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Immigration Law Subject Matter Outline

The examination is 6 hours in length and consists of two 3-hour sessions. The morning session includes eleven descriptive situations and a total of 56 objective and short essay questions regarding those facts. The exam also includes four situational multiple-choice questions. Applicants then have a two-hour lunch break before resuming the exam. The afternoon session includes a series of 82 objective and short essay questions including some true/false, some multiple choice and some short answer. All questions are allocated "points" and require responses that demonstrate accuracy, clarity, reasoning, recognition of the problem presented, knowledge of the principle of law involved and correct application of those principles. Full or partial credit for answers may be given.

Subject Matter - The examination shall cover the applicant's knowledge and application of the law in the following topics:

(A) Family Immigration.

(B) Employment Related Immigration.

(C) Naturalization.

(D) Administrative Hearings and Appeals.
-including deportation, exclusion, bond redetermination, and other administrative matters;

(E) Administrative Proceedings and Review in Judicial Courts.
-such as applications for habeas corpus, mandamus and declaratory judgments; criminal matters involving immigration law; petitions for review in judicial courts; and ancillary proceedings in judicial courts.

(F) Asylum and Refugee Status.

(G) Employer Verification, Sanctions, Document Fraud, Bond and Custody, Rescission, Registry, and Fine Proceedings.

Proposed Study Concepts including, but not limited to:

a) AC 21

b) Portability

c) Grace period follow layoffs

d) 7th year extension of H-1Bs

e) $1K employer contribution exemption for non profit

f) LCA’s

g) Prevailing Wage

h) Premium Processing

i) H-1B Cap

j) Blanket L-1s

k) Eligibility for Sp. for work (sp of E & L’s)

l) Concurrent filings of I-140/I-485

m) RIR

n) Special Immigrant/Religious Worker

o) Special Immigrant/Juvenile

p) VAWA

q) EAD’s within 90 days

r) TPS issues

s) Automatic Revalidation of Visa 30 day rule

t) EAD Clock Stopping/Asylum

u) AR 11 Change of Address & Registration

v) Unlawful Presence Asylum

w) Patriot Act

x) Security Clearances

y) 3rd Country Consular Processing

z) “homeless” cases

aa) Child Protection Act

bb) Life Act

cc) Child Citizen Act

dd) Document Fraud

ee) Orphans

Sample questions:
(Please note that sample questions were taken from previous exams and are included only as a reference for types of questions and suggested answers. They are not intended for use as legal authority.)

1. FACTS:

Henry, a citizen of the U.K., has resided in Mexico as a lawful permanent resident for the last 10 years, having left the U.K. abruptly after “some legal problems.” He obtained his Mexican residence as a result of marriage to a Mexican citizen, Maria. Three years ago, Henry formed a Mexican company to operate a fast food restaurant in Ciudad Juarez, Mexico. The restaurant is named “Gringos” and serves a combination of American and Mexican food. The restaurant was so successful the company opened two more restaurants in northern Mexico, along the Texas border, within six months of when it opened the first restaurant. In the following six months, Henry, through a North Carolina company, opened three restaurants in North Carolina. In the last two years, he has opened three more restaurants in Mexico and five more in the Carolinas. In the next several years, he plans to open five more restaurants per year in the U.S.

Prior to leaving the U.K., Henry accumulated “several million dollars” in a Cayman Islands bank account. In 1990, he transferred $2,500,000.00 from the Cayman account to his money market account in the United States, which he used to purchase a farm in North Carolina. He has arranged a line of credit, secured by the farm, to use as the source of capital for each of the restaurants opened in the U.S. Each restaurant employs two workers and involves an investment of $100,000.00 (capitalized with a $60,000.00 draw on the line of credit, coupled with a $40,000.00 loan secured by the assets of the new restaurant).

