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Week Four (continued) andWeek Five

Students – F-1, J-1, M-1 J-1 cultural exchange

Fulbright Scholars, professors, au pairs, business trainees, others – 2 year home residence requirement if

○ Program paid by alien’s government○ Program paid by US government, or○ Area of study listed on BECA skills list (DOS Bureau of Edu. & Cultural Affairs)

F-1 students Academic, language, duration of status

M-1 students Vocational, very low use

F-1, J-1, M-1 may depart US for up to 30 days to contiguous country (Mexico, Canada) and return without valid visa. 8 CFR 214.1(b).

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B-1 Business – B-2 Tourist No immigrant intent

B-1 Temporary Business Visitor No skilled or unskilled labor. INA 101(a)(15)(B)

Conventions, conferences, consultations, negotiate contracts, establish US entity, investigate investments

Int’l Union of Bricklayers v. Meese (N.D. Cal. 1985)○ INS Operating Instruction 214.2(b)(5) allows B-1 to service,

repair foreign equipment under warranty.

○ OI contradicts INA 101(a)(15)(B) and is thus invalid

Nonimmigrants and Immigrant Intent INA 101(a)(15) – definitions – lists for (B), (F), (J), (M), (O),

and (P): That the alien must have “a residence in a foreign country which he

has no intention of abandoning.”

International Union of Bricklayers v. Meese ND Cal. (1985) (p.396)

INA 101(a)(15)(B) unequivocally excludes from B-1 an alien “coming for the purpose of… performing skilled or unskilled labor.”

German workers come to install mining equipment in B-1 status INS O.I. says B-1 OK to install, service, or repair equipment

purchased from foreign company, but obviously contradicts the Act INS changed to rule to limit B-1 service/repair work to supervision

only in building and construction (rule obviously extends beyond)

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H-1B Specialty worker

Job requires bachelor’s degree Worker has related bachelor’s degree Cap of 65,000 plus 20,000 for US master’s degree Cap replenished October 1 each year, may file April 1

H-1B portability – H-1B may work for new employer “upon filing” and before petition is approved

Exemptions from Six Year Maximum Stay I-140 approved and get 3 year extensions until resident One year extensions beyond year 6 if Labor Cert. or I-140 pending

for ≥ 1 year (this never happens, but book mentions it) I-485 portability after 180 days

Spouse can’t work –this is important to

some workers!

H-1B Continued

What does material mean? When is a new

petition required?

If multi-worksite work, must provide an itinerary with the petition. 8 CFR 214.2(h)(2)(i)(B).

Employer must file amended or new petitionto reflect any material changes in the termsof employment. 8 CFR 214.2(h)(2)(i)(E).

May not file earlier than six months before worker required. 8 CFR 214.2 8 CFR 214.2(h)(2)(i)(E) (9)

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H-1B Continued If multi-worksite work, must provide an itinerary with the

petition. 8 CFR 214.2(h)(2)(i)(B).

Employer must file amended or new petitionto reflect any material changes in the termsof employment. 8 CFR 214.2(h)(2)(i)(E).

Experience Equivalent to Bachelor’s Degree: Evaluation from professor with authority to grant college credit,

College equivalency exam given by CLEP, PONSI, etc.

Certification from nationally-recognized assoc. for occupation, or

Determination by USCIS that beneficiary has three years of progressive related experience for each year of education required.

8 CFR 214.2(h)(4)(iii)(D)

H-1B Continued If an occupation requires a state or local license to

perform the job’s duties, the beneficiary must have that license prior to approval of the petition. 8 CFR 214.2(h)(4)(v)(A).

Numerical limits – if more petitions received than numbers available, USCIS will subject them to a lottery. 8 CFR 214.2(h)(8)(ii)(B).

H-1B valid for up to 3 years, but not to exceed validity period of LCA. 8 CFR (h)(9)(iii)(A)(i).

May enter up to 10 days before validity period begins and stay up to 10 days after it ends. 8 CFR 214.2(h)(13)(i)(A).

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Prevailing WageMean wage in county* at other companies for similar jobs

Actual WageMean wage at your company’s worksite for similar jobs

*Wage is for MSA or PMSA, normal commute distance is usually within county.

