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Legal Citations for ILW.COM's Seminar
"Paparelli on Cutting-Edge Issues in Business Immigration Practice"
Part 2 held on September 24, 2002

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I. Concurrent Filing of I-140 Petitions and AOS Applications

  • Concurrent Filing Regulation published on July 31, 2002 at page 49561 in the Federal Register, amending 8 CFR 204, 245 and 299 (LI
  • I-485 Standard Operating Procedures for I-485 Adjustment Applications dated 9/28/01 [May have been superseded by a later SOP, particularly with regard to actions taken in connection with I-140 denial and corresponding denial of I-485, I-765, and I-131.]
    • Almost 300 Pages of Text - A veritable treasure trove of information on procedures, adjudication standards, duties of INS contractors and CAOs, and valuable nuggets of information.
    • Very useful for an internal training manual in your law firms for attorneys, paralegals and staff.
    • Caveat: Not binding on the U.S. Government -
      • Still a statement containing factual representations and may well carry persuasive authority in a given case.
      • Something you might want to show to a client or a federal district court judge.
  • INS Adjudicator's Field Manual obtained through FOIA by Eugene Flynn and available from AILA - Updated through Feb, 2001.
  • May 9, 2000 INSHQ Memorandum entitled "Transferring Section 245 Adjustment Applications to New or Subsequent Family or Employment-Based Immigrant Visa Petitions".
    • Very helpful in developing creative options for clients under Adjustment of Status Portability.
    • Establishes the principal that AOS applicant need to work for the sponsoring employer during the pendency of the I-48 application.
    • Also provides a recognition by the Service of the concept that AOS applications may "Float", i.e, may suspend in air for some uncertain period of time without the immediate benefit of a supporting I-140 petition.

II. Employment for E & L Spouses

Introduction

On January 16, 2002, President Bush signed into law two pieces of immigration legislation that authorize open-market employment for spouses of E and L nonimmigrants. (These provisions do not allow for the employment of the dependent children of the principal E or L nonimmigrant). The EAD card will be issued for a period not to exceed two years (or the period of admission/status of the principal spouse ("principal"), if less).

H.R. 2277 (Pub. L. No. 107-124) provides work authorization to the spouses of E visa holders. E visas are granted to traders and investors from countries that have trade agreements with the U.S. The law currently allows spouses of these professionals to accompany them for the length of their assignment, but bans them from working in the US. As a result, spouses are forced to put their own careers on hold for the duration of the visa holder's assignment.

H.R. 2278 (Pub. L. No. 107-125) provides work authorization to the spouses of L visa holders and reduces the required period of prior continuous employment for certain intracompany transferees. Specifically, H.R. 2278 amends INA 214(c)(2)(A) to provide that, in the case of an alien seeking admission under 101(a)(15)(L), the required one-year period of continuous employment is reduced to six months if the importing employer has filed a blanket petition and met the requirements for expedited processing of aliens covered under such petition.

These two pieces of legislation have been implemented by INS HQ memo issued on February 22, 2002 signed by Deputy Executive Associate Commissioner William Yates. (HQ 70/6.2.5,6.2.12).

The procedures for applying for E and L spousal employment are listed on the outline below:

  1. The Application Procedure: What & Where to File:
    1. What: Form I-765, Application for Employment Authorization Document and (see sample I-765 & INS cover letter);
      1. Filing fee: $120.00 and G-28, if applicable. Staple check to G-28.
      2. Two (2) Green card type photos (see attached photo specification sheet)
      3. If no G-28 is attached, staple the check and photos onto the application. Put the photos in a small envelope.
      4. Copies of the Applicant's current I-94 card, I-797A approval notice, visa stamp, and passport ID page.
      5. Copies of the Principal's current I-94 card, I-797A approval notice, endorsed Form I-129S from Principal's blanket L-1 entry, if applicable, visa stamp, and passport ID page.
      6. Copy of the official marriage record with a certified English translation on top.
      7. Please note: I-765, Signature/Fingerprint cards are not required to be submitted anymore.
    2. Where: E or L spouses are to apply for an Employment Authorization Document ("EAD card") from an INS Service Center having jurisdiction over the Principal's residence.
      1. L spouses: Filed at the INS Service Center having jurisdiction over the Principal's residence.
      2. E spouses:
        1. If Principal's E is under CSC & NSC jurisdiction, then FedEx to CSC.
        2. If Principal's E is under TSC & VSC jurisdiction, then Express Mail to TSC. Express Mail Address: USINS, TSC, P.O. Box 851041, Mesquite, TX 75185-1041

  2. Form I-765, Instructions:
    1. The form is downloadable from INS' official website at: http://www.immigration.gov/graphics/formsfee/forms/i-765.htm The Pdf format contains all instructions pages. Go directly to the last page to obtain the form.
      1. Please see the attached sample Form I-765 for special notes.
    2. Eligibility Category (see Item 16 on the form):
      1. For E spouses: (a)(17)( )
      2. For L spouses: (a)(18)( )
    3. Type "SPOUSE OF E (or L) NONIMMIGRANT" in the space available in Item 16 for identification of E or L-based Spousal EAD applications.
      1. Please note that for AOS-based EAD card applications, the code is (c)(9)( ).
    4. Important information about signing Form I-765. INS has confirmed that it will no longer require a fingerprint/signature card with an EAD application. INS will produce the EAD without the signature card by scanning the signature on the submitted Form I-765. For the scanning to be successful, applicants should sign the Form I-765 legibly, keep the signature small, and sign in black ink.

