The Marriage Fraud Interview

AMERICAN IMMIGRATION LAWYERS ASSOCIATION AN IMMIGRATION DIALOGUE

MAY/JUNE 2011 VOICEVol. 2 Issue 3 The Marriage Fraud Interview

WITH GREAT POWER ... ADVANCE COPY: How to Be a Responsible A Peek at AILA’s New Courtroom Hero Waivers and Business books AILA InfoNet Doc. No. 11051171. (Posted 05/11/11) 2011 AILA ANNUAL CONFERENCE Manchester Grand Hyatt San Diego, CA

Over 115 Substantive Learning Sessions Available More than 375 Expert Speakers l Enhance Your Practice and Knowledge Earn CLE Credits l Network with Colleagues aila SAN DIEGO June 15–18, 2011

Surf. PROGRAM TRACKS Fundamentals Track Sand. Business Track Family Track Federal Court Litigation Track CLE. Immigration Court/Vulnerable Populations Track Global Migration/Consular Processing Track Criminal Track Law Practice Management Track Government Open Forums

SPECIAL EVENTS & ACTIVITIES Conference Kick Off New Attendees Orientation President’s Installation Hot Topics Strategy Session with AILA Superstars 23 Brown Bag Lunches THIS IS THE PREMIER Membership Meeting Awards Ceremony & Presidents Reception IMMIGRATION LAW CONFERENCE New Members Division Reception Taste of San Diego YOU CAN’T AFFORD TO MISS! American Immigration Council Reception Saturday Night Events REGISTER NOW! SPECIALIZED NETWORKING EVENTS Speed Networking In-House Counsel Networking Session OR DOWNLOAD THE FORM Got a Job/Need a Job Networking Event Paralegal Networking Session NO HIKE IN REGISTRATION RATES IN 2 YEARS! Solo Networking Session AILA InfoNet Doc. No. 11051171. (Posted 05/11/11) NETWORK u IN THE SUN A message from AILA’s Director of Education Grace Akers Woods, u highlighting the events at our annual conference in sunny San Diego!

EXECUTIVE EDITOR EDITOR-IN-CHIEF Tatia L. Gordon-Troy Crystal Williams

GRAPHIC DESIGNERS Bradley Amburn, Robert Bequeaith

CONTRIBUTORS Grace Akers Woods, James Austin, Daryl Buffenstein, Bo Cooper, Andrew Johnson, Jeanette Kain, Cletus Weber

VOICE (ISSN: 2157–4138), published online 6 times annually, is the official member magazine of the American Immigration Lawyers Association, Suite 300, 1331 G Street, NW, Washington, DC 20005

NATIONAL OFFICERS David W. Leopold, President Eleanor Pelta, President-Elect; Laura Lichter, First Vice President T. Douglas Stump, Second Vice President; Leslie Holman, Treasurer Victor Nieblas Pradis, Secretary; Bernard P. Wolfsdorf, Immediate Past President Crystal Williams, Executive Director

PERIODICALS REVIEW BOARD Dan Berger, Barbara Bower, Dagmar Butte, Susan Cohen, Neil Dornbaum, Anna Gallagher, Regina Germain, Jane Goldblum, and Rita Sostrin

For reprint requests, editorial comments, letters to the editor, and submission of articles for consideration, e-mail [email protected].

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To order AILA publications, visit ailapubs.org. For general AILA publications-related questions, e-mail [email protected] or call 1-800-982-2839.

DISCLAIMER: AILA’s VOICE features and departments do not necessarily represent FOLLOW AILA ON TWITTER, the views of AILA, nor should they be regarded as legal advice from the association or authors. AILA does not endorse any of the third-party products or services FACEBOOK, AND LINKEDIN advertised in VOICE, nor does it verify claims.

AILA InfoNet Doc. No. 11051171. (Posted 05/11/11) MAY/JUNE 2011 3 CMB REGIONAL CENTERS, LLC Federally Designated Regional Centers

One of the most difficult tasks you will encounter as an immigration attorney working with an EB-5 client is determining how far you should go in assisting them in the selection of a specific Regional Center. The following checklist will serve as a handy guide for what we see as key considerations in your client’s Regional Center investment decision. EB-5 Regional Center Comparison Checklist Other Regional Centers CMB 3 CMB: Has 100% success with over 180 I-526 petition approvals 3 CMB: Clients have 100% success in obtaining their conditional Green Cards. 3 CMB: Investors have 100% success at the I-829 petition (permanent green card) with 3 approvals on multiple partnerships 3 CMB: Investments have an easy to understand and clearly defined exit strategy. 3 CMB: Investments are located in an easily identified targeted employment area (TEA) 3 CMB: Requires client’s to have independent counsel that serve as their advocate 3 CMB: Investments contain financial transparency 3 CMB: Has over 14 years of experience 3 CMB: Has nine fully subscribed partnerships containing multiple completed projects 3 CMB: Currently has over 500 investors 3 CMB: Investments contain an I-829 reviewed and proven job creation methodology 3 CMB: Has highly experienced and knowledgeable staff 3 CMB: Has the ability to communicate in multiple languages 3 CMB: Client base comes from around the world (not just one country) CMB: Has governmental involvement in all investments 3 CMB: Investments contain a fundamental structure that is focused on the goals of the Investor and not just those of the Regional Center

CMB I-829 Approvals Regional Center TEA’s and do they qualify. The primary All CMB EB-5 investments occur in true targeted employment areas goal of every (TEA). You and your clients can easily verify that the unemployment EB-5 investor data supporting our TEA’s is real and not the manipulation of data is to obtain in order to make our regions qualify. High unemployment or rural permanent are the focal points of the $500,000.00 investment threshold. CMB residency in understands that your clients would pay the ultimate price (I-526 or the United I-829 denial) if the TEA information that was relied upon was not States. CMB has accurate. Our California project regions qualify with not only a state I-829 approvals authorization letter but data to back-up that the TEA is truly 150% of for multiple the national unemployment rate with no slight of hand from anyone. investors within our first three San Bernardino 18.20% Unemployment investment Rialto 17.40% Unemployment partnerships. El Monte 15.10% Unemployment Investors from our fourth partnership become North Highlands CDP 19.30% Unemployment eligible to file for their permanent Green Cards in June, 2011. (March 25, 2011 California EDD www.labormarketinfo.edd.ca.gov)

Midwest Executive Offices: Telephone: 309-797-1550 4507 49th Avenue, Moline, IL USA 61265 Facsimile: 309-797-1655 Email: [email protected] InfoNet Doc. No. 11051171. (Postedwww.cmbeb5visa.com 05/11/11)

CONTENTS MAY-JUNE 2011 // VOL. 2 ISSUE 3

DEPARTMENTS

7 NEWSLINK Highlights from Around the Globe 9 FACE OF AILA Honoring Anthony (Tony) Weigel 10 UNSOLICITED ADVICE “8 Steps to Being a Hero Without Getting Your Client and Yourself Into Trouble” by Cletus Weber

