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201 caps for first three
1) Family sponsored:
a. Immigration formally begins with a visa petition by a person in the US
b. Once approved, DHS sends a copy to consulate abroad where alien beneficiary applies for visa itself
2) Employment based:
a. Labor certification
b. After labor cert is issued, employer files visa petition with DHS
c. DHS approves petition, and sends a copy to the consulate abroad, where alien beneficiary applies for visa
a. Unmarried sons and daughters of US citizens (23, 400 visas)
b. Spouses & children of LPRs and Unmarried sons & daughters of LPRS (114,200) *only one where LPR can petition
c. Married sons/daughters of US citizens (23,400)Brothers and sisters of citizens (65,000)
Within 5 years preceding application must have had at least 2 years of experience in an occupation that requires at least 2 years of training or experience
Must have HS or equivalent
1. Congress added in 1965 when it repealed the national origins quota
2. Rationale: diversity the flow of immigrants into US by assuring that no one country receives over 25,620 of the family or employment preference admission for any one year
3. Based on birthplace rather than nationality (for deciding whose quota immigrant counts against)
4. § 202(e): special allocation rules for countries at the per-country ceiling. Pro-rata available visas among statutory categories in same ratios. This assures that not all of that country’s numbers are used up by the higher preferences.
P (Iranian citizen) married US citizen, files for adjustment of status. LPR status is granted, on Jan. 13th, where there is contested evidence that he was separated from his wife. He files for divorce on Jan 28th (15 days after getting LPR status). Divorce granted 7 mos. later. He then marries an Iranian citizen.
INS rescinds P’s LPR status on grounds he wasn't eligible for it when it was granted. INS says his marriage was legally dead (he wasn't the “spouse” of a US citizen).
If a marriage is not a sham or fraudulent from its inception, it’s valid for purposes of determining eligibility for adjustment of status until it’s legally dissolved.
Ct rejects INS’ “factually-dead test” as an invasion of privacy.
Ct will still scrutinize evidence of current separation in order to determine whether the initial marriage is a sham or fraudulent.
Restrictions on adjustment of status based on marriages entered while in exclusion or deportation proceedings; bona fide marriage exception
a. Prof’l w/ baccalaureate degrees
b. Skilled/unskilled workers who wd fill positions for which there is a shortage of American workers.
i. Skilled workers Bachelors degree, or job that requires at least 2 yrs of training.
ii. Unskilled workers [10,000 visas]
(employer petition and labor certification)
1) (a.k.a. investor/millionaire category) aliens investing in empl creation, in enterprises creating at least 10 jobs in the US. Baseline minimum investment is $1 mil.
a. §216Aà all 5th-preference aliens and their families receive permanent residence on a conditional basis (maintenance of investment) for 2 yrs.
i. Employer must show special circumstances to get waiver
I. No US workers available or willing to perform such labor, AND
II. Employment of aliens won’t adversely affect wages/working conditions of workers in US similarly employed.
CFR § 656.21(b)(2) detailed regs for employer to advertise, recruit, etc. to establish there are no US workers qualified as able to perform job, in order to get labor cert.
Cannot include reqs for a language other than English. Requiring fluency in a foreign language ensures that an alien will qualify and a native person won't.
Business Necessity Std (2-prong test)à to establish business necessity under CFR §656.21(b)(2), an employer must demonstrate that the job reqs
1) bear a reasonable relationship to the occupation in the context of the employer's business and
2) are essential to perform, in a reasonable manner, the job duties as described by the employer.
Generally, not subject to quotas. Exception only for: H-1B limited to 65,000/yr; H-2B to 66,000/yr (§ 214(g)(1)) (note, quotas don’t apply to spouse & child of principal alien).
2-step Admission Process: (1) Apply for visa at consulate overseas; (2) Present visa to INS inspector at pt-of-entry. (Also, alien who has been admitted as a non-imm can try to change to a different nonimmigrant status under § 248.)
Employer must attest that the job is being offered at prevailing wage & work conditions, and they have notified unions of the petition—no labor strike is in progress). § 212(n)
employer need only file an attestation; doesn’t need formal DOL approval. However, if the DOL finds a violation, employer could owe backpay and be fined
No req that the employer undertake recruitment efforts.
