496 KURZBAN’S IMMIGRATION LAW SOURCEBOOK
the immediate grant of employment authorization upon obtaining asylum and order DHS to comply
with the law to provide such authorization for entire asylum period]. An asylee no longer needs to wait
until s/ he gets an EAD card to obtain a Social Security card. Persons granted asylum or refugee status
can now receive unrestricted Social Security cards. Memo, Clay-Thompson, Acting Director ORR,
HHS, State Letter #01-09 (Apr. 5, 2001), reprinted in 78 No. 19 Interpreter Releases 812, 819–23
(May 14, 2001); Memo, Limon, Director ORR, HHS, State Letter #00-14 (July 12, 2000), reprinted in
78 No. 19 Interpreter Releases 812, 824–25 (May 14, 2001).
Refugee Travel Document. A person granted refugee status under INA §207 or asylum under INA
§208 may obtain a refugee travel document for one year’s duration by filing an I-131 application.
INA §208(c)(1)(C), 8 U.S.C. §1158(c)(1)(C), 8 C.F.R. §223.2. A returning asylee with an expired
refugee travel document is inadmissible and may not resume her status unless she applies for and is
granted a refugee travel document under 8 C.F.R. §223.2(b)(2)(ii) at a U.S. Consulate or port of entry,
granted parole under INA §212(d)(5) or granted refugee status upon a new application at the border.
Memo, Cooper, Gen. Counsel, HXCOU90/15-P, reprinted in 77 No. 37 Interpreter Releases 1384,
1391–98 (Sept. 25, 2000). If s/he is deemed inadmissible, INS may terminate asylum and initiate re-
moval proceedings. 8 C.F.R. §§208.24(f), 1208.24(f). However, the “alien’s lack of an advance parole
document or his inadmissibility to the United States created by the lack of a valid refugee travel docu-
ment should be viewed in light of the compelling circumstances that led to the alien’s status as a refu-
gee or asylee. Accordingly, it is often appropriate for INS to facilitate the return of refugees and
asylees to the United States when they are stranded overseas due to the absence or expiration of a refu-
gee travel document.” Memo, Cooper, supra. In determining parole the DD should consider factors
that include: (1) compelling circumstances that led to the original refugee/asylum approval; (2) the
circumstances surrounding the expiration or failure to obtain the refugee travel document; (3) whether
the person has returned to his or her country and why; (4) family reunification; and (5) the person’s
current circumstances. Id. A person’s return to his country of origin after obtaining asylum/refugee
status may endanger his continued status because he may be considered to have “voluntarily re-availed
himself of the protection of his country of nationality.” 1951 Convention Relating to the Status of
Refugees, Article 1(C)(1). A return to the country of origin is not, however, a per se ground to revoke
asylum/refugee status. Rather “a fact-specific investigation is necessary.” Memo, Cooper, supra.
V. ADJUSTMENT OF STATUS AND SPECIAL LEGISLATION
A. In General. A person granted refugee status or asylum may apply for permanent residence in the
U.S. after one year. The one year begins from the time the person is admitted as a refugee, the date the
person receives a final grant of asylum, or, if in the U.S., the date the I-730 was approved. Memo,
Yates, Deputy Ex. Assoc. Comm. Office of Field Operations, HQ 70/20.11, 70/6.1.5., 70/6.1.6,
70/34.2 (May 15, 2000), reprinted in 77 No. 24 Interpreter Releases 832, 837–48 (June 26, 2000).
Refugees and asylees adjust under INA §209, not under §245, and they do not need to leave the U.S. to
adjust even if they initially entered without inspection. Derivative family members may have status
adjusted even where principal refugee has not or will not. Memo Gibson, Acting Assoc. Comm., Ex-
aminations, CO 209-P (Oct. 4, 1985), reprinted in 62 Interpreter Releases 1030–31 (Oct. 25, 1985).