SPOTLIGHT 12 COVER >> “How to Increase the Organization and Efficiency of a 3-Year-Old Firm” STORY Part 2 of 3 by Andrew Johnson 16 “The Nuances of the 29 INTER ALIA AIC’s American Heritage Awards; AILA’s Marriage Fraud Interview” Executive Committee Visits the White House; Preparing your clients for a spouse petition Meet the AILA EB-5 Committee interview is a simple procedure. However, the more a couple’s marital relationship deviates from the 30 WHAT’S HAPPENING! officer’s imaginary norm, the more likely it will Get the 4-1-1 on AILA Members undergo additional scrutiny. Here are some practice tips to help your client win petition approval. by James W. Austin

Obviously we were FEATURE all disappointed that it didn’t pass. They’re 22 SNEAK PEEK: The Waivers Book and wonderful students. Business Immigration: Law & Practice” “ FROM WAIVERS: “The Impact It’s really undebatable that they should be of Matter of Jean on Waivers for Refugees and Asylees” here and continue by Jeanette Kain their education. We need an educated FROM BUSINESS: “TN vs. H-1B: How Trade NAFTA workforce and these Measures Up to the Popular kids would be that.” H-1B Classification” —Actress Eva Longoria, by Daryl Buffenstein speaking after meeting with and Bo Cooper BY BRADLEY AMBURN SHUTTERSTOCK/ILLUSTRATION COVER: SHUTTERSTOCK BELOW: ABOVE, President Obama on DREAM AILAand InfoNet immigration Doc. reform. No. 11051171. (Posted 05/11/11) JANUARY/MFEBRUARYAY/JUNE 2011 5 ESI Small AILA ad layout 080113 1/21/08 7:38 PM Page 1

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Want Your Ad Here? Contact [email protected] for availability and rates! AILA InfoNet Doc. No. 11051171. (Posted 05/11/11) 6 VOICE newslink [ h i g h l i g h t s f r o m a r o un d t h e g l o b e ]

Five Ways Osama Bin Laden “It is a mistake for states to try Changed the Immigration Landscape to do this piecemeal. We can’t [ Southern California Public Radio [ have 50 different immigration laws around the country. Arizo- The direct and indirect na tried this and a federal court repercussions that the late already struck them down.” Osama bin Laden’s actions —U.S. President Barack Obama in masterminding the terror- ist attacks of September 11, Obama: States Cannot Have Their 2001 have had ... are far too Own Immigration Laws [ FOX News Latino [ many to mention in a short list. The attacks led to the “We’re going back dissolution of the federal to some day we immigration infrastructure at the time, to several leg- don’t want to see, islative and policy changes, where people can and to an increasingly en- be pulled out of a forcement-heavy and divi- car because they sive immigration climate. Alabama Close to Enacting Arizona- look like some- Style Illegal Immigration Crackdown body.” —Ala. Sen. [ Associated Press via FOX News [ Rodger Smitherman SHUTTERSTOCK

“The American Civil Liberties Union and the National Class-Action Lawsuit Says Utah Immigration Law Center ... brought the class-action Immigration Law Violates Civil Rights lawsuit claiming that the Utah statute violates federal [ The New York Times [ civil rights and immigration law in ‘myriad ways,’ mainly by interfering with immigration enforcement that is generally reserved for federal authorities.”

AILA InfoNet Doc. No. 11051171. (Posted 05/11/11) MAY/JUNE 2011 7 Upcoming Audio/Web Seminars May 17 Consular Processing In Juarez May 24 Asylum and Cancellation of Removal— Tricks of the Trade May 26 Show Me the Money— Ability to Pay Beyond the Yates Memorandum June 2 Fraud, Marriage Fraud, and False Testimony June 30 Application of the Kazarian Decision in EB-1(1) Extraordinary Ability and EB-1(2) Outstanding Researcher Petitions

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AILA InfoNet Doc. No. 11051171. (Posted 05/11/11) FACE OF AILA

4:30 A.M. CAME highlighting: Anthony (Tony) Weigel A LITTLE TOO EARLY. BUT THE ALARM WENT OFF AND I “HAD TO GET UP TO CATCH MY PLANE TO KANSAS CITY. TONY WEIGEL HAD ASSEMBLED A VERY AMBITIOUS AGENDA FOR THE DAY, CHOCK-FULL OF PRINT AND ELEC- TRONIC MEDIA IN- TERVIEWS, A PRESS CONFERENCE, AND Tony Weigel (right) with AILA President David Leopold. PARTICIPATION IN A Anthony (Tony) Weigel is the principal of Weigel Law Office, LLC, located ‘SILENT VIGIL.’ SO, I GRABBED A CUP in the Kansas City, MO, area, and concentrates his practice in the areas of OF STRONG BLACK business immigration law and employer compliance with immigration laws. COFFEE AND MADE Tony is chair of the AILA Missouri/Kansas Chapter and serves on AILA’s MY WAY TO THE Media & Advocacy Committee. He has also served on AILA’s Verification AIRPORT ...” and Documentation Liaison Committee and was an associate editor of AILA’s Read the rest of Guide to Worksite Enforcement & Corporate Compliance. Since 2007, Tony has AILA President David Leopold’s actively opposed state immigration law measures. In 2011, his chapter worked blog about his day with formal and informal coalitions to effectively oppose measures in Kansas with Tony. and Missouri and advocate for federal action.

Want to recognize a t David Leopold congratulates person/organization Tony on becoming the latest for Face of AILA? Face of AILA. “Tony is what Complete a we want all AILA members to Nomination Form. aspire to be,” David says. “Tony Questions? E-mail is a great lawyer; he’s a great [email protected]. u advocate; he’s out there fighting for justice; he’s out there fighting to make the law better.”

AILA InfoNet Doc. No. 11051171. (Posted 05/11/11) MAY/JUNE 2011 9 UNSOLICITED ADVICE from Cletus M. Weber 8 Steps to Being a Hero Without Getting Your Client and Yourself into Trouble

elping clients through difficult circumstances Discovering a route on a map is one thing, carrying is one of the greatest joys of being an someone over the mountain is another. Get help if Himmigration lawyer. But if you try to be a necessary. Or refer the case to someone else. hero recklessly, unethically, or illegally, you might aggravate your client’s pain, lose your license, or DO YOU KNOW EVERYTHING worse. ABOUT YOUR STRATEGY? Before attempting an extraordinarily difficult Before asking a client to pursue a risky strategy, solution for your client, make sure you—and your make sure you understand all of the possible client—truly understand everything you need to pitfalls, repercussions, back-up options, and so on. know. Consider these questions. That is, never guess on any element of your strategy. Work through the case logically, addressing IS IT LEGAL AND ETHICAL? each “what if” carefully in case a step The desire to help clients can be extraordinary along the way is sped up, slowed at times, especially when their troubles are so down, or denied unexpectedly. unreasonably severe and not their fault. Even so, never cross ethical or legal boundaries to help your DOES YOUR CLIENT client. UNDERSTAND EVERYTHING ABOUT YOUR STRATEGY? IS THE RISKY STRATEGY It is not enough for you to WORTH THE POTENTIAL COST? understand the ins and outs of your Make sure you can create a great benefit or remove proposed strategy. Your client also an enormous harm before sending the client down must understand. The more a risky path. complex the scenario DO YOU HAVE ADEQUATE ALTERNATIVES? The more experience you have, the more likely you are to see potential strategies for solving difficult problems for your client. Ask around, though, because others may know of easier or safer approaches.