When Henry opened his first restaurant, he did so by buying a North Carolina company that had operated a small restaurant similar to Gringos for the prior 10 years. He did this to eliminate competition, to avoid having to set up a U.S. company, and so that he could begin operations as quickly as possible by acquiring a location that already had equipment and furnishings on site. The North Carolina company is owned 50% by Henry and 50% by his wife, Maria. The Mexican company is owned 50% by Henry and 50% by a group of Mexican investors.

Rafael, Maria’s brother, has been Henry’s “right hand man” in establishing the new restaurants. He has supervised all of the operations involved in locating the site, leasing the buildings, constructing the restaurants and hiring the initial staff. To date, he has been entering the U.S. on a B-1 visa, but often gets hassled by U.S. Immigration border officers about the frequency of his visits. Rafael’s wife, Gloria, is a computer systems analyst with a two-year Associate’s degree which she obtained in 1991. Rafael and Gloria are citizens of Mexico.

Henry has retained you to analyze his visa options for living and working in the United States. He has also told you that he promised Rafael that he would bring him and Gloria to the United States to live and work for him “as long as Rafael wants.” Henry has asked you to also analyze visa options for Rafael and Gloria.

In reference to Henry’s request, please analyze each visa option that may be available. Discuss all relevant issues including periods of validity, evidentiary requirements, and appropriate filing locations for each step of the process. (70 points)

I. Henry (31 points)

a. Please discuss Henry’s non-immigrant visa options, including periods of validity, eligibility and proof requirements, application procedures and appropriate filing locations.

b. Please discuss his permanent resident options, giving eligibility and proof requirements, application procedures and appropriate filing locations.

II. Rafael (18 points)

a. Please discuss Rafael’s non-immigrant visa options, including periods of validity, eligibility and proof requirements, application procedures and appropriate filing locations.

b. Please discuss his permanent resident options, giving eligibility and proof requirements, application procedures and appropriate filing locations.

III. Gloria (21 points)

a. Please discuss Gloria’s non-immigrant visa options, including periods of validity, eligibility and proof requirements, application procedures and appropriate filing locations.

b. Please discuss her permanent resident options, giving eligibility and proof requirements, application procedures and appropriate filing locations.

ANSWERS:

I. HENRY - (31 points)

A. E-2 VISA:

1. Nationality:

Henry is a citizen of the U.K. but, having lived in Mexico for 10 years, may not be able to satisfy the “resident of the British Isles” requirement. (1 point) Convention to Regulate Commerce (Article I) 8 Stat. 228; TS 110; Bevans 49. (7/3/1815). Because he has been a resident of Mexico for 10 years, he may be able to obtain Mexican Citizenship to qualify for an E-2 visa under NAFTA. (1 point) Henry is not presently a Mexican citizen. Therefore he cannot obtain E-2 through NAFTA. Also, since his wife, Maria, owns 50% of the American operation, the company should qualify as a Mexican company through her (If nationality is satisfied through Maria, however, an E-2 visa would not provide employment authorization for Henry). F.A.M. §41.51, N.10. (1 point)

2. Marginality:

A) The investment meets the marginality requirements. The company currently operates eight restaurants with sixteen employees in the United States. They also have the profits from these eight restaurants. Thus the investment is not solely for the purpose of earning a living. (1 point)

B) Further, Henry and Maria do not appear to be involved in the day-to-day operation of the businesses, but function primarily to manage and oversee their investment. (1 point) F.A.M. §41.51, N.10.

3. Proportionality;

The total investment to date in the United States is $800,000.00. The money coming from the line of credit (1 point)which is secured by the farm qualifies as investment funds and total approximately $480,000.00 . This makes the investment proportionality 60%. (1 point) This may not be enough to satisfy the proportionality sliding scale (1 point) and the client may need to be advised to increase the cash percentage in the overall investment. It should also be noted, however, that the sliding scale is not a “bright line test” (1 point) and, under all the facts and strengths of this case, 60% may be considered to be satisfied proportionately. F.A.M. §41.51, N.7 and N.9.

