Immigration Law and Policy

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					                                    Business Immigration Law
                                      Professor Patrick Shen
                              Law 976-001 - Business Immigration Law
                                            Spring, 2012

                                           Course Description

The course will consist of a broad overview of the visa categories through which U.S. employers may
hire foreign professionals to visit or work on U.S. soil. The student will gain an understanding of
which categories are best suited for the length of assignment, type of industry and job description for
the individual employee. The student will also study in depth the economic, social and political
considerations behind immigration policy and lawmaking in Washington and in the individual states.
Finally, students will learn how to identify the immigration-related pitfalls that U.S. and multinational
corporations encounter and how to establish immigration compliant in-house programs.

                                                Instructor

Patrick is a partner in Fragomen's Washington, D.C. office and serves as the firm’s Director of Global
Compliance. He helps multinational corporations and employers across all sectors establish and
maintain compliant corporate immigration programs.

Before rejoining Fragomen, Patrick was appointed by the President and confirmed unanimously by the
United States Senate as Special Counsel for Immigration-related Unfair Employment Practices in the
Justice Department's Civil Rights Division. He also served as Policy and Planning Director of U.S.
Immigration and Customs Enforcement in the Department of Homeland Security, and Chief
Immigration Counsel of the Senate Judiciary Committee. Earlier in his career, Patrick was a Special
Assistant U.S. Attorney in Brooklyn, NY, an appellate litigator with the Department of Justice’s Office
of Immigration Litigation in the Civil Division, and Assistant District Counsel of the former
Immigration and Naturalization Service (INS) in New York City.

Patrick was a sports reporter in Taiwan prior to attending and graduating from Brigham Young
University Law School. He resides with his wife and two children in Montgomery County, Maryland,
where he has volunteered with his local fire department since October 2001.

Patrick can be reached by phone at (202) 460-5480, or via email at pshen@fragomen.com

For more information about Patrick Shen, please visit http://www.fragomen.com/ourprofessionals
                                        Grading and Examination

The grade in the court will be determined on the student’s performance in a take-home, open book
examination at the end of the semester. Exceptional preparation outside of class and consistent
attendance will be factored in as much as a half-grade increase.

                                              Assigned Text

Students will not be required to purchase a text book for the class. Instead, the instructor will provide
the most up-to-date internet accessible background materials applicable to the topic of each class,
including court cases, agency memoranda, and published articles.

                                        Class Schedule and Topics

Because this course covers several topics that are undergoing judicial or agency review, or otherwise
unsettled, there is significant likelihood of further revisions to the topics and course materials provided
below.

January 9, 2012

              Overview of basics of business immigration visa categories
              The policy and politics of business immigration
              Reading list:
                  o Keeping Talent in America, by Stuart Anderson, National Foundation for
                      American Policy
                      http://www.nfap.com/pdf/KEEPING_TALENT_IN_AMERICA_NFAP_October
                      _2011.pdf
                  o H-B Visa Number, No Relationship to Economic Needs, by John Miano, Center
                      for Immigration Studies
                      http://www.cis.org/articles/2008/back708.pdf
                  o No, the Skills Shortage Doesn’t Exist, by Ron Hira, Rochester Inst. of
                      Technology
                      http://www.informationweek.com/news/205601556

January 16, 2012

              Presidents Day

January 23, 2012

              Overview of non-immigrant entry
                  o Visa vs. Admission
                  o Concept of “dual intent”
                  o Types of stay
                          Business visitors
                          Students and exchange visitors
              Reading list:
                  o Immigration and Nationality Act § 214(b), 8 USC § 1184(b)
                  o Lauvik v. INS, 910 F.2d 658 (9th Cir. 1990)
                  o Fragomen Global Business Immigration Handbook §§ 20:4 through 20:13.
                     (available on Westlaw through “GLOBALIMM § 20:4” et. seq.)