ARE YOU THE BEST PERSON FOR THIS PARTICULAR APPROACH? Sometimes, you can see an approach that got a comment? might work, and that’s great, but that doesn’t send it to: necessarily mean you are the best person for [email protected] implementing the solution.

AILA InfoNet Doc. No. 11051171. (Posted 05/11/11) 10 VOICE NEED MORE ADVICE? Visit AILA’s Practice & Pro- fessionalism Center for help developing your practice, resolving an ethical dilemma, improving firm management, or meeting your pro bono commitments.

See also Immigration Practice News, Spring 2011, a quarterly newslet- ter published by AILA’s Ethics and Practice Management Committee. In this issue: “Easy Steps Toward Sensible Client Security”; “Planning for Death and Disability”; “The Ad- vantages and Risks of Outsourcing Your Casework.”

and the less capable the client, the harder you have to work to ensure complete understanding before the client can knowingly okay your proposed strategy. Be especially diligent in preventing clients from assuming that your capabilities and trustworthiness will guarantee a successful result. Stress that the case is difficult, that you will do your best, but that the outcome (even if repeatedly achieved in past cases) is not guaranteed.

SHOULD RISKY STRATEGIES BE IN WRITING? Carefully drafting and thoroughly discussing risky strategies with your client can bring out previously unseen risks, options, concerns, etc.

SHOULD YOUR CLIENT SIGN? Requiring a signature elevates your client to decisionmaker and increases the likelihood that your client understands and knowingly accepts the risks before agreeing to go forward—especially if your risky strategy is very well thought-out and carefully communicated. Your client’s signature also can help you if the client, bar association, or government subsequently challenges the appropriateness of your actions. You can be a hero. Just be careful.

Cletus M. Weber is co-founder of Peng & Weber, PLLC, based in Mercer Island, WA. His practice focuses on EB-1, NIW, EB-5, and other areas of employment– and investor-based immigration. The author’s views do not necessarily represent the views of AILA nor do they

SHUTTERSTOCK/ILLUSTRATION BY BRADLEY AMBURN SHUTTERSTOCK/ILLUSTRATION constitute legal advice or representation.

AILA InfoNet Doc. No. 11051171. (Posted 05/11/11) MAY/JUNE 2011 11 SPOTLIGHT by Andrew Johnson How to Increase the Organization and Efficiency of a 3-Year-Old Firm

This is part two of a three-part series that suggests to reviewing the next two months of your cal- (1) how to start your own immigration law firm; endar. E-mails regarding open cases should (2) how to increase the organization and efficiency be sent to staff with the client’s name as the of a 3-year-old firm; and (3) how to increase pro- subject line. The body of the e-mail should be ductivity in a 7-year-old firm. short, “Call court and check on status of continuance motion”; “Call client about docs we nce an immigration firm enters its third requested for RFE”; “Prepare draft of motion year, the focus should be on efficiency to change venue.” and organization; there should be no Omore chaos with last-minute U.S. Citi- Systemized zenship and Immigration Services (USCIS) and Mail Approach Department of Labor deadlines, or running to court Secretaries are responsi- for an emergency continuance request or late docu- ble for scanning all receipt ment submission. There always will be last-minute notices and sending them clients, but if 90 percent of all your immigration to the client by e-mail at- work is properly scheduled and organized, you can tachment; all approval handle the emergency deadlines. notices, court notices, Learn more and denials are sent by e- Calendar Tracking System mail and hard copies are about the

The entire staff should know about all deadlines, mailed to the client’s ad- special savings court appearances, USCIS interviews, and client dress by Fed Ex Ground, appointments through a networked scheduling UPS, or certified mail, and AILA members tracking system. Since clients will call regularly for the receipt is scanned into receive on select updates on the status of their case, your secretar- the client’s computer file. ies should be able pull all client information within Even if the client calls and FedEx services! seconds and handle most of these calls. acknowledges receipt of the e-mail, still send the denial Scheduling document by a mail carrier Control your calendar and attempt to regiment that allows you to track the your schedule so as to avoid fielding phone calls all proof of receipt. day. For example, a weekly schedule may entail: • No phone calls from 9:30 am to 12:00 pm (ex- Delegation cept from the government or court) Stop doing busy work and delegate. You should • Return client calls from 4:00 pm to 5:00 pm have templates of everything imaginable—motions, • New client consultations on Monday and Fri- letters, and inquiries to USCIS—which should day from 12:30 pm to 4:00 pm, and Wednes- be organized and accessible. As an attorney, you day from 5:00 pm to 6:30 pm should be practicing law and developing argu- • At least an hour a week should be dedicated ments on your client’s behalf, not typing an im-

AILA InfoNet Doc. No. 11051171. (Posted 05/11/11) 12 VOICE NEED HELP BUILDING YOUR TEMPLATE LIBRARY? AILA offers templates to get you started on the path to being organized and ready for the next case: AILA’s Immigration Practice Toolbox and AILA’s Immigration Litigation Toolbox.

migration court cover page. For example, when an name is on the subject line. Create a computer file RFE response for an H-1B is due in 10 days, send that has generic client explanation templates. For an e-mail to staff saying, “Please put together H-1B example, if a client needs information on the PERM RFE template in computer file and tab and exhibit process, e-mail a PERM questionnaire attachment response and put on my desk.” Now you can start and a PERM explanation attachment. writing the RFE response citing tabbed exhibits of the hard copy on your desk. When finished with Billing System the response, send an e-mail to staff saying, “Proof- A computerized billing system is a necessity. The read RFE, package it, and bring to my desk for final system should be capable of printing out a list of review.” For a motion for continuance, an e-mail overdue payments, and your staff should dedicate should state, “IJ just rescheduled master calendar, a few hours a week contacting all clients with out- we have another individual at same time, put mo- standing invoices by phone, e-mail, or mail. Form tion together, no rush, thx.” letters should be created for balances overdue by 30 days, 60 days, etc. If your firm offers monthly Document Scanning payment plans, pick one day of the month for all Before any application is mailed out, scan it with payments to be due. Coordinate a reminder sys- the mail receipt number and filing fee check and save tem for clients one week before payment is due, it in the client’s computer file. Scanning saves filing and follow up one week later if payment is not space, reduces costs in sending a copy to the client, been received. Although meeting filing deadlines and provides proof of filing and tracking when US- should be the top priority for an immigration firm, CIS claims it never received the application. billing is a close second. Too often, a conscientious law firm focuses on the legal work, and allows bill- E-mail ing deadlines to pass without notice. Try to have Train your clients to communicate through e- one employee’s primary focus on receivables and mail. It forces clients to clarify their thoughts and give that employee an organized tracking system you can reply back at your convenience. If your so as to avoid collection attempts after the case is response will take more than a paragraph, then completed. schedule a phone call. Try to forward all non-legal e-mail questions to staff. For example, staff can han- Web Presence dle e-mails such as, “Have you received any receipt Write to the clientele that you want to attract. notice on my case yet?” “What are the family-based Choose which clientele your website will target. petitions priority dates?” and “How much is left on For example, if you are targeting human resource my balance?” directors for business immigration, the website All e-mails can be easily tracked if the client’s should portray a corporate image. There are

