic verification will be required of every employer and eventually we will have a

national ID card……………………………………………………………………………4

6. Local laws on immigration will not go away anytime soon………………………………5

7. Comprehensive immigration reform (CIR) will happen, the question is when…………...6

8. Worksite enforcement will remain the cornerstone of any immigration reform………….7

9. The Bill of Rights will take on a new cloak of clarity and a doctrine of fundamental

fairness will emerge……………………………………………………………………….8

10. How you treat others will determine your success in the practice of immigration law…...9
 TOP 10 IMMIGRATION UPDATES TO HELP GUIDE YOUR PRACTICE
by
Richard A. Gump, Jr.

The national economy is in a mess.

We have no comprehensive immigration reform in sight.
Neither the Presidential candidates nor Congress appear to have the courage to enact
immigration reform.
Your family and business practice seems commoditized and your lowest price today is your
highest price tomorrow.
Your costs go up, your fees go down, and you are running faster in that gerbil cage.

The following updates are not accounting tips, new laws or Department of Homeland Security
newsworthy items. They are intended to be some practical guidelines for planning your law
practice based on predictions. Predictions are a blind look into the unknown based on history and
hunches. How we forecast and plan today can make a difference for tomorrow

What are the top 10 predictions every immigration lawyer needs to know to prepare for the
future?

1. You must control your own economy and your attitude or you will not succeed. While
you have little control over the national debt, wrapped collateralized mortgages, interest
rates, or taxation, you have more control over your business than you think. Think (1)
revenues over expenses equal profits, not just cash flow, (2) more work does not always
mean more profit, and (3) you and your fellow workers are the greatest assets your business
will ever own.

The business of practicing law includes having a business plan, appreciating your fellow
workers and your clients, reviewing your financial statements, making reasonable
assumptions about the future, keeping up with technology and the law it brings to your
computer screen, valuing integrity above everything else, and trusting your own judgment.
You must also enjoy what you do.

I used to ride the bus to work in the 1970s and often arrived early in the morning. I worked
for a downtown firm on the 22d floor of the old Republic National Bank Building in Dallas.
When I arrived one spring morning before the sun was up I looked out the window at the
next building and saw curtains blowing in the breeze from the broken glass. I gazed
downward in horror to see the outline of a man who had obviously fallen from that window
to his death. I discovered it was a lawyer from a prestigious firm who had been having both
marital and financial trouble. He ended that trouble in a way I have never forgotten. I
remember sitting back in my chair and thinking whether the practice of law was a
treacherous cliff from which too many lawyers fall. But I also thought of my grandfather who
practiced dentistry for over 50 years in that same block downtown, who once told my father,
his son in law, that if a man didn’t look forward to the day ahead while he was shaving in the
morning, he should do something else. My grandfather lived that life and would have been at

1
 work chatting with his patients one morning when he was 77 years of age had he not died in
his sleep the night before. I never remember him once complaining about his work.

You will have a successful practice and life if you take care of business and your own life.
Don’t let anyone or any issues take away your gratitude for your law degree, your license,
your entry into immigration law, or your personal dignity.

If you do your best to control your business and personal life and learn to roll with the
punches, I predict you will have a successful career as an attorney.

2. Determine who your clients are or be faced with malpractice. Our clients are our
lifeblood and we cannot take them for granted. We must respect them, listen to them,
communicate with them, develop a strategy for them, and solve their problems. Sometimes it
is difficult to figure out who our clients really are and that can be very dangerous.

We all know the ethical problems of dual representation but often we are faced with
husbands and wives, employers and employees, and other multiple party issues. We have to
make reasonable judgments of when to take on a client, when to terminate the relationship,
and when to recommend that a party needs separate representation.

Early in my career my firm enabled me to do many different types of work. One day a
married couple I knew well asked me to represent them in a “friendly” divorce. Even as a
young attorney I knew better and told them I could only represent one of them. They were
fine with that but the other spouse indicated he would not seek another attorney to review the
documents for him. Well, you can guess that the couple ended up in a more acrimonious
mood later on and of course the husband made remarks that I should have made him get
another attorney. I reminded him of my recommendation and we finalized the divorce with
no further problems but I learned my lesson well. Today I often require an employer or
employee to obtain separate representation if I deem a potential problem, and I never handle
dual representation if I don’t believe the employer and employee are both understanding and
paying attention to what is happening and my advice.

Three decades ago a number of immigration attorneys faced indictment for allegedly
encouraging aliens to enter the U.S. on B-1 or B-2 visas with the intention of remaining
permanently. Most of those cases were resolved as courts listened to the arguments but the
government was aggressively on a witch hunt. This could happen again.

In this climate of criminal enforcement the issue of identifying who we represent becomes
heightened and we often face difficult questions. When a new client appears with a COO, HR
manager, and an employee, the lawyer must determine during the interview not only the set
of legal issues but who he/she is really going to represent. If a unity of purpose exists and no
criminal violations have occurred, multiple representations may proceed to say, obtain a
green card through a labor certification for the employee. However, e.g. if the company is
under ICE investigation for criminal violations, who you represent becomes a real issue. Is it
the company, the COO, the HR manager, or the employee? Each may have very different
interests or culpability in the ultimate outcome of the investigation.

2
 I predict the issue of multiple representations will become more of an issue in the years to
come, and we may see more instances of employers and employees represented by different
immigration attorneys.

3. Collaborate with other attorneys or you won’t add value to your client. It doesn’t matter
how much of a Renaissance attorney you think you are or how careful you are, you don’t
know everything, even about immigration law. I started my career as a banking and corporate
attorney, so I learned early on even in simpler times that clients need expertise in several
areas at the same time to solve problems properly. My first immigration case came as a
byproduct of representing a bank in my first year of practice. Be holistic in your approach as
an attorney and look beyond the issue of the particular visa.

Recently I had a case that seemed to be a relatively simple non-immigrant business visa for a
lady. Upon inquiry I found out she and her boyfriend had a business interest in which she
intended to participate. I asked about the structure of the business and his immigration status.
To make a long story short, I handled some important visa matters for him and sent him to a
tax attorney who saved him millions of dollars in income and estate taxes.

I have worked often with criminal attorneys, employment law attorneys, corporate attorneys,
tax (income as well as estate) attorneys, insurance defense attorneys, and others to assist
clients. Often our clients really don’t know what they don’t know, i.e. they don’t know what
evidence to provide or what questions to ask. I often feel like I’m really a dentist pulling
teeth to get information. The information I seek is not just about immigration. I try to use my
judgment as an attorney and common sense to determine what legal issues are out there
looking for discovery. If a patient goes to his doctor and says he has a headache, hopefully
the doctor looks at his history and asks about other symptoms rather than just suggesting an
aspirin. By the same token, we can’t let a client tell us they need an H-1b for an employee
without exploring the company and employee needs.

I predict the complexity of our society, our laws, and our client needs are going to require
greater collaboration of attorneys in the years to come, and we will add value to our clients
by quarterbacking such endeavors.

4. Collaboration with the government is making a comeback. Huh? At first blush that makes
no sense at all. We have an ethical duty to vigorously represent our clients, and working with
the government seems to be the antithesis of such representation. Often it is. More and more
we have to resort to habeas and other court proceedings outside the immigration
administration system to get any justice in any timely manner.

I will give you three examples from the past which hopefully drives my point. First, before I
became chairman of the AILA Liaison Committee for the Texas Service Center a number of
years ago the TSC officers were suspicious and antagonistic toward our efforts and fought
every attempt we made to solve problems for our clients. They always had excuses with no
solutions. We decided to take a different approach and identified a number of areas which
needed improvement, e.g. handling expedites of cases where children would age out (before

3
 the Child Status Protection Act). We explained the problem and had them explain the process
they used to expedite these cases. Together we determined several areas where we could help
them improve their processes, and it actually worked. In addition to gaining some valuable
time for clients, the TSC and AILA Liaison Committee developed a comfortable working
relationship for a few years. Second, I had a client with 300 workers in a factory that was
about to be raided after an I-9 verification document inspection. We worked with the INS
public affairs officer and agreed to adopt some new procedures and were given time to hire
replacements for a number of key employees so they could be trained to take over. The
company would have gone south had this not been allowed. A few years later that type of
program was discontinued, and a more blind enforcement mentality took over. Third, I once
was confronted with obtaining work visas for railroad car workers on a train which for the
first time was allowed to pass from Mexico to the U.S. based on NAFTA. The problem was
that neither the B-1 nor crew visas (crew visas only refer to travel by air or sea) fit, so I had
to collaborate with the Department of State and the consul in Cd. Juarez to negotiate getting
both visas anyway because we simply did not have another alternative and we all agreed the
NAFTA treaty contemplated entry of the railroad workers.

I sense the current climate of the public’s view of an overwhelming problem with
unauthorized aliens, a lack of Congressional action other than pressure on ICE to enforce,
and the bewilderment of both ICE and employers on how to handle an impossible situation
may lead to an opportunity to collaborate similar to the three examples above from years
long past. Collaboration won’t work in every context, but don’t count it out as a possible
option.

