Parole for International Entrepreneurs

Internation Entrepreneur Rule (IER) is now being implemented by USCIS following the December 1, 2017 ruling from the U.S. District Court for the District of Columbia in National Venture Capital Association v. Duke, case.  International entrepreneurs can now use American investments and enter through parole, a special permission, to set up and grow start up businesses.

IER was scheduled to take effect on 17th July 2017 but its implementation was delayed by a final rule until March 2018 by Department of Homeland Security.  The December 1st, 2017, Court decision vacated the delay rule.  This results in that the International Entrepreneur Rule be implemented forthwith and DHS is taking steps to follow the Court order.

Enterpreneurs can now apply for Parole as an immigration benefit.  Ususal parole rules apply i.e. IER parole would be granted on a case by case basis  for urgent humanitarian considerations or if U.S. derives significant public benefit.

Employment related Immigration cases

L-1 Specialized knowledge

Administrative Appeals Office overturns California Service Center decision.  Held: Specialized knowledge was a requirement for the position.  Beneficiary has that qualification for the position is fulfilled by showing that he holds a "unique combination of experience and knowledge" in petitioner's proprietary technology not available in the United States.  

The controlling regulation 8 C.F.R. 214.2(l)(1)(ii)(D) does not require that the beneficiary must be he one to have developed this product or technology.  L1 worker only must establish that he possess "special knowledge in the company's product and its application in the international market" or has "advanced level of knowledge or expertise" in the company's "process and prcedures."  WAC1014051163.

PERM: BALCA says University/ college professors do not just teach.

University profesors perform teaching functions even if work does not involve teaching, advising the students and evaluating their work in a classroom.  In the absence of defined requirements for teaching BALCA considered that in addition to offering instructions to students, most professors perform research and community service as part of their teaching job. 

Instructional coordinator in Library Science would be eligible for permanent employment certification as college or university teacher.

H1B worker can't be removed

Badrawi v. U.S, 07-cv-01074-JCH, filed 4/12/11

The Federal Dist. Ct. Connecticut held that when an H1B worker filed a timely extension petition he is not removable upon expiry of his lawful stay.

The Court held that under the Federal Regulations such worker is employment authorized for 240 days from the date of expiry of his status.  Fairnes and due process required that the foreign nationals stay within U.S. be considered authorized by the regulations. 

PERM filing Delay

Matter of Il Cortile Restaurant, decided on October 12, 2010

Business days redefined by the Board of Alien Labor Certification (BALCA) as inclusive of the weekends and holidays if employees work on those days.  Delay in filing Labor Certification for this reason should not result in denial.

Employer must bear the costs of filing H1B petition

Reimbursement of these fees and costs from employee is impermissible deduction.  DeDios v. Medical Diagnostic Systems, Inc.

H-1B Employment Conditions Violation - Settlement Agreement

The employer violated Code Federal Regulation provisions by failing to pay H1B workers required prevailing wage and by demanding that the H1B employee pay penalty for employment termination. 

Employer settled at the Wage and Hour Division of U.S.DOL.  Award: Civil Penalty and back wages.

Benching: Employer to pay Backwages to the H-1B Worker

Wage and Hour division vs. Itek Consulting, Inc., 2008-LCA-00046, decided May 6, 2009.

         In an impermissible benching claim the Administrative Law Judge holds that employer is liable to pay back wages where employee was not offered work on the day he reported for not having the social security number and did not report to office thereafter.  An employer is required to pay the LCA wages from the date the H-1b enters into employment and is liable to pay backwages if the failure to offer employment was due to an employment related reason and not due to the failure of the H-1B worker. 

         Instances where the nonproductive employment is due to reasons not related to employement: where the employee's inability to work is because employee is visiting places or pregnant or incapacitated due to accident.

         Employers must cooperate with the investigator who may assess penalties for failure to cooperate.  Read more ...

Delay in bringing an impermissible Benching claim

Gupta v. Jain Software Consulting, Inc., ARB No. 05-008, ALJ No. 2004-LCA-39 (ARB Mar. 30, 2007)

         Benching is a continuing violation says the Administrative Review board and held that the limitation period for benching starts on the latest date on which the employer fails to perform an action or fulfill a condition. 

        Actions for impermissible benching could be brought against the employer within 12 months from the time the employment relationship terminates.



 ID Theft: U.S. Supreme Court

Flores-Figueroa v. U.S., 08-108, decided May 4, 2009

A federal statute prohibiting "aggravated identity theft" requires "proof of knowledge" that the identification information used by the offender was not just fake but in fact belonged to another person.  18 U.S.C. section 1028A(a)(1) 

       The 9th circuit vacated and dismissed on October 20, 2008, its earlier order that held that a foreign national who gains entry into the U.S. by misrepresentation is ineligible for adjustment of status because the person was not admitted. 

        The published opinion in the case earlier reported in 521 F.3d 1068 (9th Cir. 2008) stands vacated following a joint motion.



Fraudulent entry

Orozco vs. Mukasey. 

        The 9th circuit vacated and dismissed on October 20, 2008, its earlier order that held that a foreign national who gains entry into the U.S. by misrepresentation is ineligible for adjustment of status because the person was not admitted. 

        The published opinion in the case earlier reported in 521 F.3d 1068 (9th Cir. 2008) stands vacated following a joint motion.



 Removal/ Deportation

BIA on travel with Advance Parole

The Arrabally case, 25 I&N Dec. 775 (BIA 2012)

Trip abroad upon grant of Advance parole by itself does not render the foreign national inadmissible that the adjustment of status should not be denied on this basis.  This case was decided on August 16, 2012.

Statements elicited at the Port of Entry can be used at the removal proceedings 

Montoya and Montoya Vs. Mukasey, 2nd Cir., August 2008.

       The federal court of appeal, second circuit, holds that questioning of the foreign nationals at the port of entry is not a seizure. 

        Although the foreign nationals arrived by the airplane and could not have left the country without proper arrangements nor were they allowed to cross the entry point and enter the U.S. without satisfactorily answering officer's questions because the officer was standing in front of them, the Circuit court held that such questioning was not seizure under the Fourth Amendment of the U.S. Constitution. 

        The Fourth Amendment prevents use of statements against the person making them if the statement was obtained during an unreasonable stop.  On appeal, the petitioners argued that their statements should be suppressed because it was obtained following an eggregious stop based solely on their race and nationality.

       The Court said that there was no use of force or threat of force nor did the officials assert their authority and held that since there was no seizure, the statements obtained at the port of entry were admissible in the removal proceedings.