AILA InfoNet Doc. No. 11051171. (Posted 05/11/11) MAY/JUNE 2011 13 numerous decisions you should make Try to obtain a or only representing a specific sec- before creating a website: tor. For example, business immigra- • Decide, before you write copy balance of business, tion law firms that primarily repre- for your website, which “tag family, court, and sented financial companies in New words” will be used. York lost substantial income during • Decide if you want the website appellate work. the financial crisis. Try to obtain a to attract clients through search Pure business balance of business, family, court, engines or as a secondary mar- “ and appellate work. Pure business immigration firms keting tool. immigration firms should at least • Decide on a specific logo for should at least try try to branch into different busi- your firm that will be on all to branch into ness sectors. Firms that handle only marketing materials, including different business immigration court cases should try the website. to represent more than one ethnic After writing the content, get it sectors.” group or offer other practice areas to the experts, as some firms spend besides immigration law. years writing and designing their websites. There are online companies that will handle everything Andrew Johnson is founder of the Law Offices of at a reasonable cost. At the same time, create web Andrew P. Johnson, PC in New York. His practice brochures that match your website colors and logo. focuses on investor and employment visas, along with federal appellate litigation. The author’s views Diversification do not necessarily represent the views of AILA nor do Always be wary of having just one large client they constitute legal advice or representation.

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OR PRINT/ELECTRONIC COMBO! $109 (AILA Member Price) $219 ( AILA InfoNet Doc. No. 11051171.Regular (Posted Price) 05/11/11) (available as .pdf download from the online bookstore only) The Nuances of the Marriage Fraud Interview by James W. Austin

AILA InfoNet Doc. No. 11051171. (Posted 05/11/11) 16 VOICE reparing your clients for a spouse government detects certain characteristics in the petition interview is a simple, routine parties or their relationship. There are two good Pprocedure. However, the more a couple’s marital sources for finding the “red flags” that may trigger a relationship deviates from the officer’s imaginary fraud interview—the U.S. Citizenship and Immigration norm, the more likely it will undergo additional Services (USCIS) Fraud Referral Sheet3 and the day-to- scrutiny. The chances that the couple will be subjected day experiences of yours and your fellow practitioners. to separate and intensive interviews increases if you Although the purpose of the Fraud Referral Sheet are an aggressive practitioner who tells clients to not is to forward a case for further investigation, it lists let the government decide how they structure their dozens of useful indicators of behavior or events marriage. Atypical relationships, uncommon marital USCIS considers suspect. The factors cited on the circumstances, and hard-headed clients can all lead to Fraud Referral Sheet include: the need to prepare for a long and detailed interview. • Multiple applications/petitions by single applicant/ Several different names have been given to what petitioner; can be extensive and lengthy marriage interviews. • Short time between entry and marriage; “Stokes interview,”1 “marriage fraud interview,”2 or just • Unusual marriage history; plain “fraud interview” have all been used to describe • Children born during marriage to other parent; by James W. Austin the appropriate government exercise of detecting • Unusual or large age discrepancy between spouses fraudulent marriages. As long as counsel is convinced (when found in conjunction with other indicators); the marriage is not a sham, and the union meets the • Unusual associations between family members; requirements of a marriage under the immigration • Unusual cultural differences; laws, it is counsel’s job to defend your clients’ lifestyle • Low employment/financial status of petitioner; choices and assist them toward an approved petition. and • Previous marriage to foreign nationals. When to Expect a Fraud Interview USCIS officers are cautioned to not solely rely on just Fraud interviews are usually initiated after the one specific factor, especially if the suspect fact

AILA InfoNet Doc. No. 11051171. (Posted 05/11/11) MAY/JUNE 2011 17 is a large age difference between the petitioner and LISTEN TO THE EXPERTS! Advanced Issues beneficiary. However, local practitioners may not be in Family-Based Immigration BUY so circumspect in what they feel can trigger a hard interview. Tap into the experience of your colleagues. Local lore will often be specific to the quirks and fo- concern, such as educational/economic class dispari- cus areas of specific examiners. ties or unusual living arrangements. Telling a couple Screening your clients during the initial consulta- that their 30-year age difference might raise govern- tion for the likelihood of a fraud interview is always ment suspicions is not telling them something they a good practice. Also, when setting your fees, fraud have not already considered. Having the conversation interview cases almost always require more time and will give you a good indication of their commitment follow-up work. Remember, however, that separate in- and how they will respond to the examiner. terviews can occur even in the absence of the normal Should circumstances warrant, warn the petitioner indicators. Your perfectly clean couple may still be in- that threats of fines and jail time may be used in an terviewed separately as training for new officers or as effort to have the petition withdrawn. Further advise a way for an over-staffed field office to fill slack time. that if the marriage is real, they have nothing to fear. Not only does this help you gauge the resolve of the Preparing Your Client— couple to continue with the process, but openly dis- A Suggested Dialogue cussing the possibility helps to reduce the intimida- While some attorneys only do a hard prep with tion level of the government-issued threats. clients when fraud indicators are present, others prepare every couple before their interview. The “Is Everything on the Forms Accurate?” reasoning behind this is simple: it is better to be USCIS can access a variety of information sources, prepared than to have to clean up a mess later. including several private computer data-mining Just as there is no limit to the potential questions services. Through these outside sources, USCIS USCIS can pose to your clients, there is also no limit can obtain public records, lease information, credit on the advice an attorney can dispense. What follows applications, and requests made for public assistance. is a basic outline of the advice counsel should impart It is not unusual for people to give inaccurate address, to a client before undergoing a fraud interview: wage data, or family information on credit or benefit applications, especially if the couple is of limited “You May Have a Hard Interview, and Here Is Why.” financial means. Question your clients on any past Describe the practical handling of a fraud inter- use of other addresses on any application or record. view and let them start getting comfortable with the Is the petitioner currently receiving public benefits thought that they might be individually questioned. or subsidized housing? Has he or she applied for Remind the parties that the interview may be video- them in the past? If there is incorrect information taped so that they are not intimidated by an unex- floating around in these records, then spot it now. pected event. They should know that the videotape of For example, if the addresses on the Form G-325A, the interview is a positive factor because it also helps Biographic Information, are not exactly accurate, ensure the professional behavior of the officer. then take an amended version to the interview and Be honest with your client about why you feel be ready to explain any discrepancies between the USCIS may put them under close examination. Do not G-325A and other addresses located by USCIS. be timid about discussing topics that are sometimes considered socially incorrect. If your experience tells “They Can Ask You About Anything, but Rarely you that mixed-race marriages usually receive extra About Your Intimate Relations.” scrutiny (a recognition that USCIS officers might pos- Although some officers recite questions from a sibly hold prejudices contrary to USCIS policy), then script, there is no limit to the potential topics they convey that information to your clients. Do the same can explore. Memorizing vital facts is not adequate with any other circumstances that may cause USCIS preparation. You can demonstrate this with a short