4. Where to file?

File at a U.S. Consul in Mexico with E visa jurisdiction. (1 point)

B. L-1, EB-1C:

1. Qualifying organization:

A) The Mexican company has been existing and doing business for three years. (1 point)

B) The U.S. company has been existing and doing business for at least two years. (1 point)

2. Affiliate:

Henry owns 50% of the Mexican company and 50% of the U.S. company. With regard to the U.S. company, there is probably no question of control (1 point) given the family relationship. It may be advisable, however, to acquire a shareholder agreement (1 point) between Henry and Maria indicating that Henry would have the right to make any decisions if they disagree. Because Henry only owns 50% of the Mexican company (1 point) he clearly would not have sufficient control for L-1 purposes. In this regard, he would need to also obtain a shareholder agreement (1 point) giving Henry ultimate control. 8 C.F.R. § 214.2 (I)(1)(ii)(L).

3. Managerial/Executive Capacity:

Henry should qualify under either “managerial” or “executive” capacity, (1 point) as he manages the entire organization and has ultimate executive authority. Further, his time is spent primarily in these capacities (1 point) and he does not appear to be involved in the day to day operations of the restaurants or the establishment of the same. 8 C.F.R. § 214.2 (I)(ii)(B) and (C).

4. Conclusion:

If control can be established, either L-1 or EB-1C should be available. (1 point)

5. Where to file: At Texas Service Center for petition,(1 point) and visa stamp issuance at Consulate. (1 point)

C. EB-5:

1. New enterprise:

Because the U.S. corporation was acquired rather than formed by Henry, there is a question as to when that company was originally established. If it was established prior to November 29, 1990, the U.S. company may have to be reorganized into a new enterprise. (1 point) 8 C.F.R. § 214.6 (e) “New” Commercial Enterprise. (1 point)

2. Amount of Investment:

To date the total capital investment in the United States is only $480,000.00. Loans secured by assets of business do not count. (1 point) During the next year, an additional $300,000.00 ($60,000.00 x 5 stores) will be invested. If the enterprise is in a rural area or designated high unemployment area, (1 point) this investment will be sufficient once it goes beyond $500,000.00. If it is not in such an area, the capital investment will need to be increased to $1,000,000.00, (1 point) either by waiting for four more restaurants to be opened or by increasing the percentage of capital coming from the line of credit. 8 C.F.R. § 204.6 (e) “Capital”; and “Required Amounts of Capital” 8 U.S.C. 1153 (b)(5).

3. Creation of Employment:

8 U.S.C. 1153 (b)(5) requires the investment to create employment for at least 10 full-time U.S. workers. If the two employees per restaurant are full-time workers, this requirement would be met. If they are part-time workers, the application will need to wait until sufficient part-time employees have been hired to equal ten full-time employees.(1 point) 8 C.F.R. § 206.4(f); 8 C.F.R. § 204.6(e) “Employee”, “Full-Time Employee” and “Qualifying Employee.”

4. Lawful Source of Income:

Although Henry’s funds have moved through several different accounts in his name (Cayman Island account, U.S. bank account, U.S. real estate) the ultimate source of his “accumulated” funds should be determined.(1 point) He indicated that he left the U.K. abruptly after some “legal problems.” If these funds were accumulated through illegal activity, they may not be eligible for EB-5 investment purposes. 8 C.F.R. § 204.6(e) “Capital.”

5. Where to file:

At Texas Service Center file the I-526 (1 point) and, upon approval, immigrant visa processing at the U.S. Consulate or through the INS if adjusting.(1 point)

II. RAFAEL - (18 points)

A. E-2 Employee:

1. Nationality:

If nationality of enterprise is Mexican then Rafael would satisfy the citizenship requirement (assuming Rafael is Mexican citizen). (1 point)