However, they must continue to be a spouse or child (under 21) at the time of the adjustment or they
are ineligible to adjust through the principal refugee/asylee. Legal Opinion, Virtue, INS, CO 209(b)
(July 27, 1989). Congress has separately addressed the problem of children who “age-out” during the
adjustment process. Under the Child Status Protection Act (CSPA), as long as the child is unmarried,
was under 21 at the time the principal parent “applied for asylum,” and was listed as a child, s/he
“shall continue to be classified as a child for purposes” of asylum/refugee processing, I-730 and ad-
justment. INA §208(b)(3)(B), 8 U.S.C. §1158(b)(3)(B). Applied for asylum means that USCIS had to
receive the I-589 before the child turned 21. If the I-589 is filed (received by USCIS) before the child
turns 21 s/he will continue to be treated as a child under the CSPA. Memo, Yates, Assoc. Dir. Opera-
tions, USCIS, HQOPRD 70/6.1 (Aug. 17, 2004), posted on AILA InfoNet at Doc. No. 04091561;
Memo, Langlois, Asylum Office, HQIAO 120/12.9 (Aug. 7, 2002), posted on AILA InfoNet at Doc.
No 02090531 (Sept. 5, 2002). However, a child who later marries remains ineligible for CSPA bene-
fits. Akhtar v. Gonzales, 406 F.3d 399, 406–08 (6th Cir. 2005) [Rejected equal protection and due
process challenge where child was married and was otherwise ineligible for CSPA because application
was not pending as his mother was granted asylum before the effective date of CSPA]. A refugee
placed in removal proceedings may apply for adjustment of status under INA §209 and may apply for
CHAPTER 4 • FLEEING PERSECUTION: REFUGEES, ASYLEES, AND OTHERS 497
a waiver of inadmissibility in connection with the adjustment application under INA §209(c). Matter
of H-N-, 22 I&N Dec. 1039 (BIA 1999); 8 C.F.R. §§209.2, 1209.2. INA §212(e) is also not a bar to
obtaining residency. Memo, Yates, supra.
Under special legislation persons who are paroled into the U.S. may also seek residence after one
year. Prior to the Refugee Act of 1980, groups of individuals that were fleeing persecution were pa-
roled into the U.S. by the AG pursuant to INA §212(d)(5). As they were not provided any permanent
status or even formal admission by their parole, Congress passed legislation to grant them permanent
residence. Among the Acts which were passed in this manner were the Indochinese Refugee Adjust-
ment Act, PL 95-145, Title 1; the Hungarian Refugee Act, PL 85-559, 72 Stat. 419; the Cuban Refugee
Adjustment Act of 1966, PL 89-732; the Cuban-Haitian Adjustment Act, PL 99-603, 100 Stat. 3359
and the Nicaraguan Adjustment \ and Central American Relief Act, PL 105-100, 111 Stat. 2160, Tit. II,
Div. A (Nov. 19, 1997) as amended by PL 105-139, 111 Stat. 2644 (Dec. 2, 1997).
Only the Cuban Refugee Adjustment Act is open-ended and provides no cutoff date for applicants.
Under the Cuban Refugee Adjustment Act, any national of Cuba or the immediate relative of any Cu-
ban national (including after acquired spouses and children) can apply for permanent residence in the
U.S. one year after they have been inspected, admitted or paroled into the country. The spouse or child
of the Cuban need not be a native or citizen of Cuba as long as they reside with the Cuban. Gonzalez v.
McNary, 980 F.2d 1418 (11th Cir. 1993) [Where Cuban native died during pendency of application,
spouse and child had no right to residency]. A battered spouse/child or one subject to extreme cruelty
need not reside with the Cuban spouse/parent to petition. Also a battered spouse may self-petition for
2 years after the termination of the marriage if there is a demonstrated connection between the termina-
tion of the marriage and the battering or extreme cruelty by the Cuban spouse. PL 109-162, 119 Stat.
2960 (Jan. 5, 2006) Sec.823 (a) of the Violence Against Women and Department of Justice Reauthori-
zation Act. Even in the absence of any proof of abuse, the Cuban Adjustment Act permits a self-
petition for two years after the Cuban spouse dies as long as the non-Cuban resided with the Cuban
spouse. Id. However, a spouse is not eligible for Cuban Adjustment if his or her Cuban spouse was not
paroled, or inspected and admitted as a nonimmigrant. Matter of ____(AAO Feb. 18, 2005), 2005 WL
2101359 [Cuban husband who entered U.S. as refugee and was therefore not paroled, or inspected and
admitted as an NIV, could not transmit Cuban adjustment benefits to non-Cuban spouse]. The spouse
is also not eligible if their Cuban spouse is now a USC. There is no bar for Cubans to obtain the benefit
of the Adjustment Act even if they have no fear of returning to Cuba and would not qualify for asylum.