AILA InfoNet Doc. No. 11051171. (Posted 05/11/11) 18 VOICE Q&A session during your interview preparation have separations, no joint property, separate tax re- time. Ask a sample question, then develop follow-up turns, and have not told their family about the mar- questions based on each new response. For example: riage. Admit these bad indicators and be ready to give Q: When was the last time you and your wife ate an explanation. out with a non-family member? A: Last Friday. “If You Do Not Know an Answer, then Say You Do Q: Who was at the dinner? Not Know. If You Are Unsure or Guessing, Then Say A: Me, my wife, and a friend. You Are Guessing.” Q: What was the friend’s name? Nobody remembers everything, and part of what A: Willie Beale. is remembered will be incorrect. If your client is Q: How did you meet Mr. Beale? unsure, have them say so. There is no limit to the A: At my work. topics that can be explored. Let the officer move on Q: When did your wife first meet Mr. Beale? to other answers for comparison. A: At my work. Q: When was that? “Do Not Say a Document Exists When It Does Not. When asking the questions, do not allow the Do Not Exaggerate Anything!” other spouse to answer or even talk. No exceptions. There will be opportunities to submit additional Demand an actual answer to each question. Be firm documents after the interview. There is no reason to be in your demeanor and keep digging for one or two flustered if the officer asks for something unavailable minutes. This exercise will direct their attention to at the interview. Also, do not misrepresent what what may be in store for them at the interview. a document says. At the end of the interview, your client may be asked to produce any document that “Listen to the Question, Then Answer That Question.” was discussed. The document should exactly match Do not allow clients to start an answer with some any statement made during the interview. rambling explanation leading up to a possible future answer. If the question is closed-ended and calls for “Do Not Accept an Officer’s Statement if Part of It Is a direct answer, then the answer is usually “yes”, “no”, Not Correct.” “I don’t know”, “I don’t remember”, “I think ...”, “I Sometimes, an officer will assume or misstate a fact don’t understand your question” or “I’m confused” when asking a question. For example, if the officer if the question is not simple and clear. Answer the asks, “So, you fixed your wife’s breakfast Monday question. Then, give the explanation if one is needed. before she went to work. Who did the dishes?” If the answer is, “She did,” then he has also admitted to that “Tell the Truth Whether You Like the Truth or Not. on Monday, he fixed breakfast for his wife and that Do Not Give an Answer Just Because You Think It Is she worked. If any fact in the question is incorrect, What the Officer Wants to Hear.” such as if she did not work Monday, then fix the error Even one lie can quickly lead to another in support before answering the question. of the first lie. Once that happens, you have a very “Keep Relaxed and Focused.” big problem. Do not try People are not accustomed to thinking and an- to hide negative factors swering questions for an extended period of time, in the relationship. There no matter how polite the questioner. We are simply are reasons why people not accustomed to being interrogated.

t This article will appear in the 2011–12 edition of Immigration Practice Pointers, the handbook used for the 2011 AILA Annual Conference, taking place June 15–18, 2011. The publication goes on sale in June. ($149 Member Price; $229 Regular Price) PRE-ORDER

AILA InfoNet Doc. No. 11051171. (Posted 05/11/11) MAY/JUNE 2011 19 After 15 minutes of specific questions, fear “Get a Good Night’s Sleep. Come to the Interview mounts and anxiety sets in. The interviewee wants Rested.” to leave the room and, consequently, gives thought- They usually will get little sleep the night before, but less and sloppy answers. Most avoidable inconsis- it never hurts to give the advice anyway. Also, after a tencies happen in the last portion of the interview. hard interview preparation, it serves as a reminder Tell your clients that when they start getting tired that you, as their attorney, really are concerned about of the questioning, they should take a very deep their welfare. breath, sit up straight, stomp their heels on the floor, and force themselves to concentrate on the Attorney Role in a Fraud Interview very next question and an honest answer. Just as clients must prepare for a long interview, so must the attorney. Fraud interviews often exceed “If You Know You Gave an Incorrect Answer, Go an hour, so inform your office that you may be Back at Any Time and Change It.” unavailable for a longer than normal period of time. Clients should know that if they lie, or make a mis- Bring sufficient writing materials. If a break is taken take, then they must fix it. The sooner the better, but during the interview, such as when the spouses switch at any time it is appropriate to say, “Let’s go back to the places, consider that any discussion you might have question about ...” At any time, they can say, “Stop a with the next interviewee may be viewed by USCIS minute,” and then talk about the question of concern as an intentional hindrance of its attempt to verify from 10 minutes earlier. Fixing the answer is more im- the parties’ relationship. portant than whatever reason is given for needing to The attorney is a perpetual scribe during the inter- make the correction. They can say they were confused, view in anticipation that USCIS may later try to disal- thinking of some other event, momentarily brain dead low the petition. A Notice of Intent to Deny (NOID) or lied. Whatever the reason, correct the answer. may soon be issued if sufficient inconsistencies -re

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116 John Street, Suite 1301, New York, NY, 10038 212-587-3164 Email: [email protected] | Web: www.adnet-nyc.com 212-406-4648 AILA InfoNet Doc. No. 11051171. (Posted 05/11/11) 20 VOICE sult from the interview. The attorney’s detailed inter- quently, fall within the range of actions an attorney view notes are irreplaceable when responding to the may take at a fraud interview. Intervention by an at- NOID. Since most NOIDs consist only of negative torney can include politely asking the officer if the factors, it is not uncommon that for every inconsis- line of questions are appropriate, instructing the cli- tency noted by the officer in the NOID, the attorney ent that he or she need not answer, and in serious can respond with 10 examples of consistency. This cases, stopping the interview and requesting to con- ability to show overwhelming positive results, along sult a supervisor. with reasonable explanations for the inconsistencies, The attorney can submit a Freedom of Information forms the foundation of the response to the NOID. Act request for the videotape of the interview. Even In many cases, the USCIS officer will wish to the act of verbally requesting the officer to preserve limit the attorney’s role in a fraud interview to that the video can alter the tenor of an interview. If a of just an observer. While observation and note- timely FOIA request later shows that the video was taking are vitally important tasks, this does not deleted, the erasure of what you consider exculpatory negate the other useful services available when an evidence adds substance to later litigation. attorney is present. Different attorneys hold widely divergent opinions James W. Austin is a partner with Austin & Ferguson, of what actions constitute proper representation LLC, a firm exclusively practicing immigration and during a fraud interview. Obviously, a tactful nationality law. The author’s views do not necessarily interruption to correct a misunderstanding or a represent the views of AILA nor do they serve as legal substantial misstatement by the officer can benefit advice or representation. both the client and the examiner. 1. Stokes v. INS, No. 74 Civ. 1022 (S.D.N.Y. 1976). Additional note omitted. Dealing with inappropriate questions or behav- 2. Adjudicator’s Field Manual (AFM) ch.15.4(a)). 3. USCIS Internal Form, “Fraud Referral Sheet,” AILA InfoNet at Doc. No. ior of the officer will also, although hopefully infre- 10012861.

