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Legal Citations for ILW.COM's Seminar
"Paparelli on Cutting-Edge Issues in Business Immigration Practice"
Part 1 held on August 27, 2002

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I. Exemption from Labor Certification

  1. EBI Priority Workers
    1. Extraordinary Ability - EBI-I
      1. Statute: INA 203(b)(1)(A) 8 U.S.C. 1153 (b)(1)(A)
      2. Regulatory criteria: 8 C.F.R 204.5(h)
      3. National (vs. international) acclaim sufficient: Buletini v. INS, 860 F. Supp. 1222, 13 Immigration Rep. A3-103 (E.D. Mich 1994)
      4. Matter of Price, 20 I&N Dec. 953, 14 Immigration Rep. B1-9 (AAU 1994) [10th ranked golfer in world clearly qualifies]
      5. "Hockey Cases": Muni v. INS, 891 F. Supp. 440 (N.D.Ill.1995), Grimson v. INS, 934 F. Supp. 965 (N.D.Ill.1996). These cases are particularly important for discussion of "field" in which acclaim is alleged (e.g., not necessarily hockey in general, but position of "enforcer" in pro hockey).
      6. Opinion concluding that lawyers are neither within the arts nor the sciences for EBI-I purposes, Legal Opinion, Aleinikoff, General counsel, INS, CO 203-P (January 20, 1995), reprinted in 72 Interpreter Releases 184 (January 30, 1995).
      7. Comparison with O-1 non-immigrant classification: Memoranda of California Service Center entitled "Critical Analysis of the Elements that make up EI-I stature and E-I-I vs O-1." 78 Interpreter Releases 885,895 (May 25, 2001)
    2. Outstanding Professors and researchers - EBI-II
      1. Statute: INA 203 (b)(1)(B), 8U.S.C. 1153 (b)(1)(B)
      2. Regulatory Criteria: 8 C.F.R. 204.5 (i)
    3. Multinational Managers and executives - EBI-III
      1. Statute: INA 203 (b)(1)(c), 8 U.S.C. 1153 (b)(1)(c).
      2. Regulatory Criteria: 8 C.F.R. 204.5(j)
      3. Recent amendment to L-1 reduction of blanket eligibility to 6 months: INA 214 (c)(2)(A), 8 U.S.C. 1184 (c)(2)(A). Note: To date,there has been no corresponding amendment to INA 203(b)(1)(c).
      4. Advisory opinion (in L-1 context) barring "de facto" or "out sourced" personnel whose managerial or executive duties are directed by overseas affiliate and would otherwise qualify for L-1 (and, by implication, EBI-III) classification: Letter Hernandez, Acting Branch Chief, Business and Trade Services, (Hg 70/6.2.12) (February 14, 2000), reprinted in 77 Interpreter Releases 294-95 (February 14, 2000).
  2. EBII
    1. Statute: INA 203(b)(2), 8U.S.C. 1153(b)(2).
    2. Regulatory Criteria: 8 C.F.R. 204.5 (K)
    3. Precedent decision (National Interest Waiver): Matter of New York State Department of Transportation (NYSDOT), 22 I&N Dec. __ 19 Immigration Report B2-93, Interim Dec. No. 3363 (August 7, 1998).
    4. Memorandum on EBII eligibility as Advanced Degree Professional: Memorandum by Michael D. Cronin, INS Acting Assoc. Commissioner Programs, and William R. Yates, Department Executive Assoc. Commissioner, Field Operations (March 20, 2000), included as an appendix to INS Notice, 65 Fed. Reg. 41,095 (July 3, 2000) (detailing opportunity to file untimely motions to reconsider EB-II denials and permitting filing of adjustment applications (concurrently) in selected cases). See also Chintakuntla v. INS, No. C99-5211 MMC (N.D. Cal May 4, 2000)
    5. Schedule A, Groups I and II (Pre-certification) Regulatory Criteria: 20 C.F.R. 656.22

II. Assessing Appropriateness of Concurrent Filings

  1. Probable Application of 245(i) standard "Approvable When Filed" criteria:
    1. Definitions of frivolous: 8 C.F.R 245.10(a)(3) and 8 C.F.R. 208.20
    2. 245(i) eligibility criteria: 8 C.F.R. 245.10 and Memoranda by Robert L. Bach, INS Exec. Assoc. Commissioner, Accepting Applications for Adjustment of Status Under Section 245(i) of the INA, File No. Hq 70.23 I-P, Hq 70/8-P (April 14, 1999), reprinted in 4 Bender's Immigration Bulletin 464 (May 15, 1999), and letter of Pearl Chang, Director INS Residence and Status Branch to attorney H. Ronald Klasko, File No. Hq and 70/23.1 (May 15, 2001) discussed and reproduced at 78 Interpreter Releases 931, 982 (June 4, 2001).
III. Downside Risks and Unresolved Issues

  1. Will NIV Status be lost if I-140, and ultimately I-485, are denied
    1. Matter of Hosseinpour, I&N Dec. 191 (BIA 1975), confirming possibility that even those NIV status requiring bona fide non-immigrant intent and unrelinquished foreign domicile might, if extended during pendency of A/S remain valid post-245 denial.
    2. Maintenance of H-1 or L-1 status after return of adjustment applicant on advanced parole: See amended 8 C.F.R. 245.2(a)(4)(11)(c), allowing travel by H or L during A/S without advanced parole, and field memorandum by Michael D. Cronin, INS Acting Commissioner, Programs, File No Hq ADJ 70/2.8.6, 2.8.12 10.18 (May 16, 2000), reprinted in 5 Bender's Immigration Bulletin 528 (June 15, 2000), allowing extension of H or L status even after parole admission.
    3. May EAD be extended if I-140 denied? cf 8 C.F.R. 274(a).12(c)(a), allowing extension of work authorization if timely motion to reopen/reconsider under 8 C.F.R. 103.3 is filed and pending. Also see I-485 SOP Manual, pp.5-7, which confirms that concurrently filed I-485 should not be denied while an appeal of the I-140 filed with it is pending. Note: I-140 denial notices advise that such denial is not final until appeal or motion is adjudicated.

IV. Other Citations

  • BCIS website for the Operations Instructions, although obsolete, useful for background.
  • "A section 245 application and visa petition filed concurrently shall be considered simultaneously at the time of the required section 245 interview." OI 245.1a
  • Immigration Act of 1990, P.L. 101-649
  • Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA, P.L. No. 104-208)
  • Waivers for grounds of inadmissibility:
    • Section 245(i)
    • Section 245(k)
    • Section 212(h)
    • Section 212(i)