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
II. Assessing Appropriateness of Concurrent Filings
- EBI Priority Workers
- Extraordinary Ability - EBI-I
- Statute: INA 203(b)(1)(A) 8 U.S.C. 1153 (b)(1)(A)
- Regulatory criteria: 8 C.F.R 204.5(h)
- National (vs. international) acclaim sufficient: Buletini v. INS,
860 F. Supp. 1222, 13 Immigration Rep. A3-103 (E.D. Mich 1994)
- Matter of Price, 20 I&N Dec. 953, 14 Immigration Rep. B1-9 (AAU
1994) [10th ranked golfer in world clearly qualifies]
- "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
- 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).
- 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)
- Outstanding Professors and researchers - EBI-II
- Statute: INA 203 (b)(1)(B), 8U.S.C. 1153 (b)(1)(B)
- Regulatory Criteria: 8 C.F.R. 204.5 (i)
- Multinational Managers and executives - EBI-III
- Statute: INA 203 (b)(1)(c), 8 U.S.C. 1153 (b)(1)(c).
- Regulatory Criteria: 8 C.F.R. 204.5(j)
- 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).
- 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
EBI-III) classification: Letter Hernandez, Acting Branch Chief, Business
Trade Services, (Hg 70/6.2.12) (February 14, 2000), reprinted in 77
Interpreter Releases 294-95 (February 14, 2000).
- Statute: INA 203(b)(2), 8U.S.C. 1153(b)(2).
- Regulatory Criteria: 8 C.F.R. 204.5 (K)
- 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).
- 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
Reg. 41,095 (July 3, 2000) (detailing opportunity to file untimely motions
to reconsider EB-II denials and permitting filing of adjustment
(concurrently) in selected cases). See also Chintakuntla v. INS, No.
C99-5211 MMC (N.D. Cal May 4, 2000)
- Schedule A, Groups I and II (Pre-certification) Regulatory Criteria:
20 C.F.R. 656.22
III. Downside Risks and Unresolved Issues
- Probable Application of 245(i) standard "Approvable When Filed"
- Definitions of frivolous: 8 C.F.R 245.10(a)(3) and 8 C.F.R. 208.20
- 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
Hq 70/8-P (April 14, 1999), reprinted in 4 Bender's Immigration Bulletin
(May 15, 1999), and letter of Pearl Chang, Director INS Residence and
Branch to attorney H. Ronald Klasko, File No. Hq and 70/23.1 (May 15,
discussed and reproduced at 78 Interpreter Releases 931, 982 (June 4,
- Will NIV Status be lost if I-140, and ultimately I-485, are denied
- 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.
- 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
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.
- 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
SOP Manual, pp.5-7, which confirms that concurrently filed I-485 should
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 http://www.immigration.gov 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)
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