I predict the government and immigration attorneys will have greater opportunities to
collaborate on certain types of matters in the future. Look for those opportunities.

5. Electronic verification will be required of every employer and eventually we will have a
national ID card. It just makes too much sense – how can you enforce immigration laws if
you can’t figure out who the person is you are trying to enforce the laws against? I have a
good friend who is now retired because his company invented the card swipe process used at
every gas station you now use to fill your car with gasoline. The bank issuing those cards can
immediately identify you and whether you have the funds to pay for the gasoline. This is not
new and it works very well. The combined threats of terrorism, identity theft, and a disregard
for our immigration laws by too many people will drive us to electronic verification and
beyond. E-verify for all employers is the first step and it will take years to implement totally.
ICE and USCIS already aggressively tout not only E-verify but also IMAGE, which is E-
verify on steroids. IMAGE actually is E-verify with a set of best practices the employer must
adopt to minimize unauthorized employees. Most of the best practices are legitimate because
they minimize the risk but IMAGE also permits government to look over your shoulder. It
will be required of many employers caught with violations looking to settle with ICE and
other employers may find it to be a tool of collaboration if they approach the government
first.

Federal contractors recently have been forced to sign on to E-verify or lose their federal
contracts. They are required to electronically verify any existing employee working on the

4
 contract, any new employee whether working on the contract or not, and any subcontractor
who works on the contract. While certain legal challenges remain as to whether this violates
the verification legislation, nevertheless the pressure is on to move to E-verify.

The next logical step is a national ID card which can be argued as a valid tool to avoid
identity theft and terrorism, not just to minimize illegal immigration. Yes, Big Brother is
lurking around the corner, and this time you may be the one asking for his protection. In the
1980s a national ID card was proposed and shot down as an unnecessary invasion of privacy.
International drug rings, international terrorism, and identity theft are making lawmakers and
the public take another look at a national ID card. Of course it is not called a national ID
card, but please tell me what the REAL ID Act, E-verify, new passport laws, and various
other laws are creating other than a virtual national ID card.

I predict E-verify will proliferate and be accepted by all employers over time, and it is the
first step in the direction of a national ID card.

6. Local laws on immigration will not go away anytime soon. While one would assume the
issue of who is allowed in this country is solely a matter of federal jurisdiction, it appears
concurrent jurisdiction is here to stay. This is not unusual. Think of the SEC, OSHA and
EPA – our securities, safety and environmental network of federal laws actually encourage
local legislation. Why? The federal government does not have the will or capacity to handle
these initiatives on its own and depends on state legislation and enforcement to carry out the
general themes of the federal government.

The current trick to avoid preemption in local laws is to tie them to business licenses. Not all
laws will meet the still evolving standards, e.g. a law requiring visas to enter a state would
not hold up against preemption. Two senators from Texas recently asked the Texas Attorney
General for an opinion on what types of legislation will pass the preemption test in Texas,
including whether “sanctuary cities” can be prohibited. Over 1,000 pieces of local legislation
have been introduced around the U.S. and some of these cases likely will trickle up to the
U.S. Supreme Court.

The proliferation of local immigration laws is generated by anger and frustration over the
lack of a legal system that provides both for the protection of our borders and a means
whereby the available supply of international human capital can meet the outstanding
demand. The chaos and lack of local enforcement over many of these laws just now coming
into actual usage may actually help lobby efforts after the upcoming national election to build
a consensus for comprehensive immigration reform.

This conference has fine papers and speakers on local immigration laws and “sanctuary
cities”. Learning the trends is very important because I believe local laws are here to stay.
Many believed in 1986 that worksite enforcement (then called employer sanctions) was a
temporary measure and would be discontinued. While enforcement has been a roller coaster
and a lack of consistent enforcement has led to an increase in unauthorized aliens in the U.S,
worksite enforcement is here to stay. Local laws prohibiting, say, employers from hiring

5
 unauthorized aliens and losing their license to do business if they do, will not go away and
will force local law enforcement to collaborate with ICE.

I predict states and other local governments will continue to proliferate laws but they will
adopt more practical and enforceable goals as permitted by the U.S. Supreme Court in
decisions yet to be rendered.

7. Comprehensive immigration reform (CIR) will happen, the question is when. The issue
has been seriously discussed since the early 1980s but even today we do not have either a
general public consensus or a government leader consensus (Administration and Congress).
Without a public will it is difficult to carve out legislation and therefore the legislators avoid
it like a plague. The current President favored a form of CIR but it was derailed by his own
party. The opposing party did not want to touch it when it gained control of the House and
Senate in 2006 because its own members disagreed with each other and they did not want the
party of the President to get any credit for passage of CIR.

The public and the economy suffer from the lack of CIR. Family members are torn apart and
businesses face criminal sanctions for knowingly hiring unauthorized aliens and yet have no
means to legalize many qualified alien workers outside or inside the U.S. This phenomenon
increases the need to outsource anything that can be produced outside the U.S. where other
nations welcome our export of intellectual property development or manufacture of hard
goods. For those companies engaged in activities which demand labor in the U.S., e.g.
construction workers, they find themselves between a rock and a hard place. It is very
difficult to build a 20 story building outside the U.S. and import it back in.

Over the years we find patching legislation that tries to bandage a problem without really
solving it. AC21 is perhaps a great example – a complicated series of bandages that provides
the immigration system from bleeding to death.

The international community moves natural resource capital and money capital very well, but
the U.S. in particular has a difficult time importing the human capital it needs to compete in a
global economy. Despite the current economic meltdown, economists and human resource
professionals predict shortages of workers at the low and high end of the pay scales in the
long term. Instead we find businesses organizing international conferences overseas and U.S.
schools having a harder time competing for students.

Consider an example which occurred in my office a couple of years ago. A consortium of

scientists organized by a university wanted to bring in a Chinese scientist who was working
in London to collaborate on a group of patents. This scientist had a number of patents he had
developed. At that particular window of time no temporary H-1b or permanent visas were
available because of quota issues. He really needed an expedited H-1b because of necessary
time frames. We had no time for an O-1. He went back to London where his colleagues had
told him it was a waste of time to try to work in the U.S. Is it ironic that he was to collaborate
on developing patents for airport security?

6
 If McCain is elected President and pushes for CIR as a means of providing leadership in an
area the Democrats will accept will Congress jump on it or delay it? If Obama is elected
President will he push for CIR or will a Democratic Congress have other initiatives which
will take priority? Will the economy continue to be the primary focus of Congress and the
President (either McCain or Obama) such that CIR is thrown to the back of the bus? Yet
arguably CIR can be an important element in a successful economic recovery.

I predict CIR will happen because it has to occur if we are to remain competitive in the world
economy – but when?

8. Worksite enforcement will remain the cornerstone of any immigration reform.

Employers did not become junior immigration cops until 1986 and many predicted this
experiment would be temporary. They were wrong. Unless employers, who are the magnet
for legal and illegal aliens to come to the U.S., play a role in enforcement, any form of CIR
will fail. The primary reason the Immigration Reform and Control Act of 1986 was not more
successful was the failure of fair and consistent enforcement.

When you drive down an open highway with a 65 mile per hour speed limit and those around
you are flying past you, you tend to press down on the accelerator yourself. If a patrol car is
always present on that highway you tend to stay close to the speed limit. When an employer
needs workers and his/her competitors pay little attention to the immigration laws he/she is
tempted to minimize or ignore compliance. What we have today is the convergence of former
Customs officers used to consistent compliance, an Administration unable to initiate CIR and
pressed to “protect the border”, and the Department of Homeland Security determining that
civil fines are considered by employers as “chump change.”

Now we have most of the same laws in existence in 1986 used to bring criminal indictments
against employers for activities that were considered only as civil violations in the past. The
crime of harboring includes indictments for “aiding and abetting an unauthorized alien to
remain in the United States” and other similar violations. The push toward electronic
verification has led to the proliferation of identity thefts as opposed to the use of fraudulent
documents. Both are crimes and U.S. attorneys are being hired to prosecute them to the
fullest extent. Employers who knowingly have employees who have used stolen or fake
documents find themselves a party to “aiding and abetting”.

The use of criminal sanctions is used aggressively by the federal government in other
contexts when examples need to be set and/or a “culture of compliance” does not exist. We
still do not have a culture of compliance when it comes to immigration laws in this country.
Those laws are for others, not for “my housekeeper, my foreman, or my daughter’s husband.”
A person who would not think of cheating on his/her taxes because that culture of
compliance has been brought home for years will cheat on immigration laws without even
thinking twice about it. As previously stated, we as a nation do not have a public will or a
cogent public policy when it comes to immigration. However, the concern for drug
smugglers, terrorism, and border security demand greater enforcement which includes
aggressive use of criminal sanctions.