2. Qualifying Position:

Rafael may be able to qualify either as a “supervisory” or as an “essential” employee.(2 points) His position involves significantly high level control over the establishment of new restaurants and he reports directly to the president of the company. (1 point) He should also qualify as an essential employee, in that, the expansion and opening of each restaurant is dependent upon his activities and skills.(1 point) One of the drawbacks to qualifying as an essential employee is the need to train U.S. workers for the position, unless it can be shown that such is not feasible. An argument may be made, however, that his job involves working in an ongoing “start-up/training” mode. F.A.M. § 41.51, N-13. With regard to supervisory employee, the supervisory element of the position needs to be the principle and primary function and not an incidental or collateral function. Factors to be considered are the duties of the position, the title for the position, the position’s place in the firm’s organizational structure, the degree to which the applicant will have ultimate control and responsibility for he firm’s overall operations or a major component thereof, the number and skill levels of the employees the applicant will supervise, the pay level and whether the applicant possesses qualifying supervisory experience. F.A.M. § 41.51, N 13.2.

3. Where to File:
U.S. Consulate abroad. (1 point)

B. L-1:

1. One year immediately preceding time of entry employment abroad in the same capacity. (1 point)

2. Managerial Capacity:

Rafael would appear to qualify was a manager, both with regards to his employment abroad (1 point) and his intended employment in the United States. (1 point) In this regard, he supervises and controls an essential function within the organization, (1 point) probably has the authority to hire and fire local contractors and exercises full discretionary authority over the establishment of each new business. 8 C.F.R. § 214.2(I)(1)(ii)(B).

3. Specialized Knowledge:

Rafael may also qualify as a specialized knowledge (1 point) individual
regarding the company’s product, services, equipment techniques, and management. 8 C.F.R. § 214.2 (I)(1)(ii)(D).

4. Where to File: Texas Service Center. (1 point)

C. EB-1C:

1. First preference priority worker as Manager. (1 point)

2. Where to File: Texas Service Center (1 point)

D. Labor Certification/Third Preference:

1. Experience Gained with Same Employer:

A) Related Companies: The issue here is whether the Mexican and Texas companies are “related.” If they are, then Rafael’s experience working with the Mexican company will be considered to have been gained with the same employer.(1 point) In order to obtain a labor certification, it would be necessary for the employer to show that Rafael has experience and qualifications which he received outside of the experience he gained with the Mexican company. Matter of Inmos, 88-INA-326 (BALCA 1990).

B) Infeasibility to Train: Assuming a finding of related companies, the employer may still be able to overcome this issue by establishing that it is not feasible to train a U.S. worker for this position. Matter of VAC-TEC Systems, Inc., 88-INA-353 (BALCA 1989). (1 point) The employer may be able to argue that each new restaurant established is a training procedure in and of itself, and that the people who are trained are left in that position to operate that restaurant. Further, the presence of Rafael is, in fact, creating employment in the United States rather than competing with U.S. workers.

2. How to Qualify:

A) Professional - Bachelor’s Degree. (1 point)

B) Skilled Worker. (1 point)

III. Gloria (21 points)

A. H-1B:

1. Cap Issues and Availability (1 point)

2. Specialty Occupation:

Gloria may be able to obtain an H-1B visa if she can obtain a job offer with a U.S. employer in a specialty occupation.(1 point) “Specialty Occupation” means an occupation which requires the theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor which require the obtainment of a Bachelors Degree or higher (1 point) in a specific specialty, or its equivalent,(1 point) as a minimum for entry into the occupation in the United States. 8 C.F.R. § 214.2(h)(4)(ii)(4). A Computer Systems Analyst is generally considered to be a specialty occupation.