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he refugee and asylee waiver of inadmissibility “The Impact of Matter of Jean on under Immigration and Nationality Act Waivers for Refugees and Asylees” T(INA) §209(c) waives many grounds of by Jeanette Kain } inadmissibility that would doom a client in any other context, even those involving aggravated felonies and false claims to U.S. citizenship. featured in: Although the attorney general (AG) has restricted §209(c)’s application to violent or dangerous crimes, The Waivers Book: it remains a broad waiver for those immigrants who fit within the small class of people who still are Advanced Issues eligible. In 2002, the AG severely restricted the reach of in Immmigration the INA §209(c) waiver for criminal cases. Matter of Jean, 23 I&N Dec. 373 (AG 2002), held that Law Practice those who were convicted of violent or dangerous crimes should be barred from the waiver except in extraordinary circumstances. Matter of Jean requires adjudicators to look at the underlying facts of the crime in question and to make an individualized determination as to whether the offense that was committed was a violent or dangerous crime, for purposes of exercising discretion. There has been some confusion about whether “violent or dangerous crime” is the same as “crime of violence,” which is a category of aggravated felonies and is defined at 18 USC §16. The AG was quite clear in Matter of Jean that these are distinct standards, even stating that it was “unnecessary” to decide whether the offense in question was a crime of violence. More importantly, the categorical or modified categorical approach utilized in determining whether an offense is a crime of violence does not apply to §209(c) waivers or to the exercise of discretion in general. A fact-based approach to $149 adjudication should apply, and the MEMBER PRICE adjudicator can consider factual documents such as police reports, $229 as well as your client’s explanation REGULAR of the event, including context and BUY extenuating circumstances.

Excerpted from J. Kain, “INA §209(c) Waivers for Refugees and Asylees,” The Waivers Book 241 (AILA 2011). Many footnotes have been omitted from this version but appear in the original.

AILA InfoNet Doc. No. 11051171. (Posted 05/11/11) 22 VOICE NEW! Also read an excerpt from AILA’s new classic, u from AILA Publications Business Immigration: Law & Practice

That said, the Board of Immigration Appeals in the vast majority of cases, your client will have to (BIA) has indicated in unpublished cases that the show that the denial of the application will result in definition of “crime of violence,” as set out in 18 exceptional and extremely unusual hardship. The AG USC §16, should inform an adjudicator’s decision as also held that in circumstances involving national to whether the facts of a particular offense involve security or foreign policy considerations, the waiver violent or dangerous conduct. The U.S. Court of also could be granted. Matter of Jean, 23 I&N Dec. Appeals for the Ninth Circuit has agreed with this at 383. But these situations are rare. There is no analysis in Mejia v. Gonzales, 499 F.3d 991, 999 (9th published case law on the application of this level of Cir. 2007). This holding undercuts theMatter of Jean hardship standard to the §209(c) case, but applicants approach, as 18 USC §16 focuses on the elements of for cancellation of removal under INA §240A(b) the criminal statute rather than the actual behavior also are required to demonstrate exceptional and that occurred. In cases involving bad facts but a extremely unusual hardship, and there have been vague criminal statute, however, attorneys should many cases addressing this standard. These cases consider utilizing this argument. must be read with the knowledge that applicants for “The most important lesson that attorneys should take away from these cases is the importance of heavily documenting the various hardships that a client and his or her family will suffer.” To shed light on the sort of offenses or behavior cancellation of removal may prove hardship only to that typically constitutes violent or dangerous a qualifying family member, while Matter of Jean crimes, it is helpful to review cases applying the places no such restriction on §209(c) applicants, and Matter of Jean standard in §209(c) waivers, as well they should be able to meet the standard by proving as waivers of inadmissibility under INA §212(h), as hardship to themselves, as well as family members. the Matter of Jean standard applies to both waivers.1 Exceptional and extremely unusual hardship is [In various circuit court and BIA decisions included “hardship that is substantially beyond that which in the full-text version of this article], [a]ssault-type would ordinarily be expected to result from the alien’s crimes involving weapons, most sexual abuse crimes, deportation” but it need not be “unconscionable.” See criminal restraint, burglary, and armed robbery Matter of Monreal, 23 I&N Dec. 56, 60–61 (BIA 2001). have been considered violent or dangerous crimes. Factors that an adjudicator may consider in assessing Nonetheless, because an adjudicator is required to hardship include age, health, conditions of the home conduct an individualized analysis of the facts of the country, and other circumstances of the person case, attorneys are free to distinguish these cases from claiming hardship.2 These factors must be considered the particular facts of their clients’ cases. Adjudicators in the aggregate. The BIA held, inMatter of Monreal, should not conduct an across-the-board analysis, that an applicant did not establish this level of where they find that all crimes under particular state hardship even in circumstances where he had lived in statutes are violent or dangerous crimes. the United States for 20 years since age 14 and had two school-age U.S. citizen (USC) children who would be Exceptional and Extremely forced to return to Mexico with him. The BIA based Unusual Hardship its decision on the fact that the children were fluent Once it is clear that Matter of Jean applies, in both Spanish and English, that the applicant had your client then has to show that extraordinary strong family ties in Mexico, including his spouse, circumstances warrant approval of the waiver, and and that the applicant’s parents did not have any

AILA InfoNet Doc. No. 11051171. (Posted 05/11/11) MAY/JUNE 2011 23 SNEAK PEEK

SEMINAR RECORDING: Demonstrating should take away from these cases is the importance Extreme Hardship: Waivers Series Part 3 of heavily documenting the various hardships that a client and his or her family will suffer. An adjudicator is required to look at the totality of the circumstances, particular health problems or other reasons that they considering all evidence in the aggregate. Thus, it would suffer without their son in the United States. is essential that you spend a significant amount of The BIA noted that while the applicant’s children and time preparing detailed affidavits from your client parents were likely to suffer some hardship, it was not and his or her family members, and gathering other exceptional and extremely unusual. documentation of health problems, learning or Similarly, in Matter of Andazola, 23 I&N Dec. 319 developmental disabilities of children, the client’s (BIA 2002), the BIA held that a Mexican woman ties to the United States and lack of ties to the home with two school-age USC children had not proven country, general country conditions, and any other exceptional and extremely unusual hardship to her situation that would demonstrate that the applicant children in a situation where the applicant had no ties and his or her family face hardships that are, in the to Mexico, faced few job opportunities, and whose words of the BIA, “substantially beyond that which children would face fewer education opportunities. would ordinarily be expected to result from the The BIA found that the applicant’s family in the alien’s deportation.” United States could send her financial support in As a final note, the AG stated in Matter of Jean Mexico, and while the children might face some that even when an applicant succeeds in meeting the hardship due to social and economic conditions in high burden of proving exceptional and extremely Mexico, it was not enough to warrant an approval of unusual hardship, it still may not be enough for the application. a favorable exercise of discretion.3 This makes In contrast with these decisions, the BIA held, in it difficult for attorneys to advise clients about Matter of Recinas, 23 I&N Dec. 467, 469–73 (BIA applying for the waiver in situations where Matter 2002), that a single mother of six children, four of of Jean is likely to control, even when the client is whom had never been to Mexico and were unfamiliar able to prove a significant amount of hardship. In with Spanish, and who had no family ties to Mexico, the end, it boils down to both the preparation of the had established that denial of her application for case and the adjudicator’s discretion. cancellation of removal would result in exceptional and extremely unusual hardship to her children Jeanette Kain is an immigration law specialist at the and parents. The BIA also noted that the applicant Committee for Public Counsel Services, the Massachusetts had no other channel for obtaining lawful status in public defender’s office, in Somerville, MA. This is an the United States, and that she relied heavily on her excerpt from an article appearing at The Waivers Book parents to help her raise her children. 241 (AILA 2011). Many footnotes omitted. The author’s PRACTICE TIP: It is difficult to understand why views do not necessarily represent the views of AILA nor do the applicants in Matter of Monreal and Matter of they constitute legal advice or representation.