7
 I predict that the use of criminal penalties will always be a cornerstone of CIR.

9. The Bill of Rights will take on a new cloak of clarity and a doctrine of fundamental
fairness will emerge. The U.S. is still in the infancy of determining what rights we have as
citizens which requires us to figure out what rights we are willing to give non-citizens. Wars
have been outside our boundaries since the Civil War unless you want to consider Pancho
Villa’s short incursion in the early 20th century. The 911 attack and the drug wars have
awakened Americans to the fact that Fortress America really doesn’t exist. This awareness
combined with the paranoia of having foreigners in our country who may not be legal and
may not like us have created some fundamental questions about what we can do and not do
to U.S. citizens and non-citizens.

I have recently completed reading a book on James Madison and the Bill of Rights, and I was
reminded of the difficulty he had in getting the Constitution approved after the Revolution.
He and others knew how important it was to form a more collective society and government
than the prior Articles of Confederation, but it was a very hard sale to make. It took over two
years of arguing before the Constitution could be adopted, and only then by adding the Bill
of Rights to more fully protect the citizens against perceived government intrusion. Those
fundamental rights have been litigated and interpreted over the years but remain basically
intact.

Are we in a period where some of those fundamental rights are being questioned today?
Consider our post 911 concerns about how to handle both U.S. citizens and non-citizens in
the war on terrorism. Do we bring treason against a U.S. citizen who works with the enemy?
Can we have a military court handle non-citizens captured outside our borders? Can we lock
up captives indefinitely without a right to trial and invoke questionable interrogation
techniques without violating cruel and unusual punishment? Can we lock up non-citizens and
their children indefinitely and without proper medical safeguards if they are here illegally?
What is the right of a non-citizen to have his/her day in court to challenge his/her right to stay
here?

I am on the board of a club where I play golf on weekends. A regular member can play golf
and tennis and enjoy all the benefits of the club. We have other types of membership which
limit those rights. We have guest rules that define when guests can play golf, etc. and
whether they must be accompanied by a member. If a member pays dues he/she should have
the privileges of membership. Those rules are tested when members try to take advantage of
many undefined issues involving guests, such as the significant other of an unmarried
member, a tennis program which allows guests to play over an entire season, etc. If a
member brings a guest outside the rules he/she may face a letter of admonishment and, if
appropriate, the loss of the use of the club for a period of time. If non-member shows up to
play golf unexpectedly he/she is politely told this is a private club and he/she must be
accompanied by a member. The member or guest outlined above is not locked up or thrown
out on his/her ear. Everyone is treated with respect, whether a member, a guest, or an
uninformed visitor.

8
 Now let us compare the above scenario with Club America. We have our rights as tax paying
citizens and those rights certainly should be above the rights of invited or uninvited guests.
Some U.S. citizens invite unauthorized guests into the U.S. and some invited guests overstay
their visit or violate the guest rules. When confronted with violations we tell our guests they
are not eligible for protection of our Bill of Rights with some exceptions carved over the
years. Take searches without a warrant – generally the protection can be preserved only when
U.S. citizen employers are involved. Sometimes we lock up our guests for extended periods
of time, throw them out of the U.S. without a hearing, separate them from medicine or
family, and/or generally treat them in a manner we would never consider for a U.S. citizen.
When a U.S. citizen and an alien guest marry based on the fact that the crime committed by
the alien guest has been disclosed and will not lead to deportation, we have no qualms about
later changing the law and throwing the alien guest out on his/her ear even though we have
permitted them to become permanent residents. Somehow Club America has lost its basic
reputation as a place where guests feel their fundamental rights are being honored.

Fundamental rights – what might they be? Are we back to the time of James Madison and
Patrick Henry arguing over what those fundamental rights ought to be; only this time the
argument involves our guests rather than our citizens? Are there or should there be
fundamental rights of human beings that must be recognized for the benefit of our guests?
We are members of the Geneva Convention for the treatment of war captives, but what about
the treatment of ordinary guests, (invited or uninvited, overstays or violators)? Perhaps we
are entering a time when the federal courts will apply the basic principles of the Bill of
Rights to our guests or develop a new body of law that respects defined basic rights of human
beings. Certainly examining retroactive laws and the right to hearings would be a good start.

I predict the Bill of Rights protections for aliens will be questioned again by the U.S.
Supreme Court and certain fundamental human fairness rights will emerge.

10. How you treat others will determine your success in the practice of immigration law.
Most of us became immigration attorneys with a compassion for immigrants, whether we
practice family or business immigration law. Immigration practitioners are known to mentor
and assist their colleagues. We must represent our clients with zeal and fight the government
for our client’s rights. At the same time we must not forget to treat EVERYONE with
courtesy and compassion – our law partners and associates, our paralegals and staff, our
colleagues, government officials, our clients and their employees or families, our potential
clients, and most of all our own families.

The stress of practicing law and our need to fight for our clients can take a toll on our ability
to treat others as we want to be treated. Our practice of law is like a house of cards: the
collaborative effort of a legal team, the relationship with the client, and the trust of the
government official can collapse when people are not treated with courtesy and compassion.
Of course, when it collapses the attorney goes home and kicks the dog.

Above we discuss the need for a fundamental fairness for guests in our country, and now we
need to take that message to the level of our own offices and homes. Even the intransigent
government official, the arrogant client, or the disobedient staffer is a human being and a

9
 compliment will get better results than an insult or a sullen smirk. The more we can listen
and understand the better we can provide solutions for our client, and the better we can
communicate our positions to the government the greater the chance of success. If you want
to come to work every day and make sure your fellow office workers have the same outlook,
your enthusiasm and caring will pour over to your clients. Then when you go home at night,
remember to kiss your spouse and give the dog a bone.

Conclusion
What does the future hold for the practice of immigration law? I believe it will flourish with the
need for the movement of human capital to compete in the world economy. We will undergo a
Renaissance leading to significant changes that will include a review of fundamental fairness for
all humans, comprehensive immigration reform matching supply and demand, consistent
enforcement, and a national ID card. We will need immigration attorneys to help sort all this out
along the way.

10
 Supp.
Supplemental Materials
 The University of Texas School of Law

Presented:
2008 Immigration Law Conference

October 23-24, 2008

San Antonio, Texas

Supplemental Materials

1. Fifth Circuit's decision in USA v. Yong Ping Liu

2. Fifth Circuit's decision in USA v. Carrilles
3. Assorted articles on Foreign Adoptions

Continuing Legal Education • 512-475-6700 • www.utcle.org

Contacts
2008 Immigration Law Conference Faculty Contact Info
Mr. Robert W. Alcorn
14881 Quorum Dr., LB 9, Suite 410
Dallas, TX 75254
Phone: 972-724-0325
Fax: 972-539-6226
Email: robert@rwalcorncpa.com
Mr. Albert Armendariz Jr.
Dunbar, Armendariz & Hegeman, LLP
501 E Nevada Ave
El Paso, TX 79902-4242
Phone: 915-542-1071
Fax: 915-542-1079
Email: armenlaw@aol.com
Ms. Mary Elizabeth Cedillo-Pereira
Cedillo-Pereira & Cedillo, PLLC
2600 State St
Dallas, TX 75204-2633
Phone: (214)981-9442
Fax: (214)740-1630
Email: mecp@cedillolaw.com
Mr. Nicolas Chavez
Chavez, Gallagher & Valko, LLP
10830 N Central Expy Ste 400
Dallas, TX 75231-1099
Phone: (214)251-8011
Fax: (214)251-8021
Email: nickchavez@keyvisa.com
Mr. Gary E. Endelman
BP America, Inc.
Immigration Law Group
501 Westlake Park Blvd, MC 16.156
Houston, TX 77079-2604
Phone: (281)366-4310
Fax: (281)366-3596
Email: gary.endelman@bp.com
Ms. Nicole Lawrence Ezer
Greenberg Traurig LLP
1000 Louisiana
Suite 1700
Houston, TX 77002
Phone: 713-374-3613
Fax: 713-754-6613
Email: ezern@gtlaw.com
Mr. Richard S. Fischer
The Law Offices Of Richard S. Fischer
114 South Pecan Street
Nacogdoches, TX 75961-5506
Phone: 936-564-2222
Fax: 936-564-1346
Email: fischerlaw@sbcglobal.net
Mr. Eugene J. Flynn
Eugene J. Flynn, P.C
1511 Villars Street
Dallas, TX 75204-5439
Phone: (214)821-1661
Fax: (214)821-1668
Email: eugenejflynn@yahoo.com
Mr. Harry Gee Jr.
Law Office of Harry Gee, Jr. & Associates, APC
5847 San Felipe St., Ste 2950
Houston, TX 77057-3265
Phone: 713-781-0071
Fax: 713-781-2409
Email: hgee@harrygee.com
Ms. Jodi M. Goodwin
Law Office of Jodi Goodwin
1322 E Tyler Ave
Harlingen, TX 78550-7142
Phone: 956-428-7212
Fax: 956-428-7360
Email: jodigoodwin@sbcglobal.net
Mr. Richard A. Gump Jr. Mr. Ira J. Kurzban
Attorney at Law Kurzban, Kurzban, Weinger & Tetzeli, PA
13355 Noel Rd Ste 1940 Suite 200
Dallas, TX 75240-6834 2650 SW 27th Avenue
Phone: (972)386-9544 Miami, FL 33133
Fax: (972)386-9547 Phone: 305-444-0060
Email: rick@rickgump.com Fax: 305-444-3503
Email: ira@kkwtlaw.com
Ms. Mona Gupta
Gupta And Wiora, P.C. Ms. Judy J. Lee
14675 Midway Rd., Ste. 208 Quan, Burdette & Perez, PC
Addison, TX 75001-3907 5177 Richmond Ave Ste 800
Phone: (972)701-8200 Houston, TX 77056-6736
Fax: (972)701-8210 Phone: (713)625-9200
Email: mona@immigrationteam.com Fax: (713)625-9292
Email: jlee@quanlaw.com
Mr. Maurice Y. Hew Jr.
Texas Southern Univeristy Ms. Meredith Linsky
Thurgood Marshall School of Law ProBAR
3100 Cleburne St 301 E Madison Ave
Houston, TX 77004-4501 Harlingen, TX 78550
Phone: (713)313-1006 Phone: 956-425-9231
Fax: 713-313-1191 Fax: 956-425-9233
Email: mahew@tmslaw.tsu.edu Email: probar@sbcglobal.net