Company ACompany B

Company C

$50,000$65,000$72,500$45,500$52,500

+ $51,750$337,250

$337,250 ÷ 6 = $56,208.33Prevailing Wage Is: $56,208.33

Your Company

$79,250$80,250

+ $78,250$237,750

$237,750 ÷ 3 = $79,250Actual Wage Is: $79,250

You must pay≥$79,250

O and P Visas O-1 is nonimmigrant version of extraordinary ability,

but much easier to get – some accomplished workers can get one when the H-1B cap is reached

P-1 for athletes, P-2 for artists/entertainers reciprocal exchange, P-3 artists/entertainers culturally unique

Dual intent permitted for O and P status.8 CFR 214.2(o)(13) and (p)(15)

Spouse can’t work

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L-1 Multinationals Manager/Executive Max 7 years

Specialized Knowledge Max 5 years

Worked for one year of three preceding entry or petition (which ever is later) at foreign parent in manager/executive capacity or specialized knowledge

Both companies must do business while L-1 is in USA

Specialized knowledge workers must require unusual duties, skills, and knowledge beyond that of a skilled worker, more than short period of experience

Spouse can work with EAD

E Treaty Investors National of treaty country coming to United States to invest

or trade for up to two years with two year extensions

No cap

Must actively manage investment

Investment must be “substantial” not just for sustenance or livelihood of investor and her family

Approval more likely if already have entity, office space, bank account

Must trace funds to show origin

Spouse can work with EAD

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Business Plans (not testable) E-2 and L-1 cases for new businesses require business

plans – sloppy business plan, case gets denied

A good business plan means more likely approval

If you go into business for yourself, you need a business plan, or you are going to suffer

Buy:

Business Model Generation: A Handbook for Visionaries, Game Changers, and Challengers (2010)

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TN Visas Under NAFTA NAFTA visas – no petition required

For Mexican and Canadian nationals

No cap

Must be occupation listed in NAFTA Annex 1603 including trade in goods, provision of services or conduct of investment activities

Spouse can’t work

No dual intent – immigrant intent disqualifies

District Court Jurisdiction

FRCP 12(b)(1) Motion: Dismiss for lack of jurisdiction Court notes that 8 CFR 214.1(c)(5) extensions of status are granted “at the discretion of the service” but initial H-1B petitions aren’t granted at “discretion”

FRCP 12(b)(6) Motion: Dismiss for failure to state a claim; must accept factual allegations as true; determine whether make plausible claims. Bell Atlantic v. Twombly 2007; threadbare recitals of elements of a claim supported by conclusory statements don’t suffice. Ashcroft v. Iqbal 2009

Supplement p. 7-8

over visa petitions

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Administrative Procedures Act5 USC § 702, et. seq.

Plaintiff is entitled to APA relief if the denial of the petition was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 USC § 706(2)(A)

For agency action to survive judicial review it must have examined relevant data and articulated a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’

Simms v. Nat’l Highway Traffic Safety Admin., 45 F.3d 999, 1004 (6th Cir. 1995).

APA and FOIA APA (Harry Truman signed June 11, 1946)

Denial of the petition was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 USC § 706(2)(A)

Agency decision must have examined relevant data and articulated a satisfactory explanation including a ‘rational connection between the facts found and the choice made.’

FOIA (Lyndon Johnson signed July 4, 1966) Gov’t must grant or deny request within 20 business days and

inform if fee for records. FOIA § 552(a)(6)(A) and 6 C.F.R. § 5.6(b); upon payment of fee, if any, must disclose promptly.

If gov’t denies request, it must explain why

Gov’t may not withhold information unless subject to exception. FOIA § § 551 and 555(b).

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FOIA Attorney Fees FOIA has separate fees/costs provision:

Reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed. 5 USC § 552(a)(4)(E).

Court evaluates four factors:1. The public benefit from disclosure”;

2. Any commercial benefit to the plaintiff resulting from disclosure

3. The nature of the plaintiff’s interest in the disclosed records

4. Whether the government’s withholding of the records had a reasonable basis in law.

5. But may consider whatever factors it deems relevant in determining whether an award of attorney’s fees is appropriate. Church of Scientology v. U.S. Postal Serv., 700 F.2d 486, 492 (9th Cir. 1983)

Do you have to wait until defendants exhaust appeals? No. Rosenfeld v. United States, 859 F.2d 717, 725 (9th Cir. 1988)

(noting interim fee awards under FOIA should “be available to enable meritorious litigation to continue”)

FOIA Attorney Fees Continued Government’s position must be unreasonable

No fees where the government’s withholding had a colorable basis in law

Ordinarily award them if the withholding appeared to be merely to avoid embarrassment or frustrate the requester.