* 218(a)(1)à Requires that employer file a Labor Certification Application w/ DOL showing 1) that there aren’t “able, willing, & qualified” US workers, and 2) that the job won’t adversely affect the wages/working conditions of similarly situated US workers.
* If the Labor Cert is granted, employer must have a petition approved by USCIS before the indiv worker gets visa for entry.
* Employer must undertake recruitment efforts (CFR regs).
* Workers must be provided free housing, meals, workers’ comp ins., return transportation.
* Requires intent not to abandon foreign residence.What is the time scale for this???
* § 214(c)(1)à Requires that employer file a Labor Certification Application w/ DOL (showing that there aren’t “able, willing, & qualified” US workers, and that the job is being offered at prevailing wage & work conditions).
* H-2B designation is avail only “if unemployed persons capable of performing such svc or labor cannot be found in this country.”
* Double Temporariness Reqà alien must be entering temporarily to fill a temporary job. CFR §214.2(H)(6)(ii)à this means employer’s need last for a yr or less. Also, shd be a one-time need, seasonal need, peakload need, or an intermittent need. (Excludes work done by nannies.)
* Admitted for 1 yr initially, w/ 1-yr extensions (up to max of 3 yrs) permittedRequires intent not to abandon foreign residence.
P: Entertainers and AthletesO: “extraordinary ability which has been demonstrated by sustained national or international acclaim”
Homestake (CA Corp) is opening a new goldmine, and purchases a new gold ore processing system from a german mfger. German EEs are supposed to complete work on system on-site in Cali. Didier (German Corp) obtains B-1 visas, consular officers approve the petitions.
INS Operation Instructionà says nonimmigrant can get B-1 visas if they don’t receive salary, and are coming to install/svc/repair the machinery purchased from co outside the US, or to train US workers.
Bricklayers Union challenges the Operation Instruction as being inconsistent w/ statute.
Holding: Operation Instruction is unlawful and violates INA. It violates legislative intent (congressional desire to protect US workers and promote int'l commerce). The W. Germans are performing labor, so they shd be coming in on H-2 visas s.t. the labor certification req.
* INA req that the alien “render his svcs in a capacity that is managerial, executive, or involves specialized knowledge”
* § 101(a)(44)à defines “managerial” and “executive”
* § 214(c)(2)(B)à defines “specialized knowledge” as “special knowledge of the company product and its application in int’l mkts or an advanced lvl of knowledge and processes and procedures of the co.”
* Alien must have been employed by the sponsoring firm for at least 1 yr w/in the last 3 yrs preceding date of his application for entry.
* Time Limits: Manager or executive à 7 yr cap; Specialist à 5 yr cap.
* Intent: To aid multi-national corps manage US operations. (However, statutory language doesn’t expressly exclude sole proprietorships or partnerships).L visa holders need not retain a foreign residence that they do not intend to abandon
E Visas: Treaty Traders (E-1) & Investors (E-2)
¨ Admitted for 1 yr initially, w/ 2 yr extensions (for as long as he continues to undertake the trade/investment)
¨ The alien initiates the visa process himself (no sponsoring entity required) by applying for E visa at a consular office overseas.
¨ E visa holders need not retain a foreign residence that they do not intend to abandon.
¨ Principal alien is of a country w/ whom the US has a treaty of friendship, commerce or navigation, providing for the trade or investor activity.
¨ Employing cos must qualify as “treaty traders/investors”
¨ E-1 Visa: § 101(a)(15)(E)(i): “Treaty Trader”
* Requires entrance for purposes of carrying on “substantial trade,” and principally b/w the US and the treaty country. (Trade must exist at time of visa app.)
¨ E-2 Visa: 101(a)(15)(E)(ii): “Treaty Investor”
* Requires that alien will be developing & directing a “substantial amount” of capital in a “bona fide enterprise” (Substantial investment must be made before visa app.)Aims to permit entry of alien who will develop an enterprise which infuses substantial amt of capital into US economy
¨ Intent not to abandon foreign residence? Not req’d for H-1B, L, & E visas. Required for H-2s & B-1.
¨ Durational Limits? None for E & B-1 visas.Labor Certification? H-1B requires employer attestation only; H-2B requires labor certification; E, L, & B don’t require one
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