Ms. Barbara Hines Ms. Rebecca R. Massiatte

University Of Texas School Of Law Winstead PC
727 E. Dean Keeton, Immigration Clinic 5400 Renaissance Tower
Austin, TX 78705 1201 Elm Street
Phone: 512-232-1310 Dallas, TX 75202
Fax: (512)232-0800 Phone: 214-745-5733
Email: bhines@law.utexas.edu Fax: 214-745-5391
Email: rmassiatte@winstead.com
Mr. Harry J. Joe
Winstead , PC Ms. Patsy Yung Micale
1201 Elm St Bell Nunnally & Martin LLP
Dallas, TX 75270-2002 1400 One McKinney Plaza
Phone: 214-745-5296 3232 McKinney Avenue
Fax: 214-745-5390 Dallas, TX 75204
Email: hjoe@winstead.com Phone: (214)740-1475
Fax: (214)740-1499
Email: patsyy@bellnunnally.com
Mr. Paul Parsons
Paul Parsons P.C.
704 Rio Grande
Austin, TX 78701
Phone: 512-477-7888
Fax: (512)479-6903
Email: parsons@immigrate-usa.com
Ms. Michelle L. Saenz-Rodriguez
2720 N Stemmons Fwy Ste 1200
Dallas, TX 75207-2246
Phone: (214)637-5700
Fax: (214)637-5707
Email: michelle@sralawonline.com
Ms. Erica Britt Schommer
Texas RioGrande Legal Aid
300 S Texas Blvd
Weslaco, TX 78596-6108
Phone: (956)447-4806
Fax: 956-968-8823
Email: eschommer@trla.org
Ms. Nancy Taylor Shivers
Shivers & Shivers
1146 S Alamo St
San Antonio, TX 78210-1178
Phone: 210-226-9725
Fax: (210)226-4428
Email: Ntshivers@shiverslaw.com
Mr. Robert Arley Shivers
Shivers & Shivers
1146 S Alamo St.
San Antonio, TX 78210-1178
Phone: (210)226-9725
Fax: (210)226-4428
Email: rashivers@msn.com


Mr. Carl Michael Shusterman
Law Offices of Carl Shusterman
600 Wilshire Blvd., Suite 1550
Los Angeles, CA 90017
Phone: (213) 623-4592
Fax: 213-623-3720
Email: carl@shusterman.com
Ms. Vanna Slaughter
Catholic Charities Immigration and Legal Services
5415 Maple Ave. St., Suite 400
Dallas, TX 75235
Phone: 214-634-7182
Fax: 214-634-2531
Email: VSlaughter@ccicsdallas.org
Mr. T. Douglas Stump
T. Douglas Stump & Associates
1900 NW Expy
Oklahoma City, OK 73118
Phone: 405-879-0800
Fax: 405-879-0303
Email: dstump@usvisagroup.com
Ms. Lee J. Terán
St. Mary’s University School Of Law Immigration
Clinic
2507 NW 36th St
San Antonio, TX 78228-3918
Phone: (210)431-5709
Fax: (210)431-5700
Email: lteran@stmarytx.edu
Ms. Jacqueline L. Watson
Hines & Leigh, P.C.
1005 E 40th St
Austin, TX 78751-4805
Phone: (512)452-0201
Fax: (512)323-9351
Email: jacqueline@hines-leigh.com
Mr. Peter D. Williamson
Chamberlain, Hrdlicka, White, Williams & Martin
1200 Smith, 14th Floor
Houston, TX 77002
Phone: 713-658-1818
Fax: 713-658-2553
Email: peter.williamson@chamberlainlaw.com

Ms. Edna Yang

PAPA: Political Asylum Project of Austin
314 E Highland Mall Blvd Ste 501
Austin, TX 78752-3733
Phone: (512)478-0546
Fax: (512)476-9788
Email: ednay@papais.org


 Robert W. Alcorn, MBA, CPA
14881 Quorum Dr
LB #9, Suite 410
Dallas, TX 75254-7014
Ph: 972-724-0325 Fax: 972-539-6226 Email: robert@rwalcorncpa.com

BIOGRAPHICAL INFORMATION
Robert Alcorn has over 25 years experience in both industry and public accounting. His
past experience includes Big Four public accounting in both audit and tax, Controller positions
with both publicly traded SEC companies and non-public companies, acquisitions, mergers,
startups, turnarounds, etc. He currently operates his own public accounting practice in north
Dallas, working with clients in a wide variety of industries, and is involved in other private
commercial interests. Bob speaks Spanish and is heavily involved with the regional immigration
tax and law community.

EDUCATION:
BBA in Accounting with Honors (1979), The University of Texas at Arlington
MBA (1998), The University of Texas at Arlington

PROFESSIONAL ACTIVITIES:
Member:
American Institute of CPA’s
Texas Society of CPA’s
Dallas Chapter – Texas Society of CPA’s
Advisory Board Member – Dallas Catholic Charities Immigration Counseling
Services
SBOT Grievance Committee, Public Member– Dallas District

Presentations:
AILA Annual Conference On Immigration Law – June 2008
Univ. of Texas School of Law Immigration Law CLE
State Bar of Texas Immigration Law CLE
Oklahoma Bar Association Immigration Law CLE
Dallas Section of AILA (American Immigration Lawyers Assoc)
Frequent guest on local Spanish channel TV & radio programs on immigration
tax issues
Various presentations in Wash. DC, Texas and Louisiana to local immigration-
related organizations on immigration tax issues
ALBERT ARMENDARIZ, JR., is a graduate of Cathedral High School of El Paso,
Texas, the University of Texas at El Paso, ant the University of Texas at Austin School
of Law. He is an experienced civil rights and immigration attorney. He was counsel on
Murillo, et al. V. Musegades, et al., (The “Bowie High School case”). In 1992, the
Bowie High School case was recognized by the National Immigration Project and the
American Civil Liberties Union as the top civil rights case dealing with immigration
issues in the U.S. Since 1970, Mr. Armendariz, has maintained a private law practice in
El Paso, Texas, and is a partner in the law firm of Dunbar, Armendariz & Hegeman,
PLLC. He is a Past President of the Mexican-American Bar Association of El Paso and
the El Paso Association of Immigration Practitioners. He is a member of American
Immigration Lawyers Association (AILA), El Paso Bar Association, Mexican-American
Bar Association of El Paso, and the National Immigration Project of the National
Lawyers Guild. Mr. Armendariz has spoken at the local, state, and national level and
written on a variety of immigration law subjects. Mr. Armendariz is active in civic and
community affairs, having served on the Board of Directors for the El Paso Legal
Assistance Society and as chairperson of the Board of Education of the Catholic Diocese
of El Paso and El Concilio de El Paso. He is a former chairperson and member of the
Board of Directors of the Lawyers Committee for Civil Rights Under Law of Texas
Immigrant and Refugee Rights Project. Mr. Armendariz has been married for 40 years
to the former Virginia Concha, and they have three children and three grandchildren.
Mary Elizabeth Cedillo-Pereira (Liz)
North Dallas High School, University of Pennsylvania, Southern Methodist University Dedman
School of Law

Mary Elizabeth Cedillo-Pereira (Liz). Liz has dedicated her legal career to the practice of
Immigration and Nationality law. She is Board Certified in Immigration and Nationality Law by
the Texas Board of Legal Specialization.

In 2000, Liz began practicing immigration law on the Texas/Mexico border in Harlingen, Texas
under the supervision of mentor, Lisa S. Brodyaga, representing clients in removal proceedings.
Thereafter, Liz returned to her hometown, Dallas, to help launch a legal aide program for
immigrants detained by the United States Immigration and Customs Enforcement as staff attorney
for Catholic Charities of Dallas. In this position, Liz was recognized by the City of Dallas as a
“hometown hero” for her work in representing immigrants. She worked as an associate for Reina
& Associates from 2003 to 2006.