Andazola did not prove enough hardship, while the 1. 8 CFR §1212.7(d); USCIS Memorandum, “Waiver of Criminal Grounds of Inadmissibility for Immigrants—Summary of the December 26, 2002 applicant in Matter of Recinas did. All three cases Interim Rule” (5/27/03), published on AILA InfoNet at Doc. No. 03080717. raised nearly identical hardships and contained 2. See USCIS Memorandum, note 1. similar facts. The most important lesson that attorneys 3. See also USCIS Memorandum, note 1.

Find the full text of this article in the newly released Waivers Book! Also, pre-order Business Immigration: Law & Practice for more on TN vs. H-1B!

AILA InfoNet Doc. No. 11051171. (Posted 05/11/11) 24 *VOICE “TN vs. H-1B: How Trade NAFTA Measures Up to the Popular H-1B Classification”} by Daryl Buffenstein and Bo Cooper

featured in: Business Immigration: Law & Practice

Strategy: TN vs. H-1B Because the TN classification was modeled after the H-1B nonimmigrant classification, a foreign national may be eligible for both nonimmigrant categories. In this situation, the practitioner should strategize with the client to decide which classification is a better fit for the needs of the employer and the foreign national. In general, the H-1B category is preferred for situations where the foreign national does not meet the eligibility requirements for TN status: when the on the number of new H-1B visas foreign national is pursuing permanent residence; $379 that are available each year, where- when the position is not one of the enumerated TN PRE-PUBLICATION as there is no such quota for the TN professions; or when the foreign national lacks the MEMBER PRICE classification. There was formerly a required educational, licensure, or experience back- $579 numerical limitation of 55,000 TN ground. The TN classification is preferred for most REGULAR visas each year for Mexican citi- other situations. But because of the numerical limita- PRE-ORDER zens, but this quota was abolished tion on H-1B visa numbers and the lottery system for in 2004. Because of a historically allotting H-1B visa numbers, discussed below, it may high demand for H-1B visas, U.S. Citizenship and Im- not be feasible for the employer to wait to employ the migration Services (USCIS) often conducts a random foreign national in H-1B status; it may be necessary to lottery each year to determine which foreign nationals request TN status first and then file an H-1B change will be able to claim an H-1B visa number, and in fiscal of status petition at a later date, as discussed below. year 2007, only 50 percent of proposed H-1B benefi- ciaries were awarded H-1B visa numbers. In addition, Numerical and Time Limitations the high demand for H-1B visa numbers created a First and foremost, there is a numerical limitation situation where only H-1B petitions filed during

Excerpted from AILA’s Business Immigration: Law & Practice, Chapter 14, titled “TN Visas and Status” (AILA 2011). Footnotes have been omitted from this version but appear in the original.

AILA InfoNet Doc. No. 11051171. (Posted 05/11/11) MAY/JUNE 2011 25 SNEAK PEEK

the first week of April for start dates of no earlier than Tackling Tough Issues in Business Immigration October 1, 2008, could be considered for the lottery. Authors Daryl Buffenstein and Bo Cooper discuss Therefore, as a practical matter, if the employer seeks the Kazarian decision; AC21; the future of B-1 to hire a foreign national in H-1B status for a start date in lieu of H-1B as it relates to politics; current earlier than October of any given year, or if the em- problems in L-1 practice; pitfalls in labor ployer and/or foreign national are not ready to file the certification; war stories of strange RFEs, NOIDS, H-1B petition in early April, the foreign national will and denials; and I-129 changes. LISTEN IN be unable to claim an H-1B visa number. The excep- tion is if H-1B filings are low in number, perhaps because of a downturn in the economy, as discussed in quota of H-1B visa numbers, the process of the Chapter Seven, H-1B Visas and Status. H-1B petition will likely take longer as well. The Except in certain specific circumstances, a foreign lottery should first be conducted; then, the petition national may hold H-1B status for a maximum of must be adjudicated by USCIS, which can take six years, whereas a foreign national could hold more than six months. Premium processing may TN status for a longer period of time. As discussed be requested for an additional fee of $1,225 for a above, the statutes do not set a maximum time response (approval, denial, or request for further period for TN status, but, as a practical matter, evidence). Upon approval of the H-1B petition, foreign nationals requesting extensions beyond the foreign national may apply for H-1B admission the initial three-year period of admission may be or for an H-1B visa. In contrast, it is not necessary questioned about their nonimmigrant intent. to file an initial TN petition with USCIS, so the foreign national may start the process by applying Professional Occupations for admission or for a TN visa. The numerical limitation is unfortunate, as the The filing fees for an H-1B petition currently total H-1B classification is available to a wider group of $2,325, not including the premium processing fee. professionals than the TN classification for which the The costs for the TN petition are $56 for Canadian professional occupations are specifically enumerated citizens. For Mexican citizens, the costs include the in the NAFTA Treaty. If the foreign national’s duties $140 visa application fee, $150 petition-based fee, in the United States do not fall within one of the and $100 reciprocity fee. specified TN professions, then the H-1B classification Finally, in order to file an H-1B petition, a labor may be the only way for the foreign national to gain condition application must be certified by the De- U.S. employment authorization. The employer and partment of Labor, and the labor condition appli- foreign national may be forced to wait to file the cation must contain the employer’s attestation that H-1B petition, hope that the H-1B petition is selected the foreign national will be paid 100 percent of the in the lottery, and wait for an employment start prevailing wage for the occupation in the metro- date of no earlier than October 1 of the upcoming politan statistical area of the worksite. If the foreign fiscal year. The foreign national may also need to national will not be paid the prevailing wage, then apply for H-1B status if he or she does not meet the the employer cannot petition for H-1B status. It was minimum educational, licensure, and/or experience formerly a requirement that TN petitions on behalf qualifications of the TN occupation, such as if he of Mexican citizens also had to be accompanied by or she has the equivalent of a baccalaureate degree a certified labor condition application, but this is no based on progressively more responsible experience. longer required.