For example, a Cuban national who enters the U.S. from Spain on a B-2 (tourist) visa can become an
LPR of the U.S., without proving fear of persecution, if he simply can remain in the U.S. for one year
because he was inspected and admitted as an NIV. A Cuban national may even adjust after entering
under the visa waiver program. In re A76 940 152 (AAO Aug 10, 2000), reported in 77 No. 34 Inter-
preter Releases 1291, 1292 (Sept. 1, 2000). A Cuban born or native to Cuba may also adjust even if
s/he entered the U.S. as a citizen of another country. Matter of ___ (AAO Dec. 16, 2002), reported in
80 No. 5 Interpreter Releases 156 (Feb. 3, 2003) [Cuban national who entered on Venezuelan passport
as Venezuelan citizen is eligible for adjustment of status]. Guidelines from INS have also clarified that
a Cuban who does not arrive at a designated port of entry (EWI) may still qualify for adjustment.
Memo, Meissner, Comm. “Eligibility for Permanent Residence Under the Cuban Adjustment Act De-
spite Having Arrived at a Place Other than a Designated Port of Entry” HQCOU 120/17-P (Apr. 19,
1999), reprinted in 76 No. 17 Interpreter Releases 676, 684–90 (May 3, 1999) [EWI eligible if he sur-
renders to the Service and the Service paroles him pending a final determination or an IJ releases him
under §236, because parole and bond under §236 should be treated as a parole]. In addition, an appli-
cant for adjustment may apply to the IJ for adjustment even if he is an arriving alien. Matter of Artigas,
23 I&N Dec. 99 (BIA 2001). The effective date of the acquisition of LPR status is 30 months prior to
the grant of residency. For purpose of former INA §212(c), 8 U.S.C. §1182(c), LPR status was meas-
ured from the beginning of the 30-month period. Matter of Rivera-Rioseco, 19 I&N Dec. 833 (BIA
1988). Presumably the same would apply for cancellation of removal. The Cuban Refugee Adjustment
Act has been conditionally repealed upon the determination by the President under §203(c)(3) of PL
104-114 (Cuban Liberty and Democratic Solidarity Act) that a democratically elected government in
Cuba is in power. IIRIRA §606. But it shall not apply to those whose applications for adjustment are
pending on the date of repeal. The Nicaraguan Adjustment and Central American Relief Act, PL 105-
100, 111 Stat. 2160, Tit. II, Div. A (Nov. 19, 1997) as amended by PL 105-139, 111 Stat. 2644 (Dec. 2,
1997) provides for A/S for Cubans, their spouses, children, and sons and daughters who were continu-
ously physically present in U.S. since Dec. 1, 1995. This includes Cubans who entered EWI and who
498 KURZBAN’S IMMIGRATION LAW SOURCEBOOK
would not otherwise qualify for the Cuban Refugee Adjustment Act because they are EWIs. The Act also
provides for the A/S for Nicaraguans who were continuously physically present since Dec. 1, 1995.
B. Adjustment of Status
1. Refugees—A refugee who is admitted into the U.S. can adjust his or her status to LPR after one
year of continuous physical presence. INA §209(a)(1), 8 U.S.C. §1159(a)(1), 8 C.F.R. §§209.1,
1209.1. Spouses and children may be admitted and adjusted even if not refugees themselves. INA
§207(c)(2), 8 U.S.C. §1157(c)(2).