In 2006, Liz launched Cedillo-Pereira & Cedillo, PLLC with her brother and partner, Eric Cedillo
(www.cpcimmigrationlaw.com). Combining her experience in public policy with the practice of
law, Liz is dedicated to seeking U.S. immigration solutions for clients from around the world.
Liz has been a National finalist for the White House Fellowship Program, an American Marshall
Fellow, and served on the staff for two members of the U.S. Congress, Honorable Lucille Roybal-
Allard (CA) and Honorable Eddie Bernice Johnson (TX). Most recently, Liz was a delegate for
Senator Barack Obama to the Democratic National Convention in Denver, Colorado.

Apart from immigration, Liz’s passion is children and education. In 1997, Liz founded SI
PUEDES! as a law student at SMU. SI PUEDES! @ SMU (http://people.smu.edu/sipuedes) is a
tutoring and mentoring program for Dallas students to inspire and prepare first-generation college
bound students.

Today, Liz is an advisor to SI PUEDES! @ SMU, a member of the Dallas Hispanic Bar
Association, the Hispanic 100, the SMU Hispanic Advisory Group, the World Affairs Council,
Dallas Hispanic Chamber of Commerce, member of the Advisory Committee for Catholic
Charities of Dallas, a member of the American Immigration Lawyers Association, and co-founder
of AILA-Texas “Know Your Rights” Project to provide pro-se detainees information on legal
remedies. Liz also recently helped form the Texas DREAM Act Coalition, group of concerned
Texans dedicated to the passage of the federal DREAM Act.

Liz is married to Oscar Pereira, an aeronautical engineer, and together they are blessed with three
children and three pets.
 Nicolas Chavez, Esq.
Chavez, Gallagher & Valko, LLP
10830 N. Central Expwy., Suite 400
Dallas, TX 75231

phone: (214) 251-8011 (Dallas)

phone: (817) 332-1100 (Fort Worth)
nickchavez@KeyVisa.com

Nick Chavez is a founding partner in the immigration law firm of Chavez,

Gallagher & Valko, LLP based in Dallas, Texas. He practices primarily in the
firm’s Fort Worth office. He is Board Certified in Immigration & Nationality Law
by the Texas Board of Legal Specialization.

Nick is a contributing writer for Immigration Law Today, where he features his
immigration-related cartoons—Chavez World. He serves in the Texas Committee
of Unauthorized Practice of Law. He is a member of the American Immigration
Lawyers Association.

Before practicing law, he earned his B.A., with honors, from The University of
Texas at El Paso and a J.D. from The University of Houston Law Center, where he
served in the Immigration Clinic under the tutelage of the late Professor Joseph
Vail.
 Gary Endelman
BP America Inc.
Immigration Law Group
501 Westlake Park Blvd.
th
16 Floor
Houston, Texas 77079
(281) 366-4310
endelmge@bp.com

EDUCATION
B.A. History, Phi Beta Kappa from the University of Virginia
M.B.A & Doctorate U.S. History from the University of Delaware (1978)
J.D., University of Houston (1984) Summa Cum Laude.

He has practiced immigration and nationality law in Houston in private practice

(1985-1995) and as the in-house immigration counsel for BP America Inc.
handling all US immigration law for the BP Group of Companies throughout the
world since March 1995 until the present.

Gary Endelman is Board Certified in Immigration and Nationality Law. He served

on the certification exam committee in immigration and nationality law for the
State Bar of Texas for several years and chaired this body for three years.. He is a
frequent speaker and writer on immigration related topics including a column on
immigration law at www.ilw.com. He has written extensively in Interpreter
Releases, Bender’s Immigration Bulletin, Immigration Briefings, Immigration
Business News & Comment to mention but a few national publications. He has
spoken at national and regional immigration conferences throughout the United
States and at a global immigration conference in the United Kingdom. He served
as a senior editor of the national conference handbook published by the American
Immigration Lawyers Association for a decade.

In July 2006 Mr. Endelman testified before the US Senate Judiciary Committee
on comprehensive immigration reform.

Dr. Endelman is the author of “ Solidarity Forever: Rose Schneiderman and the
Women’s Trade Union Movement” published in 1978 by Arno Press.
 Nicole Lawrence Ezer

Nicole Lawrence Ezer is Counsel for Immigration and Nationality Law at the firm of Sutherland Asbill &
Brennan LLP. She focuses her practice on business immigration, primarily for large oil and gas
companies. She is Board Certified in Immigration and Nationality Law by the Texas Board of Legal
Specialization. Nicole develops, implements and updates immigration policies for multinational
corporations.

Nicole’s practice includes nonimmigrant visas; B-1/OCS issues, including Coast Guard exemptions for
individuals and for vessels; national interest waivers; multinational managers; outstanding
researchers, extraordinary ability petitions; liaising with tax and relocation service providers, labor and
employment counsel; acquisition and relinquishment of legal permanent residence; and short- and
long-term immigration strategies for foreign national employees and family members. She has
experience accompanying clients to the United States consulate in Mexico to apply for employment-
based visas, as well as experience working with A-visa holders and worksite enforcement matters.

Nicole continues to practice in the areas of family-based immigration, naturalization and asylum, and
to participate in activities that provide education to industries and communities regarding immigration
issues. Her most recent article, “The Intersection of Immigration and Family Law” appears in the Fall
2006 ABA Family Law Quarterly, and in the ABA’s GP Solo Publication’s “The Best Articles Published by
the ABA” in September 2007. She is a frequent speaker before industry, HR groups and for attorney
CLE activities, and is a 2002 graduate of the Center for Houston’s Future Leadership Forum.
Nicole has also served as an adjunct professor at the University of Houston Law Center, teaching
“Business Immigration Basics.” She has also published “Immigration Policy is a Must,” and in the
Houston Business Journal in January 2006 and “Keep an Eye on Hiring Practices to Avoid problems
with the DHS” in the HBJ Business Survival Guide in April 2007.

Nicole received her J.D. from Boston University School of Law in 1994 and her B.A. from Smith College
in 1991. She is a member of the State Bar of Texas and the Hawaii State Bar Association. She is
licensed by the Supreme Courts of Hawaii and Texas, and the United States District Courts of Hawaii
and the Southern District of Texas. Nicole is a member of the American Immigration Lawyer’s
Association; the American Bar Association; the Houston Bar Association, Minority and Speaker
Committees; and the College of the State Bar of Texas. Voted as a “Rising Star” in the area of
Immigration and Nationality Law in 2004, 2005 and 2008 by her colleagues, Nicole was a member of
the faculty of the State Bar of Texas Immigration Law Institute in 2004, 2005, 2006 and 2007, and
most recently, the University of Texas School of Law Immigration Conference in San Antonio in
Winter, 2007 . A naturalized American, Nicole remains active in the support of pro-bono efforts within
the Houston Community, and is on the Executive Committee for the University of Houston Arrival
Awards, and has spearheaded her firm’s current sponsorship of the University of Houston Immigration
Clinic since 2006. She may be reached at nicole.ezer@sablaw.com, or via telephone at (713) 470-
6160. The website for Sutherland Asbill & Brennan LLP is www.sablaw.com.
 BRIEF BIOGRAPHICAL SKETCH
Richard S. Fischer

Richard S. Fischer is a 1978 graduate of Cornell University,

a 1982 graduate of The University of Texas School of Law, and
engaged in the private practice of law in Nacogdoches, Texas,
behind the Pine Curtain that separates East Texas from the
civilized world. His law practice is divided between
administrative matters related to the immigration and nationality
laws and litigation, the latter including benefits litigation
against the federal immigration authorities, and civil rights,
employment and personal injury cases, always from the plaintiff’s
side. He has three children currently studying at the University
of Texas, and one who will likely return there next year for law
school.
 Eugene J. Flynn
Eugene J. Flynn, P.C.
1511 Villars Street
Dallas, TX 75204

phone: (214) 821-1661

eugenejflynn@yahoo.com

Eugene J. Flynn is a graduate of Southern Methodist University School of Law. He is admitted to

practice in the State of Texas, and before the Federal District Court for the Northern District of Texas,
the United States Courts of Appeals for the Fifth and Eight Circuits, the U.S. Supreme Court and the
U.S. Court of International Trade. He is certified in the area of Immigration and Nationality Law by
the State Bar of Texas, Board of Legal Specialization and served as a Drafter/Grader for the Board's
Immigration and Nationality Law Exam (1990-93) and on their Immigration and Nationality Law
Advisory Commission (2001-2006).

He is a Past Chair (1990-91) of the Texas Chapter of the American Immigration Lawyers Association
(AILA). He currently serves on the National AILA “Distance Learning 2 Committee: Podcasts and
other.” In 2008-09 he will serve as Chair of the FOIA Action Committee. He has served as a member
of the State Bar of Texas, Committee on Laws relating to Immigration and Nationality since the
committee's inception in 1982 to 1993, from 1994 to 2001 and from 2003 to 2006. He serves on the
Advisory Board for Catholic Charities Immigration Legal Services in Dallas.