January 30-February 13, 2012 (3 consecutive classes)

          Overview of non-immigrant entry (continued)
              o Temporary professionals

          Reading list:
              o Fragomen Global Business Immigration Handbook §§ 20:14 through 20:17, §§
                 20:20-20:21, §20;24-25)
                 (available on Westlaw through “GLOBALIMM § 20:14” et. seq.)
              o Testimony of Austin T. Fragomen before the Senate Committee on the Judiciary on
                 L Visa reform
                 http://www.aila.org/content/default.aspx?docid=9130
              o Administrator, Wage and Hour Division v. Greater Missouri Medical Pro-Care
                 Providers, Inc., Case No. 2008-LCA-26 (Oct. 11, 2010)
                 http://www.oalj.dol.gov/Decisions/ALJ/LCA/2008/WAGE_and_HOUR_DIVISI_v_
                 GLOBAL_MULTI-
                 MEDIA_P_2008LCA00026_(OCT_18_2011)_152546_CADEC_SD.PDF
              o The “Neufeld Memo”
                 http://www.uscis.gov/USCIS/Laws/Memoranda/2010/H1B%20Employer-
                 Employee%20Memo010810.pdf
              o Broadgate Inc. v. U.S. Citizenship & Immigration Services, 730 F.Supp.2d 240
                 (D.D.C. 2010)
              o Complaint and response in Broadgate
                 http://www.legalactioncenter.org/sites/default/files/docs/lac/BroadgateComplaint-6-
                 8-10.pdf
                 http://www.legalactioncenter.org/sites/default/files/docs/lac/Broadgate-6-25-2010-
                 Opp.pdf

February 20 – February 27, 2012 (2 consecutive classes)

          Lawful permanent resident (LPR) status
              o Labor market test/labor certification
                      “equally” vs. “minimally” qualified
                      Priority dates
                      Quotas
                             Worldwide and per country
              o Categories
                      EB-1 (priority workers)
                      EB-2 (exceptional ability workers)
                      EB-3 (professionals and skilled workers)
                      EB-4 (special immigrants)
                      EB-5 (immigrant investors)
         Reading list:

                o Kazarian v. U.S. Citizenship and Immigration Services, 596 F.3d 1115 (9th Cir.
                  2010)
                o Olivares v. INS, 685 F.2d 1174 (9th Cir. 1982)
                o Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Acting
                  Assoc. Comm. 1998)
                o Fragomen Global Business Immigration Handbook §§ 20:49 through 20:68,
                  §§ 20:71-20:73)
                  (available on Westlaw through “GLOBALIMM § 20:49” et. seq.)
                o Recommendation of USCIS Ombudsman re EB-5 Program (Mar. 18, 2009)
                  http://www.dhs.gov/xlibrary/assets/CIS_Ombudsman_EB-
                  5_Recommendation_3_18_09.pdf

March 5, 2011

         Procedures

                o   Consular processing and consular non-reviewability doctrine
                o   Labor condition application and labor certification/“PERM”
                o   Role of the National Visa Center
                o   Filing application/petition in the U.S.
                o   Change/adjustment of status
                o   Administrative Appeals Office
                o   Judicial Review