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EAJA Attorney Fees When was Equal Access to Justice Act Passed?

Who signed it?

EAJA award is payable to litigant and not attorney. Astrue v. Ratliff, 130 S. Ct. 2521 (June 14, 2010)

1987

President Ronald Reagan

Principles of Attorney Fee Billing Arises in FOIA, APA, EAJA, fee arbitration in client disputes,

State Bar disciplinary proceedings, and more.

Principles that apply to ALL attorney timekeeping

No block billing

Timekeeping must be contemporaneous Principles that apply to FOIA, APA, other statutory fee shifts Useful hours; ordinarily necessary to advance litigation

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Maintaining Nonimmigrant Status Nonimmigrants seeking admission or extension must prove

“not inadmissible” 8 CFR 214.1(a)(3).

Valid passport and valid visa (unless waived)

Passport of an alien applying for admission must be valid for ≥ six months from expiration of the contemplated period of stay unless exception.

Passport must be valid at time apply for extension unless exception.

H-1B Compliance

Pay the higher of the actual wage and prevailing wage

What Must You Do to Comply?h-1b compliance is about wages, documentation and notice

Employ the H-1B worker only at the authorized worksite

You may not “bench” employees if there isn’t enough work

More* if H-1B dependent:1-25 workers and 8 H-1B25-50 workers and 13 H-1B>50 workers and 15% H-1B

Promptly notify DOL and USCIS of material changes in employment

Give the H-1B worker the same benefits as similarly situated US workers

Give the H-1B worker a copy of the LCA

Maintain a public access filedocumenting that you’ve done all of these things

* H-1B dependent employers must make additional LCA attestations and recruit for US workers before

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Notice of FilingLabor Condition Application

1. Post in twoconspicuous locations for 10 business days.

2. Record who posted and where

3. Give a copy of the LCA to the employee and get a receipt

How to Meet LCA Notice Requirementskeep confidential segregated from public access to protect employee privacy

NoticeOf

Filing

NoticeOf

Filing

Break Room

OSHA/DOLNotice Wall

Post the LCA for 10 Business DaysGive a Copy of LCA

to H-1B Workerin Two Places

1. Copy of H-1B petition2. Signed proof worker got LCA1. Copy of H-1B petition2. Signed proof worker got LCA

1. Copy of H-1B petition2. Signed proof worker got LCA1. Copy of H-1B petition2. Signed proof worker got LCA

1. Copy of H-1B petition2. Signed receipt worker got LCA1. Copy of H-1B petition2. Signed receipt worker got LCA 1. Original signed LCA

2. Prevailing wage memo/docs3. Actual wage memo/docs4. Benefits memo/docs5. Proof posted LCA for 10 days

1. Original signed LCA2. Prevailing wage memo/docs3. Actual wage memo/docs4. Benefits memo/docs5. Proof posted LCA for 10 days

1. Original signed LCA2. Prevailing wage memo/docs3. Actual wage memo/docs4. Benefits memo/docs5. Proof posted LCA for 10 days

1. Original signed LCA2. Prevailing wage memo/docs3. Actual wage memo/docs4. Benefits memo/docs5. Proof posted LCA for 10 days

1. Original signed LCA2. Prevailing wage memo/docs3. Actual wage memo/docs4. Benefits memo/docs5. Proof posted LCA for 10 days

1. Original signed LCA2. Prevailing wage memo/docs3. Actual wage memo/docs4. Benefits memo/docs5. Proof posted LCA for 10 days

Personnel FileConfidential

Smith, John

LinkerConfidential

John Smith…..5512Greg Jones…..5513Arisa John …..5514Mike Chani…..5515Glenda Loe…..5516Francis Poa…..5517Lessi Pendi…..5518 Public Access File

Not Confidential

5512

How to Organize Public Access Fileskeep confidential segregated from public access to protect employee privacy