He is "AV" rated by Martindale-Hubbell and has been found in Best Lawyers in America since 1993.
From 2003 to the present Texas Monthly magazine has identified him as a "Super Lawyer," within the
top 5% of all Texas lawyers and one of only four listed in the Immigration category from Dallas for all
five years. He has also been selected as a "Super Lawyer" again this year.

He has written a number of articles on Immigration Law and has spoken on that topic to many groups
here in the United States and abroad. He was a member of the faculty of the University of Texas
School of Law's Annual Immigration Law Conference in 1985, 1986, 1988, 1989, 1990, 1991, 1993,
1995, 1996, 1999, 2000, 2002, 2003, 2004, 2005, 2006 and 2007. He has served on that Conference's
Planning Committee 2000-2004 and 2006-08. Mr. Flynn also taught Immigration and Nationality Law
at Texas Wesleyan University School of Law (1992 and 1996). He is a contributor to Legomsky
Immigration and Refugee Law and Policy, 3rd Ed. (Foundation Press 2002). He served as an Associate
Editor of The David Stanton Manual on Labor Certification, 2nd Ed. (AILA 1998), as an Associate
Editor of Immigration Options for Investors and Entrepreneurs (AILA 2006) and and as Editor of
Chapter 7, Part VI (EB-5), Kurzban's Immigration Law Sourcebook (AILA 10th ed. 2006 and 11th ed.
2008).
 Harry Gee, Jr.
Harry Gee, Jr. and Associates
5847 San Felipe, Suite 2950
Houston, Texas 77057

Phone: (713) 781-0071

lohg@harrygee.com

BACKGROUND, EDUCATION AND PRACTICE

Harry Gee, Jr. is the founding principal of the law firm of Harry Gee, Jr. and Associates
and has practiced immigration law in Houston, Texas for over 40 years. Before
practicing law in Houston, he earned a Bachelor of Arts degree in Business
Administration and Economics from Rice University in 1960 and a J.D. from the
University of Texas School of Law in 29 months. After serving as Assistant Attorney
General of the State of Texas until 1966, he returned to Houston and established his own
firm.

Harry has served as conference chair of the University of Texas School of Law’s
Immigration Law Conference and has spoken not only at the UT conferences but also at
conferences sponsored by the American Immigration Lawyers Association, the State Bar
of Texas and the Asian American Bar Association.

Involvement with the community is his passion and he has served as chairman of the
American Leadership Forum, president of Sister Cities of Houston, chairman of the
Houston Council on Foreign Relations and president of NAPABA, the National Asian
Pacific American Bar Association and the Houston Asian Bar. He has received
numerous awards and recognition for his community and legal service including the
Metropolitan Transit Authority of Houston Community Service Honor, the Humanitarian
Award from the National Conference of Christians and Jews, the Leon Jaworski Award
from the Houston Bar Association Auxiliary, the Trailblazers Award from NAPABA and
the Spirit of Excellence Award from the American Bar Association. Ultimately, the one
thing he is most proud of is his family. He has been married to his wife, Antje, for over
35 years and his three children are all graduates of Rice University.
 Jodi Goodwin
Board Certified -- Immigration & Nationality Law
Texas Board of Legal Specialization

Law Office of Jodi Goodwin

1322 East Tyler Avenue
Harlingen, Texas 78550
956-428-7212
956-428-7360 (fax)
jodigoodwin@sbcglobal.net

Jodi is a sole practitioner in Harlingen, Texas. She is certified in Immigration &

Nationality Law by the Texas Board of Legal Specialization. Ms. Goodwin attended the
University of Texas and St. Mary's University School of Law. Ms. Goodwin has a strong
volunteer record in organizations serving immigration lawyers including the State Bar of
Texas Committee on Laws Relating to Immigration & Nationality, ProBAR, the US
Center for Refugee & Immigrant Children, AILF and AILA. She also enjoys teaching
other lawyers immigration law, especially new practitioners. When Ms. Goodwin is not
working, volunteering for some organization, or teaching other lawyers, she is making
the most of her time with her two daughters, Helen and Carolyn.
 RICHARD A. GUMP, JR.
Law Offices of Richard A. Gump, Jr., P.C.
One Galleria Tower, 13355 Noel Road, Suite 1940
Dallas, Texas 75240-6834
www.rickgumplaw.com

Rick Gump concentrates his practice in the human resource area of international law, with particular
emphasis on immigration and authorized employment. He has significant experience in strategic planning
for business and personal visas for international personnel and immigration related compliance and risk
assessment. Client work includes non-immigrant and immigrant visas related to investors, professionals,
and technical personnel, and immigration due diligence in mergers and acquisitions. He was selected by
fellow attorneys across the state as a “Texas Super Lawyer” in the area of immigration, as featured in
Texas Monthly Magazine from 2003-2007 and is recognized in the International Who’s Who of Business
Lawyers 2006 and Chambers America’s Leading Lawyers for Business 2006. He has also been selected by
his peers to be included in the 2008 edition of The Best Lawyers in America in the specialty of Immigration
Law. Mr. Gump is also listed in the Texas Lawyer’s 2007 Go- to Guide for top-notch lawyers.

Mr. Gump, an active speaker and published writer, is a member of the American Immigration Lawyers
Association (AILA), the International Bar Association, the International and Labor Employment Law
Sections of the American Bar Association and State Bar of Texas, the Federal Bar Association, and the
Dallas Bar Association. Mr. Gump handled the first employer sanctions case filed in the Southwestern
United States under the Immigration Reform and Control Act of 1986 ("IRCA"), and was co-counsel in
one of the largest civil/criminal settlements in worksite compliance history.

Mr. Gump, who has practiced law in Dallas since 1972, has served his profession as AILA Chair of the
liaison committee for the Texas Service Center of Bureau of Citizenship and Immigration Services, as
Chairman of the Texas Chapter of AILA, and currently as a member of the AILA Worksite Enforcement
Conference Committee. He is also a member of the World Affairs Council, the Dallas Committee on
Foreign Relations and the John G. Tower Center for Political Studies at Southern Methodist University.

Mr. Gump received his Bachelor of Arts in Government from the University of Texas in 1969 and his J.D.
from the University of Texas School of Law in 1972, where he was a member of Phi Delta Phi. He is
admitted to practice before all Texas state courts, the U.S. Department of Homeland Security, the U.S.
Department of Justice and the Bureau of Citizenship and Immigration Services.

Very active in Dallas community affairs, Mr. Gump has served as President of the Board of Directors of
Catholic Charities, the Downtown Dallas YMCA, and the Dallas Texas Exes. He was a recipient of the
2005 Dallas Texas Exes Outstanding Alumnus Award. He has served on the Boards of All Saints Catholic
Church, Northwood Club and the Serra Club. He is currently on the Executive Committee of the
Metropolitan Dallas YMCA and he is a member of the Salesmanship Club of Dallas.
 Mona Gupta
Gupta & Wiora, P.C.
14675 Midway Road, Suite #208
Addison, Texas 75001

phone: (972) 701-8200

mona@immigrationteam.com

BACKGROUND, EDUCATION AND PRACTICE

Mona Gupta is a founding partner in the Addison, Texas law firm of Gupta &
Wiora, P.C. Mona, principal shareholder, is a seasoned immigration attorney with
over 20 years of legal experience, and 15 years specifically in immigration. She
oversees the firm's family-based immigration, naturalization, and complex
employment-based cases. She is a 1984 graduate of the Southern Methodist
University School of Law in Dallas, Texas. Mona also holds a Bachelor's degree in
Mathematics from Southern Methodist University and a Master's degree in
Management and Administrative Sciences from the University of Texas at Dallas.
She is an active member of the American Immigration Lawyers Association
(AILA), and has served on AILA liaison committees for the Texas Service Center,
Dallas District Office, and the Department of Labor.
 Maurice Hew,Jr.
Assistant Professor
Texas Southern University
Thurgood Marshall School of Law
3100 Cleburne Street
Houston, TX 77004
713-313-7275
Mahew@tmslaw.tsu.edu

Maurice Hew, Jr., is currently an Assistant Professor at Thurgood Marshall School of

Law in Houston, Texas, where he directs the administrative (immigration) law clinic and
teaches immigration related doctrinal courses. He received his law degree from Loyola
University School of Law (New Orleans) in 1991. He is licensed in Texas and Louisiana. He is
admitted to several Federal Courts including the United States Supreme Court, and is Board
Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization.