  3. After the Application is Filed:
    1. Processing Time: The INS has 90 days from the date that the INS Service Center receives the Form I-765 to adjudicate the application. Although the INS Service Center will issue a receipt, the receipt is not valid for work authorization. The E or L spouse cannot legally work until s/he receives the actual EAD card.
      1. The EAD card and approval notice will be sent to the applicant's home address.
      2. Or c/o Company name for delivery
    2. Address Change: See below for information regarding the notification of address change if you cannot reach an INS officer at the hotline #s mentioned in #3 of this section.
      1. CSC: Fax an Address Change Sheet (copy attached). OR Submit Form G-731C
      2. NSC: FedEx Form G-731N to: US/INS, NSC, 850 "S" St., Lincoln, NE 68508.
      3. TSC: Express Mail Form G-731T to: USINS, TSC, P.O. Box 851041, Mesquite, TX 75185-1041
      4. Fax (see attached sample)
      5. VSC: FedEx: FedEx Form G-731V to: USINS, VSC, 75 Lower Welden St., St. Albans, VT 05479-0001
    3. Status Inquiry: Applicants may call the INS Service Center to check the status of your application if the EAD card is not received within the approximate processing time indicated on the applicant's INS Receipt Notice.
      1. Telephone Numbers are (automated hotline service):
        1. CSC: (949) 831-8427
        2. NSC: (402) 323-7830
        3. TSC: (214) 381-1423
        4. VSC: (802) 527-4913
    4. In the event that the applicant does not receive the EAD card within 90 days, s/he can go to an INS District Office and obtain an "Interim" EAD card. An Interim EAD card is usually valid for 240 days.

  4. The "Interim" EAD Card Application Procedure:
    1. Where to file: For more information regarding INS District Offices, please visit the INS website below at: http://www.immigration.gov/graphics/fieldoffices/statemap.htm
    2. What to bring:
      1. Newly completed Form I-765 and a copy of the INS receipt notice.
      2. All documents needed in the initial EAD application with the INS Service Center EXCEPT filing fee and photos.

  5. Concurrent Filing of I-765 with E/L extensions:
    1. An I-765 application may be submitted together with a regular E/L extension petition. The application will get separated from the original E/L extension petition, so please attach a copy of the signed INS cover letter on top of the I-765 application package.
    2. See sample INS cover letter.
    3. Currently, Premium Processing is not available for EAD applications.

III. Citations For L Blanket Issues:

For General Issues and In Depth Issues Related to the L Blanket see:

  • "Global Warming", Alan Tafapolsky and A. James Vazquez-Azpiri, in Immigration Briefings, No. 99-4 (April 1999) and "Cover Me" Alan Tafapolsky, A. James Vazquez-Azpiri, Charles Foster & Stephen Yale-Loehr, in AILA Immigration Law Handbook, AILA National Conference edition 2000-2001.
  • See also INS HQ memo issued on February 22, 2002 signed by Deputy Executive Associate Commisioner William Yates (HQ 70/6.2.5,6.2.12) lowering qualifying experience period for L Blanket Companies from one year to 6 months.
  • See also INS HQ memo issued by Acting Assistant Commisioner for Adjudications, Thomas Cook, on L Blanket Petitions issued on February 13, 2001. (HQ 70/6.2.9)
  • See also Correspondence between Alan Tafapolsky and Thomas W. Simmons, Branch Chief , Business & Trade Branch, INS and Alan Tafapolsky (on file with Alan Tafapolsky) allowing a person to enter on a Blanket Petition and transfer to an entity on an amended Blanket Petition as long as duties remain virtually, the same. (Undated).
  • Due diligence checklist (courtesy of Alan Tafapolsky)
  • Paparelli, A. Tafapolsky, T. Chiappari, S. Cohen, and S. Yale-Loehr, "It Ain't Over Till It's Over: Immigration Strategies in Mergers, Acquisitions and Other Corporate Changes," Bender's Immigration Bulletin, (Oct. 1, 2000 and Oct. 15, 2000)
  • Y. Robertson, "Avoiding the Abyss: H-1B Strategies When Facing Reductions in Force," 2 Immigration & Nationality Law 76 (AILA 2001-02)
  • A. Tafapolsky, A. Paparelli, A. Vazquez-Azpiri and S. Wehrer, "Thriving on Change: How to Solve Immigration Problems in Merger & Acquisition Deals," New Rules for the New Millennium (AILA 2001)
  • A. Paparelli and S. Wehrer, "Update on Mergers and Acquisitions: Congress Toys With the H-1B," 2 Immigration & Nationality Law 1 (AILA 2001-02)
  • L. Grossman and S. Cohen, "The Effect of Changed Circumstances on H-1B Nonimmigrant Workers," Immigration and Nationality Law Handbood, Vol. II (AILA 1997-1998)
  • S. Mailman and S. Yale-Loehr, "More on the Impact of Corporate Reorganizations on H-1B Workers," N.Y.L.J. (Apr. 23, 2001)
  • M. Turansick and J. Guzman, "Corporate Restructuring & H-1Bs Under the New Visa Waiver Permanent Program Act," New Rules for the New Millennium 121 (AILA 2001)
  • Angelo Paparelli, Daryl Buffenstein & Robert Banta: Evading "the Slings and Arrows of Outrageous Fortune": The Immigration Consequences of Mergers, Acquisitions and Other Business Changes, 93-11 Immigr. Briefings (Nov. 1993)


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