Certain grounds of inadmissibility are automatically waived for refugees and asylees: INA
§212(a)(4) [public charge]; §212(a)(5) [labor certification]; and §212(a)(7)(A) [immigrant docu-
mentation requirement]. Certain grounds cannot be waived: INA §212(a)(2)(C) [reason to believe
the applicant is or has been a controlled substance trafficker]; and §212(a)(3)(A), (B), (C), and (E)
[security, terrorist, foreign policy and Nazi persecutor grounds]. All other grounds of inadmissibil-
ity, including criminal grounds, may be waived under INA §209(c). However, a waiver for serious
(“violent or dangerous”) crimes will almost never be granted absent extraordinary circumstances
such as those involving national security or foreign policy considerations or where the denial
would result in exceptional and extremely unusual hardship. Matter of Jean, 23 I&N Dec. 373,
381–84 (AG 2002) [Denied adjustment to person convicted of manslaughter in the death of a baby
and reversed BIA where the focus was on the family’s hardship without considering the nature of
the criminal offense]. But see Rivas-Gomez v. Gonzales, 441 F.3d 1072, 1074–79 (9th Cir. 2006)
[Reversed IJ for denying a INA §209(c) waiver where respondent was convicted of an aggravated
felony (statutory rape) and IJ determined there was insufficient hardship without first determining
that the crime was a violent or dangerous felony]. An application for a waiver is typically filed on
an I-602. USCIS policy provides that except for §212(a)(1) [health related grounds] with its own
unique waiver under §212(g), an adjudicator may grant a waiver without an I-602 “provided that
USCIS records and other information available to the adjudicator contain sufficient information to
assess eligibility for the waiver and there is no evidence to suggest that negative factors would ad-
versely impact the exercise of discretion to grant a waiver.” Memo, Aytes, Acting Dir. Operations,
USCIS, HQPRD 70/23.10 (Oct. 31, 2005), posted on AILA InfoNet at Doc. No. 05110962; AFM
The UNHCR advises that the grant of LPR status to a refugee or asylee does not end the indi-
vidual’s status as a refugee or asylee. Letter, Painter, Senior Protection Officer, UNHCR (Feb. 28,
2003), reprinted in 80 No. 11 Interpreter Releases 413–14, 423–29 (Mar. 17, 2003).
2. Asylees—There is no longer a cap on adjustment of status for persons who are asylees or refu-
gees. PL 109-13, 119 Stat. 231 (May 11, 2005), Division B, “REAL ID Act of 2005,” Section
101(g). For an asylee/refugee to adjust his status he must: (1) apply for adjustment; (2) be physi-
cally present in the U.S. for at least one year after being granted asylum; (3) continue to be a refu-
gee within the meaning of INA §101(a)(42); (4) not be firmly resettled in another country; and
(5) be admissible to the U.S. as an immigrant under the Act upon examination for adjustment. The
grounds of inadmissibility, the waivers, and the procedures for a waiver are the same as stated for
refugees, above. See also 8 C.F.R. §§209.2(f), 1209.2(f); AFM at 41.6.
Spouse and Children. If the asylee’s spouse or children are not included in the principal alien’s
asylum application, they can still be accorded derivative asylum status if the family relationship
existed prior to the asylum approval. Memo, Carmichael, Assoc. Comm., Examinations, “Asylum
Procedures and Adjustment of Status,” CO 208-P (May 18, 1984), reprinted in 61 Interpreter Re-
leases 522–28 (June 29, 1984). INS Headquarters has taken the view that this means the family re-
lationship must have been established before the conditional grant of asylum.
a. A spouse or child (under 21) may adjust with the principal asylee. If the parties are divorced
or the principal dies before final adjustment the spouse is ineligible to adjust status through
the principal. Legal Opinion, Virtue, CO 209(b) (July 27, 1989). However, s/he does not lose
her asylum status. In order not to remain in limbo s/he may seek to adjust by filing her own
I-589, have it approved nunc pro tunc to the date her original derivative asylum was granted
(or their I-730 was approved) and then file her own adjustment application. Affirmative Asy-
lum Procedures Manual, Office of International Affairs, Asylum Division, Affirmative Asy-
lum Process at pp. 71-74 (Feb. 2003). If the spouse is from the same country as the principal,
CHAPTER 5 • NONIMMIGRANT VISAS 555
6. Admission and Extension
a. Admitted for length of training program, but in no event longer than 2 years. 8 C.F.R.
§214.2(h)(9)(iii)(C)(1). No extension, change of status or readmission to H or L status granted
after the 2 years unless alien resided and is physically present out of the U.S. for 6 months.
8 C.F.R. §214.2(h)(13)(iv). If training is seasonal, intermittent, or less than 6 months, this rule
does not apply. 8 C.F.R. §214.2(h)(13)(v).
b. The approval of a permanent labor certification or the filing of a preference petition by the
same employer for the same or a different job is grounds to deny extension of training pro-
gram. 8 C.F.R. §214.2(h)(16)(ii).
c. Must file application by employer on I-129. Can have multiple beneficiaries. 8 C.F.R.