Professor Hew is a frequent speaker and writer on Immigration and Nationality issues.
Professor Hew contributes substantial time representing lower income individuals pro bono
through the clinic and working on Houston Bar Association committees. He is an active
member of the American Immigration Lawyer’s Association and the Immigration Law
Professor’s Association.
 Harry J. Joe
Winstead PC
5400 Renaissance Tower
1201 Elm Street
Dallas, TX 75270

phone: (214) 745-5296

hjoe@winstead.com

Harry J. Joe leads the Immigration Law Group in the Labor, Employment and
Immigration Group at the Dallas based regional law firm of Winstead PC. Since
1980, he has been certified in Immigration and Nationality Law by the Texas
Board of Legal Specialization. A member of AILA since 1976, he has served as
Texas Chapter Chair; Member of the National Board of Governors and held
National Office. He has served as Adjunct Instructor of Law at SMU School of
Law from 1982-1994 and has published numerous articles and publications on
Immigration Law and has presented at numerous Immigration Law conferences
and seminars around the country over the past 30 years. He is recognized in Best
Lawyers in America, 1990 - present; Texas Super Lawyer; and Who's Who Legal
and Chambers USA. He received his Juris Doctorate Degree from Washington
University School of Law in St. Louis, and Bachelor of Arts from University of
North Texas. He has served on the UT CLE on Immigration and Nationality Law
Planning Committee since 1980.

Representative Practice

• Represents employers and foreign nationals in securing temporary and

permanent work visas including alien labor certifications, advance parole,
permits to reenter, and adjustment of status to permanent resident status
• Represents foreign nationals before the U.S. Consuls abroad in the prosecution
of visa applications for temporary and permanent visas
• Represents and counsels U.S. employers on compliance with I-9 Verification
of Employment Authorization practices and in defense of Worksite
Enforcement Proceedings and Administrative Civil Fine Proceedings
• Represents and counsels foreign investors in securing nonimmigrant treaty
investor and trader visas and permanent immigrant visas
• Represents foreign nationals and permanent resident aliens in immigration and
customs enforcement proceedings including removal and deportation before
the U.S. Immigration Courts, Board of Immigration Appeals, and the U.S.
District Courts, U.S. Court of Appeals and U.S. Supreme Court
• Represents permanent resident aliens in Naturalization Proceedings and
naturalized U.S. citizens in denaturalization proceedings in the U.S. District
Courts
 IRA J. KURZBAN
Biography

Mr. Kurzban is a partner in the law firm of Kurzban, Kurzban, Weinger & Tetzeli, P.A.,
of Miami, Florida. Ira Kurzban, has argued several cases in the United States Supreme
Court and has been recognized by Newsweek, Time and Esquire Magazines, as well as
the National Law Journal and the American Lawyer for his work on behalf of immigrants
and refugees. He is the author of Kurzban’s Immigration Law Sourcebook, the most
widely used one-volume immigration source in the United States.
 Rebecca R. Massiatte
Winstead PC
5400 Renaissance Tower
1201 Elm Street
Dallas, TX 75270

Phone: (214) 745-5733

rmassiatte@winstead.com

BACKGROUND, EDUCATION AND PRACTICE

Rebecca Massiatte is an attorney practicing in the Labor, Employment & Immigration Group at
Winstead PC in Dallas, Texas. Rebecca's practice focuses exclusively on immigration and
nationality law. She works with local and national corporate, private and non-profit
organizations, and individual clients in obtaining various immigrant and nonimmigrant visas,
including outstanding researchers and extraordinary ability and B, E, H-1B, H-2B, J, K, L, O, P,
R and TN-NAFTA visa classifications, as well as immediate relative processing and
naturalization proceedings.

Rebecca also advises clients concerning the foreign labor certification process (PERM), and the
implementation of effective immigration policies with regard to laws governing the employment
of foreign nationals in the U.S., including temporary and permanent hiring, reductions in force,
and compliance with employment eligibility verification and labor condition applications.

Rebecca's prior employment experience includes working as an immigration attorney with

Jenkens & Gilchrist P.C. and as a judicial law clerk for the San Antonio and Harlingen
immigration courts (EOIR) through the U.S. Department of Justice, Attorney General's Honors
Program. Rebecca currently serves as a member on the Laws Relating to Immigration &
Nationality Committee for the State Bar of Texas. She holds memberships in the American
Immigration Lawyers Association, including the Texas Chapter, and Dallas Hispanic Bar
Association and Association of Young Lawyers.

Rebecca has previously presented on issues relating to the PERM labor certification process,
nonimmigrant visa options for professionals, and religious workers in a variety of venues.

Rebecca is a graduate of Washington University School of Law and School of Social Work in St.
Louis, Missouri.

Dallas_1\5283144\1
999997-1662 10/13/2008
 PAUL PARSONS
ATTORNEY AT LAW
704 RIO GRANDE
AUSTIN, TEXAS 78701

(512) 477-7887
(512) 479-6903 (fax)
parsons@immigrate-usa.com
http://www.immigrate-usa.com

Board Certified, Immigration and Nationality Law

Texas Board of Legal Specialization

PAUL PARSONS, born Bartlesville, Oklahoma, July 21, 1951; admitted to bar, Texas, 1978; U.S.
Court of Appeals, Fifth Circuit, 1981; U.S. Supreme Court, 1982.

Mr. Parsons has practiced immigration law in Austin since 1978. He received a B.A. in Political
Science in 1973 from Oklahoma State University and a juris doctorate degree in 1977 from the
University of Texas School of Law. Mr. Parsons was appointed in 1992 by Governor Ann Richards
as Chairman of the Governor's Advisory Committee on Immigration. He is the recipient of the Sam
Williamson Memorial Award "for excellence in advancing the practice of immigration law."

Mr. Parsons served as a Director on the Board of Governors of the American Immigration Lawyers
Association (AILA) from 1990-1996 and is the former Chairman of the Texas-Oklahoma-New
Mexico Chapter. He was awarded the AILA Texas Chapter's Service Award in 1990 "for his
contributions to the practice of immigration law" and the National AILA Pro Bono Award for his
efforts to provide pro bono immigration representation. Mr. Parsons previously served as Chairman
of AILA's Committee on Consumer Protection.

Mr. Parsons served as Chairman of the State Bar of Texas Committee on Laws Relating to
Immigration from 1990 to 2005. He previously was a member of the American Bar Association's
Committee on Immigration Law. Mr. Parsons served as Chairman of the Examinations Committee
on Immigration for the Texas Board of Legal Specialization from 1986-1995, and as Chairman of
the Board s Immigration & Nationality Law Advisory Committee. He is a Life Fellow Member of
the Texas Bar Foundation and a Founding Fellow of the Travis County Bar Foundation. Mr.
Parsons was President of the Austin Chapter of the Federal Bar Association from 1994 - 1995. He is
an Attorney Consultant to the Government of Mexico. Mr. Parsons is fluent in Spanish and has been
listed in The Best Lawyers in America (Woodward/White) since 1996. He was assigned Martindale
Hubbell’s highest “AV” rating and selected as a “Texas Super Lawyer” in immigration law by Texas
Monthly. Mr. Parsons is listed in The International Who’s Who of Corporate Immigration Lawyers
and The International Who’s Who of Business Lawyers. He served as President of the Austin
Kiwanis from 1999 – 2000.
 Erica B. Schommer
Texas RioGrande Legal Aid
300 S. Texas Blvd.
Weslaco, TX 78596

(956) 447-4806
eschommer@trla.org

Erica Schommer is an attorney at Texas RioGrande Legal Aid (TRLA) where she
practices immigration and family law. She is the Team Manager of TRLA’s Human
Trafficking team. Erica’s immigration practice focuses primarily on representing people
in removal proceedings, as well as VAWA, U and T visa applications.

Erica holds a Bachelor of Arts in Political Science and International Relations from the
University of Wisconsin. She received a Master of Arts in Latin American Studies and a
J.D. from the University of Texas at Austin. Erica has a background in international
human rights and has worked on various human rights issues in Mexico, Guatemala, and
Costa Rica.

Erica is the Chair of Amnesty International’s Refugee Program Steering Committee and
is a frequent speaker at Amnesty events on the situation of migrants and refugees along
the Texas-Mexico border, an area she proudly calls home.
 CARL SHUSTERMAN

Mr. Shusterman is a 1973 graduate of the UCLA School of Law. He served as an attorney
for the U.S. Immigration and Naturalization Service (INS) until 1982 when he entered the
private practice of law. He is authorized to practice before the Supreme Court of
California, the Federal District Court, the U.S. Court of Appeals, Sixth, Seventh and
Ninth Circuits and the Supreme Court of the United States.

Mr. Shusterman is a former chairman of the American Immigration Lawyers Association

(AILA), Southern California Chapter and served as a member of AILA's national Board
of Governors (1988-97). He has chaired numerous AILA Committees, spoken at dozens
of AILA Conferences and has contributed a number of scholarly articles to AILA's
publications. He is a member of the American Bar Association.

Mr. Shusterman is a Certified Specialist in Immigration and Nationality Law, State Bar
of California. He has served as a member of the Immigration and Nationality Law
Advisory Commission for the State Bar. Each year since 2002, he has been voted as a
Super Lawyer in Southern California by his colleagues in the bar. For each of the past 10
years, Mr. Shusterman has been voted as one of the Best Lawyers in America . He is
listed in The International Who's Who of Corporate Immigration Lawyers 2007.