Timing and Cost Issues State Licensure In addition to the delays caused by the annual The TN classification does not require that the

AILA InfoNet Doc. No. 11051171. (Posted 05/11/11) 26 VOICE foreign national hold a valid U.S. state license to Conversely, although the foreign national practice his or her profession in the United States, as may not be self-employed in the United States opposed to the H-1B classification, where an H-1B in TN status, a self-employed foreign national petition for an occupation that requires a state or lo- may seek H-1B status by having a U.S. agent cal license typically cannot be approved unless the file the H-1B petition on his or her behalf. The foreign national holds a valid U.S. state license. The regulations require that the employer of an H-1B H-1B licensure requirement may apply to occupa- nonimmigrant pay the return transportation tions such as doctors, nurses, pharmacists, lawyers, costs to the home country if the foreign national’s occupational therapists, accountants, and teachers. employment is terminated, but there is no such In contrast, legacy INS guidance regarding the li- requirement for TN employees. censure of TN nonimmigrants specifically directs immigration inspectors and consular officers to Change in Duties or Work Location recognize that the licensure requirements should be The employer must file an amended TN petition administered by U.S. state authorities; immigration with USCIS if there will be a material change in the officials should not require that a foreign national job duties, or in the TN employer, but an amended hold a U.S. license because the license is a post-ad- TN petition is not necessary if the work location mission requirement and not a condition precedent changes, as long as the foreign national continues to for admission. perform the same duties for the same employer as stated on the initial TN petition. For H-1B employ- Employment Relationships ees, USCIS must be notified with an amended H-1B and Employer Responsibilities petition if there is a change in the job duties and/or The H-1B classification is not appropriate where change in the job location. The client should also be the foreign national will be employed by a Canadian advised of the requirements of the H-1B labor con- or Mexican company and will provide professional dition application, where a new labor condition ap- services in the United States. It is permissible, plication may need to be filed if the foreign national however, for a Canadian or Mexican citizen in works even temporarily in a new location. TN status to provide such services in the United States on behalf of a Canadian or Mexican entity. Dual Intent If the foreign national is employed by a Canadian Although it is permissible for a foreign national or Mexican entity and will provide services in the in H-1B status to pursue permanent residence, United States, the practitioner should discuss with a TN professional must continue to maintain the client how to demonstrate the relationship nonimmigrant intent and should be granted between the foreign entity and the U.S. company “temporary entry,” as discussed above. Therefore, that will receive the foreign national’s services. For if the employer or a family member will sponsor example, if the two companies have a corporate the foreign national for permanent residence, the relationship, as discussed in Chapter Eleven, L employer may wish to consider requesting a change Visas and Status, then the foreign national should of status to H-1B, although TN status may be granted be prepared to present the annual report or an prior to filing an application for an immigrant visa or officer’s certificate attesting to that relationship. adjustment of status. Alternatively, if the U.S. company is a client of the foreign company, the foreign national should have Daryl Buffenstein and Bo Cooper are partners in copies of the service contract, invoices, or other Berry Appleman & Leiden LLP. The authors’ views do evidence of payment for services pursuant to an not necessarily represent the views of AILA nor do they agreement between the two companies. constitute legal advice or representation.

AILA InfoNet Doc. No. 11051171. (Posted 05/11/11) MAY/JUNE 2011 27 Now Accepting $379 Pre-Orders at the AILA Member Pre-Publication Pre-Publication Price! Price! Beyond just telling you what to do, this authoritative treatise by two veritable giants in business immigration law will:

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CITED MATERIALS DETAILED EXPLANATIONS AND SUMMARIES OF REQUIREMENTS AND INTERPRETATIONS u LEGISLATIVE HISTORY AND SHIFTS IN USCIS POLICY AND INTERPRETATION COMMON PITFALLS AND STRATEGIES TO AVOID THEM p SEE BO IN SAN DIEGO: Be sure to attend the “Bring Your Own Question” Session with Daryl, Bo, and other AILA authors at the 2011 Annual Conference MANAGING CLIENT EXPECTATIONS in San Diego on Thursday, June 16, 2011, at 3:00 pm in the Exhibit Hall. In the meantime, listen to more about COMPLETING NECESSARY FORMS the Business book from Bo. AILA InfoNet Doc. No. 11051171. (Posted 05/11/11) INTERALIA

You Are Cordially Invited ... TheAmerican Immigration Council cordially invites you to attend its 2011 American Heritage Awards honoring: Somy Ali President, No More Tears Project Louis Caldera Vice President of Programs, Jack Kent Cooke Foundation and former Secretary of the Army Yousif Ghafari Founder and Chairman GHAFARI and former Ambassador to Slovenia SAVE THE DATE: Friday, June 17, 2011, at the Manchester Grand Hyatt in San Diego. Tickets are $200/person. For more information, e-mail Megan SPRINGING TO ACTION: AILA’s Executive Committee and Hess or call (202) 507-7517. executive staff visit the White House as one of many meetings RSVP! scheduled during the week of AILA’s Spring Conference in April 2011. Left to right (front): Victor Nieblas Pradis, Laura Lichter, Leslie Holman, David Leopold, Crystal Williams, Robert Deasy; (back row) Eleanor Pelta, Bernard Wolfsdorf, T. Douglas Stump, Greg Chen, and a guard standing by to make sure they stay out of trouble.

EVERYONE SAY ‘EB-5’: AILA’s EB-5 Liaison Committee after meeting with USCIS Director Alejandro Mayorkas in March 2011. Left to right: Linda Lau (vice chair), Tammy Fox-Isicoff, H. Ron Klasko (chair), David Andersson, Carolyn Lee, Lincoln

Stone, Ed Carroll, David Morris, and Boyd Campbell. AILA PHOTOS SHUTTERSTOCK; TOP:

AILA InfoNet Doc. No. 11051171. (Posted 05/11/11) MAY/JUNE 2011 29 WHAT’S HAPPENING!

THE 4-1-1:

Southern Florida Chapter member Summer Robertson and her husband, James, are proud to announce the birth of their son, Justice James, on March 5, 2011. u

D.C. Chapter members Elliott Lichtman and Tom Elliot have merged their firms to form Lichtman & Elliot, PC, in Washington, D.C. Check them out at www.lichtmanelliot.com.

Parwani Law, P.A., owned by Central Florida Chapter member Rinky S. Parwani, has been named winner of the 2010 Greater Brandon Chamber of Commerce Small Business of the Year award for the women and minority category.

NorCal chapter member Rochelle A. Fortier Nwadibia of RAFNLAW appeared in the Alumni Profile of the Washington University Law Magazine, fall 2009. u

D.C. Chapter member Becki L. Young has joined Baker & McKenzie as of counsel in the firm’s Washington, D.C., office.

Upstate NY Chapter member Michele A. Santucci has recently authored the “Corporate and Partnership Law” chapter and the “Limited Liability Company Law” chapter of the New York Lawyer’s Deskbook and Formbook published by the New York State Bar Association, as well as its annually published General Practice Monograph Series.

And the soccer announcer yells, “Score!!”: Washington State Chapter member COUTESY SUMMER ROBERTSON/ PHOTO BOTTOM: TO TOP UNIVERSITY/SHUTTERSTOCK WASHINGTON COURTESY Tahmina Watson has secured an O-1 visa for U.K. soccer star Adam Nowland. u

+ CELEBRATING 30 YEARS OF AILA MEMBERSHIP Joseph M. Tapper: 4/1/1974 Eric K. Copland: 4/20/1978 Gary C. Furin: 5/7/1975 Philip Hornik: 4/2/1979 Robert A. Mautino: 5/7/1975 Gregory P. Adams: 4/1/1980 Richard R. Rulon: 5/17/1975 Robert C. Schock: 4/17/1980

News to Share? Tell Us! [email protected]

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