         Reading List:
             o USCIS processing, denial of petition, appeals, and post-filing issues, 2 Immigr. Law
                & Business § 12:11 (2011) (available on Westlaw through “IMLB § 12:11”)
             o Application for Nonimmigrant Visa (Form DS-156 or DS-160 (online) and
                instructions
                https://evisaforms.state.gov/ds156.asp
                http://evisaforms.state.gov/
             o Application for Visa and Alien Registration (Form DS-230)
                http://www.state.gov/documents/organization/81807.pdf
             o Petition for a Nonimmigrant Worker (Form I-129) and instructions
                http://www.uscis.gov/files/form/i-129.pdf
                http://www.uscis.gov/files/form/i-129instr.pdf
             o Immigrant Petition for Alien Worker (Form I-140) and instructions
                http://www.uscis.gov/files/form/i-140.pdf
                http://www.uscis.gov/files/form/i-140instr.pdf
             o Application for Travel Document (Form I-131)
                http://www.uscis.gov/files/form/i-131.pdf
                http://www.uscis.gov/files/form/i-131instr.pdf
             o Application for Employment Authorization (Form I-765) and instructions
                http://www.uscis.gov/files/form/i-765.pdf
                http://www.uscis.gov/files/form/i-765instr.pdf
             o Application to Register Permanent Residence or Adjust Status (I-485) and
                instructions
               http://www.uscis.gov/files/form/i-485.pdf
               http://www.uscis.gov/files/form/i-485instr.pdf
             o Labor Condition Application for nonimmigrant workers (Form ETA 9035) and
               instructions
               http://www.foreignlaborcert.doleta.gov/pdf/ETA_Form_9035CP_2009_Revised.pdf
               http://www.foreignlaborcert.doleta.gov/pdf/ETA_Form_9035_2009_Revised.pdf
             o Application for Permanent Employment Certification (Form ETA 9089) and
               instructions
               http://www.foreignlaborcert.doleta.gov/pdf/9089form.pdf
               http://www.foreignlaborcert.doleta.gov/pdf/9089inst.pdf

March 12, 2012

      Spring break week

March 19, 2012

      Enforcement and Compliance (Part I)
          o Dept. of Labor and USCIS inspections
                 PERM and LCA audit
                 Fraud Detection and National Security (FDNS) inspections
                 “VIBE”

      Reading list:
          o Labor Condition Application – Basic Requirements, H-1B Handbook §§ 2:10-2:11
             (available on Westlaw through “H1B HB § 2:10 et seq. “)
          o Watson v. U.S., 240 Fed. Appx. 410, 2007 WL 1655231 (Fed Cir. 2007)

March 26, 2012

      Enforcement and Compliance (Part II)
          o Worksite Enforcement (Form I-9) audits
          o E-Verify proliferation

          o Reading list:
                United States v. Ketchikan Drywall Service, Inc., 10 OCAHO No. 1139
                  (OCAHO 2011)
                  http://www.justice.gov/eoir/OcahoMain/publisheddecisions/Looseleaf/Volume10
                  /1139.pdf

                    Austin Fragomen and Patrick Shen, Enforcement of Immigration Laws Against
                     Employers in the Obama Administration (to be distributed by instructor)

                    Testimony of Austin T. Fragomen before the House Ways and Means
                     Committee, Social Security Subcommittee (April 14, 2011)
                     http://waysandmeans.house.gov/UploadedFiles/Fragomen_Embargoed_Testimon
                     y.pdf
April 2, 2012

      Enforcement and Compliance (Part III)
          o E-Verify
          o Anti-discrimination concerns

      Reading list:
          o Government Accountability Office (GAO) testimony before House Ways and Means
             Committee, Subcommittee on Social Security (April 14, 2011)
             http://www.gao.gov/new.items/d11522t.pdf
          o OSC Farmland settlement
             http://www.justice.gov/opa/pr/2011/August/11-crt-1070.html
          o Aramark Facility Services v. SEIU, 530 F.3d 817 (9th Cir. 2008)
          o Patrick Shen, The History and Functions of the Office of Special Counsel for
            Immigration-Related Unfair Employment Practices (to be distributed by instructor)

April 9, 2012

      Policy and legislative trends
           o Federal preemption and state legislation
           o Legislative outlook

      Reading list:
          o De Canas v. Bica, 424 U.S. 351 (1976)
          o Chamber of Commerce v. Whiting, 563 U.S. ___, 131 S. Ct. 1938 (2011)
          o Immigration Legislation and Issues in the 112th Congress, Congressional Research
             Service (August 2011)
             http://www.aila.org/content/default.aspx?bc=1016%7C12191%7C17311%7C37388

April 16, 2012

      Comprehensive Review

April 23, 2012

      Mock Exam

				
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