7. Special Education Exchange Program—IMMACT90 §223; 55 Fed. Reg. 2606, 2628 (Jan. 26,
1990); 8 C.F.R. §214.2(h)(7)(iv).
a. Extends exchange status to participants in a special education program which provides for
practical training and experience in the education of children with physical, mental or emo-
b. Limited to 18-month stay and limited to 50 visas/status per year.
(1) Processed under H-3 category.
(2) Petition must be filed by facility that has professional, trained staff and a structured pro-
gram for children that provides training and hands-on experience. Must have description
of the training program.
(3) Need evidence that participant is nearing completion of a BA or higher degree or has ex-
tensive prior training or experience.
(4) If in U.S. for 18 months under H/L status may not seek C/S, E/S or readmission under
H/L categories unless s/he has resided and been physically present outside U.S. for im-
mediate prior 6 months. 8 C.F.R. §214.2(h)(13)(iv).
VII. VISAS FOR BUSINESS PERSONNEL (H, L, E, I, O, P, Q, AND R VISAS)
1. Permits employment in U.S.
2. Longer duration than B.
3. Facilitates residency (L, E).
4. Duration of stay—For tax implications, see Chapter 6, Section XIII.H (p.709), infra.
B. H Visas. INA §101(a)(15)(H), 8 U.S.C. §1101(a)(15)(H).
1. Seven Categories of H Visas:
a. H-1B: Specialty occupation.
b. H-1B1: Fast Track H-1Bs
c. H-1C: Professional Nurses Working in Health Professional Shortage Areas (HPSAs).
d. H-2A: Temporary agricultural workers.
e. H-2B: Skilled/unskilled workers provided USCs/LPRs unavailable.
f. H-3: Trainees.
g. H-4: Accompanying family members (spouse/children)
556 KURZBAN’S IMMIGRATION LAW SOURCEBOOK
2. General Criteria
a. USCIS must first approve petition of employer. INA §214(c), 8 U.S.C. §1184(c); 8 C.F.R.
C. H-1B Visas. INA §101(a)(15)(H)(i)(b), 8 U.S.C. §1101(a)(15)(H)(i)(b). Legislative History, H.R.
Rep. No. 851, 91st Cong. 2d Sess., 1970 U.S.C.C.A.N. 2750-55 (1970). See also Immigration Act of
1990, H.R. Conf. Rep. No. 955, 101st Cong. 2d Sess. 125 (1990); Miscellaneous and Technical Immi-
gration and Naturalization Amendments of 1991, PL 102-232 (Dec. 12, 1991); 59 Fed. Reg. 41818-42
(Aug. 15, 1994); Omnibus Appropriations Act (OAA) For Fiscal Year 2005, PL 108-447, 118 Stat.
2809, Division J, Title IV, Subtitle B—H-1B Visa Reform, Section 426, PL 108-447 (Dec. 8, 2004).
1. Criteria—INA §101(a)(15)(H)(i)(b), 8 U.S.C. §1101(a)(15)(H)(i)(b); 8 C.F.R. §214.2(h);
22 C.F.R. §41.53:
a. Person in a specialty occupation, fashion model of distinguished merit and ability, or person
providing service related to Department of Defense (DOD) cooperative research and devel-
opment project or co-production project.
b. Coming temporarily to U.S. Matter of Ord, 18 I&N Dec. 285 (R.C. 1982).
c. Approval of labor certification or the filing of immigrant visa petition does not preclude grant-
ing an H-1B petition or extension. INA §214(h), 8 U.S.C. §1184(h). Alien may legitimately
have “dual intent.” Memo, Gibson, Acting Assoc. Comm., CO 214h-P, 214L-P (Sept. 23,
1985), reprinted in 62 Interpreter Releases 965–67 (Oct. 4, 1985); 8 C.F.R. §214.2(h)(16)(i).
d. Does not require maintenance of a foreign residence. IMMACT90 §205(e); IFM §15.4; FAM
§41.53 N3.1.In light of the elimination of the foreign residence requirement, DOS’s position
is that “the intent of the H-1 applicant in regard to nonimmigrant or immigrant status is totally
irrelevant. Thus, not only shall the consular officers not refuse an H-1 visa on this basis, facts
relating to foreign residence and nonimmigrant intent shall not be considered by the officer
when adjudicating the H-1 visa application.” Cable, DOS, 91-State-171115, ¶6 (May 24,
1991), reprinted in 68 No. 21 Interpreter Releases 681–84 (June 3, 1991).