Mr. Shusterman is a frequent writer and lecturer on immigration law. His articles, letters
to the editor and quotes have appeared in such prestigious publications as the New York
Times, Washington Post, Canada's Globe and Mail, USA Today, Los Angeles Times,
Wall Street Journal, National Law Journal, California Lawyer, Los Angeles Lawyer,
Journal of the American Medical Association, Christian Science Monitor, Atlantic
Monthly, Computer World, Information Week, Issues in Science and Technology,
Variety, and numerous other publications. He has written for, and been quoted
extensively in, leading periodicals specializing in immigration law including Interpreter
Releases, Immigration Law and Procedure,Immigration Briefings, Inside Immigration,
Immigration Journal and U.S. Immigrant Magazine. In addition, he has appeared on
various television programs including NBC's Today Show, CNN's Headline News, the
Nightly News with Peter Jennings and on a wide variety of nationally syndicated radio
shows. Mr. Shusterman is featured as the Immigration Expert on the web site of
Immigration.About.com He also serves as a technical advisor to a number of television
shows including CSI.
Vanna Slaughter is Division Director for Catholic Charities of Dallas, Immigration and Legal Services, where
she has represented non-citizens in their immigration legal matters for more than twenty-three years. Ms.
Slaughter is accredited by the U.S. Department of Justice to representative non-citizens and immigrants
before the US Department of Homeland Security and the Board of Immigration Appeals. Ms. Slaughter is
an active member of the Catholic Legal Immigration Network (CLINIC) and provides regular training and
consulting services to CLINIC affiliate offices on the management of non-profit immigration programs. Ms.
Slaughter is avidly interested in immigration policy. She contributed as a participant at the First
Independent University in Warsaw, International Immigration and Naturalization Conference: Global
Problems on Immigration in Warsaw, Poland in June 2003. Ms. Slaughter has served as a non-attorney,
public member on numerous committees of the State Bar of Texas (SBOT), including: Laws Relating to
Immigration and Nationality Committee, the SBOT Region VI Grievance Committee and the SBOT
Planning Committee for the Immigration Law Institute. In March 2005 Ms. Slaughter was featured in the
“Sunday’s High Profile” of the Dallas Morning News for her work assisting immigrants in North Texas. In
May 2007 Ms. Slaughter was selected by the National Immigration Forum as a recipient of the “Keepers of
the American Dream” award. Prior to her work in the immigration field Ms. Slaughter worked in overseas
development for Catholic Relief Services in South America. Ms. Slaughter graduated from the University of
Texas at Austin. She received her Masters of Social Work Degree from Our Lady of the Lake University in
San Antonio. She is licensed by the Texas Board of Social Work Examiners as a Licensed Clinical Social
Worker (LCSW).
T. DOUGLAS STUMP is an attorney with more than 25 years of experience in a
practice focused on employment-based immigration law, complex deportation, litigation,
and family immigration matters. He maintains offices in Oklahoma City and Tulsa. Mr.
Stump is national secretary and member of the executive committee for the 11,500
member American Immigration Lawyers Association. He is the past president of AILA
Texas Chapter and an adjunct professor of immigration law. Mr. Stump is listed in Best
Lawyers in America for immigration law and was recognized as one of Oklahoma’s Top
50 Super Lawyers in Super Lawyers magazine. He is a frequent speaker and author on
immigration law topics.
Lee Terán is a clinical professor of law at St. Mary’s University School of Law and
directs the Immigration & Human Rights clinic. She is a 1975 graduate of the University
of Colorado School of Law. She has been licensed to practice since 1976, and since 1984
has been board certified by the Texas Board of Legal Specialization in the area of
immigration and nationality law. Formerly a co-director of the Lawyers Committee for
Civil Rights, Lee received the 1989 Pro Bono and Professional Responsibility Award
from the American Bar Association Section on Litigation, the 1990 Carol King Award
from the National Lawyers Guild Immigration Project, the 1992 Jack Wasserman
Litigation Award from the American Immigration Lawyers Association, the 1998
Distinguished Faculty Award from the St. Mary’s University Alumni Association, and
the 2004 Elmer Fried Teaching Award from the American Immigration Lawyers
Association.
Jacqueline L. Watson is an El Paso native and undergraduate alum of the University of
Texas at El Paso. She is a graduate of the University of Texas School of Law and has
practiced immigration law since 1999.

Jacqueline formerly worked with the Political Asylum Project of Austin (PAPA), a non-
profit organization representing immigrants and asylum seekers in Central Texas. In
2003, she joined Texas Lawyers Care, a department of the State Bar of Texas, where she
provided support services to pro bono attorneys and legal aid programs. She joined Hines
& Leigh, P.C. in April 2004. She has continued to volunteer with PAPA as a pro bono
attorney and mentor since 2003.

Jacqueline has been a frequent speaker on immigration law topics ranging from VAWA
self-petitions to relief from removal. She has presented at events sponsored by the State
Bar of Texas, the National Immigration Project, Volunteer Legal Services of Central
Texas, and the AILA Texas Chapter, among others. She has also authored articles for the
Texas Bar Journal, LegalFront, and publications of the Texas Council on Family
Violence. In addition, she is member of the Community Advisory Committee for the Bob
Bullock Texas State History Museum’s upcoming immigration exhibit, scheduled to open
in Austin in Spring 2009. Jacqueline is certified by the Texas Board of Legal
Specialization in Immigration and Nationality Law.
 PETER D. WILLIAMSON
SHAREHOLDER
DIRECT DIAL NO.(713) 658-2508
E-MAIL: peter.williamson@chamberlainlaw.com
Board Certified, Immigration and Nationality Law,
Texas Board of Legal Specialization

PETER D. WILLIAMSON
Univ. of Illinois, 1966, B.A.

Univ. of Texas, 1969, J.D.

Private practice of law, Houston, Texas, 1971 – 2007.

Chamberlain, Hrdlica, White, Williams & Martin, 2007 to present.

Board certified, Texas Board of Legal Specialization (TBLS), Immigration and Nationality Law (1979 –
present).

Member, College of the State Bar of Texas.

I am a member of the State Bar of Texas. I am licensed to practice before the U.S. District Courts,
Southern and Western Districts of Texas; U.S. Courts of Appeal for the 4th, 5th, 8th, 9th, 10th, 11th and D.C.
Circuits; and the U.S. Supreme Court. I have been counsel in approximately 20 appellate cases with
reported decisions. I maintained TBLS board certification in civil appellate law from 1987 – 1997.

I have been active in the American Immigration Lawyers Association (AILA), serving as chair of the
Texas chapter, on the national board of governors (1982 – present), and on the national executive
committee (1989 – 1996). I have served as national president of AILA, 1994 – 1995. AILA has a
membership of over 10,000 attorneys who practice in the field of immigration and nationality law.

My biography appears in Who's Who in America, Who's Who in the World, and Best Lawyers in
America. I have also been in Who's Who in American Law and Who's Who is the South and Southwest.
I maintain an av rating with Martindale-Hubbell law director.

I am a founding member of IMMLAW, the national consortium of immigration law firms.

I served as a member of the State Bar of Texas Immigration Law Committee from 1998 – 2005 of the
Advisory Committee in Immigration and Naturalization Law, Texas Board of Legal Specialization from
1998 – 2005. I was chair of this committee from 2003 – 2005.

I have appeared as a speaker or panelist in immigration-law topics at many seminars in past years,
including Albuquerque, Atlanta, Austin, Boston, Charlotte, Chicago, Dallas, Denver, El Paso, Fort Worth,
Houston, Los Angeles, Memphis, Miami, New Orleans, New York, Oklahoma City, Orlando,
Philadelphia, Phoenix, Richardson, Salt Lake City, San Antonio, San Diego, San Francisco, Santa Fe,
Seattle, Toronto, Tyler, Washington, and elsewhere. I have spoken on American immigration law topics
in Mexico, Canada, the Dominican Republic and Republic of the Philippines.

0630306.01
Edna Yang

Edna Yang has been the General Counsel for the Political Asylum Project of Austin, in
Texas since 2006 where she represents immigrant survivors of abuse, immigrant victims
of crime, and asylum seekers before the Immigration Service and the Immigration Court.
Edna began her work at PAPA in 2002 as the coordinating attorney for the Program
Representing Immigrant Survivors of Abuse, providing direct representation to
immigrants seeking relief under the immigration provisions of Violence Against Women
Act. Edna conducts training sessions for law enforcement officials and social service
providers about how to work with, and provide services to, immigrants in the community.
She also organizes outreach and educational sessions for immigrant members of the
community. From 2004 – 2005, Edna served on the Austin Commission for Immigrant
Affairs. She is a member in good standing of the State Bar of Texas. She is also a
member of the American Immigration Lawyers Association, the National Immigration
Project, and the National Lawyer’s Guild. She received her B.A. in Russian Language
and Literature and Political Science from the University of Michigan, and graduated with
a J.D. and a M.A. in International Studies, focusing on Peace and Conflict Resolution
from American University in Washington, DC.