3. Equivalence to Completion of a College Degree:

If Gloria’s Associate’s Degree (1 point) is in the computer field and she has six years of progressively responsible experience as a Computer Systems analyst, she may be able to establish that she has the equivalent to a Bachelor’s Degree in Computer Science. In order to obtain the H-1B visa, it will be essential for Gloria to establish this equivalency. In this regard, her education should be evaluated by a reliable credentials evaluation service which specializes in evaluating foreign educational credentials. 8 C.F.R. § 214.2(h)(4)(ii)(D)(3). In addition to the evaluation, documentation should be submitted with regard to the experience that she has gained since she received her degree in 1991. Because it is an Associate’s degree, she will need to show that she has at least three years of work experience for each year of college level training that she lacks (1 point). Assuming that her Associate’s Degree equates to two years of college level training, she will need six years of experience in this specialty, in order to equate to a Bachelor’s Degree. It must be clearly demonstrated that Gloria’s work experience included the theoretical and practical application of the specialized knowledge required by the specialty occupation (1 point); that her experience was gained while working with others who have a degree or its equivalence in this specialty occupation; and that she has a recognition of expertise in the specialty documented by recognized authorities, membership in a recognized specialty association, licensure or other similar documentation (1 point). 8 C.F.R. § 214.2(h)(4)(iii)(D)(5).

4. Procedures:

A) Obtain figure for the prevailing wage for the position. (1 point)

B) Complete and submit ETA-9035, Labor Condition Application with the Department of Labor. (1 point)

C) Public Access File (Employer) (1 point)

D) INS Petition (Texas) (1 point)

5. Where to File:

A) ETA-9035: (DOL) (1 point)

B) Public Access: (Employer) (1 point)

C) INS Petition: (Texas). (1 point)

B. TN:

1. Nationality: Mexico is NAFTA member. (1 point)

2. Listed Occupation:

Computer Systems Analyst is listed as a profession in Appendix 1603.D.1 to Annex 1603 of the North American Free Trade Agreement. (1 point)

3. Qualifications of Alien:

Appendix 1603.D.1 indicates that a TN Professional qualifies as a Computer Systems Analyst if they have a post secondary diploma or certificate, and at least three years experience.(1 point) 8 C.F.R. § 214.6(c).

4. Procedures:

A) Because Gloria is a Mexican citizen, she is subject to the quota of 5,500 TN nonimmigrants annually. 8 C.F.R. § 214.6(d)(7). (1 point)

B) Employer must file Form I-129, Petition for Nonimmigrant Worker, with the Texas Service Center. 8 C.F.R. § 214.6(d). (1 point)

C) She will then need to obtain a visa from the U.S. Consulate in order to obtain admission to the United States. 8 C.F.R. § 214.6(f)(2). (1 point)

2. A petition for a researcher who is outstanding in an academic field must include evidence that: (2 points)

A. The researcher is recognized internationally as outstanding in the academic field specified in the petition.

B. The researcher has at least three years experience in teaching and/or research in the academic field.

C. The researcher has an offer of employment from a prospective U.S. employer.

D. All of the above.

E. None of the above.

F. A and C only.

G. A and B only.

ANSWER: (D)

3. An internationally renowned youth soccer coach with exceptional ability in the field of athletics is eligible to file for EB-2 employment-based immigrant status. (1 point)

A. True

B. False

Answer: (A) - 1995 General Counsel’s opinion finding athletics to be included with the “arts”.

4. Mr. Itsch, owner of Jacques’ Sock Shop, filed an application for labor certification on behalf of his manager, Biff Burgundy. He has received a Final Determination, denying certification.

A. Biff wants to appeal the denial. Can he do so? Why or why not? (2 points)

B. Assume that no appeal is taken. If the denial is not based on “prevailing wage,” how long must Mr. Itsch wait to file another application on Biff’s behalf? (2 points)

C. Assume that no appeal is taken. If the denial is based on “prevailing wage,” how long must Mr. Itsch wait to file another application on Biff’s behalf? (2 points)

ANSWERS:

A. No. Appeal may only be filed in conjunction with appeal by Employer. 20 CFR §656.26(a)

B. 6 months, 20 CFR §656.29

C. If denied for prevailing wage, he may refile immediately.

5. In an asylum context, an individual who has suffered past persecution is presumed to have a well-founded fear of future persecution. (1 point)

A. True

B. False

Answer: (A)

6. An asylum applicant in deportation proceedings has the affirmative burden of proving that there is nowhere in his country that he could be safe from persecution. (1 point)

A. True

B. False

Answer: (B)