e. Self-Petitioning/Owner as Petitioner—Although an owner of a petitioning employer may be
barred from obtaining a labor certification, nonprecedent AAO decisions support the right of
a corporation to petition for its owner for an H-1B if the owner is H-1B qualified. Matter of X,
___, SRC 98 101 50785 (AAO Aug. 9, 1999), 21 Immigr. Rep. B2-6 [Following Matter of
Aphrodite Investments, Ltd., a sole owner and sole employee of the petitioning company is
not precluded from receiving an H-1B].
f. Labor Condition Application (LCA) Requirement—INA §212(n)(1), 8 U.S.C. §1182(n)(1).
Applies to all H-1Bs including fashion models, 8 C.F.R. §214.2(h)(1)(ii)(B)(3), and physi-
cians. The petitioner is required to obtain a certification from DOL that it has filed an LCA in
the occupational specialty. 8 C.F.R. §214.2(h)(4)(i)(B)(1). Memo, Weinig, Asst. Comm., Ad-
judications, CO 214h-P (Mar. 5, 1992), reprinted in 69 No. 12 Interpreter Releases 378, 390
(Mar. 30, 1992). There are special attestation requirements for employers who previously
committed willful violations of the law or for employers who are deemed to be H-1B depend-
ent. 20 C.F.R. §§655.736-39. DOD category does not require an LCA. However, LCAs are
required for H-1B, H-1B1, and E-3 employees. H-2Bs required a labor certification.
g. Payment of Fees By Employer.
(1) Fees to the DHS. The employer must pay three sets of fees to the government. First, they
must pay the standard petition fees for the I-129 petition and if the employee is abroad
the additional fees at the consulate. Second, the employer must pay a fee of $1,500 unless
she is an employer with not more than 25 full-time equivalent employees and then she
must only pay one-half the required fee which is now $750. INA §214(c)(9). Third, the
employer is now required to pay to the government a $500 fraud prevention and detec-
tion fee. INA §214(c)(12). All fees are paid to the Department of Homeland Security.
The fraud prevention fee must be paid in a separate check but other fees can be bundled.
The $1,500 fee is paid one time to initially grant the H-1B, to extend the stay of an H-1B
(if not paid at a prior extension) or to change status to an H-1B. A primary or secondary
education institution, an institution of higher education, as defined in section 20 U.S.C.
612 KURZBAN’S IMMIGRATION LAW SOURCEBOOK
8. Family of Es
a. Spouse and children accompanying or following to join principal E. Nationality not impor-
tant. 8 C.F.R. §214.2(e)(4); 22 C.F.R. §§41.51(a)(3) and (b)(3).
b. Employment Authorization Issues.
(1) Spouse of E visa holder who enters U.S. as E spouse can now obtain employment au-
thorization. INA §214(e)(6); Cable, DOS, 02-State-17328 (Jan. 29, 2002), posted on
AILA InfoNet at Doc. No. 02013032. Employment authorization filed on I-765 at the
Service Center with jurisdiction over spouse’s place of residence. However, if request is
filed with concurrent I-129 application then it should be filed at the Vermont Service
Center who may then forward it on to the California Service Center. If Form I-129 is
pending, file with the Service Center that has issued the receipt notice (either Vermont or
California). For employment authorization the spouse must provide: (i) proof of princi-
pal’s current status including the petition approval notice if available; and (ii) I-94s of
principal and spouse to verify marital relationship. Employment will be granted for pe-
riod of admission and/or status not to exceed 2 years. In the event spouse does not re-
ceive a Form-1-765 (proof of employment authorization) within 90 days, s/he can go to
local district office and obtain employment for 240 days. Memo, Yates, Deputy Ex.
Assoc. Comm., Field Operations, HQ 70/6.2.5,6.2.12 (Feb. 22, 2002), posted on AILA
InfoNet at Doc. No 02022832 (Feb. 28, 2002).
(2) Children are still not employment authorized but they can attend school without changing
status. Inspector’s Field Manual §§15.4(e), 15.5(d).
9. Employment discrimination issues—Under traditional “E” treaties relating to friendship, com-
merce and navigation, hiring only foreign nationals for employment may be contrary to Title VII.
Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176 (1982); Weeks v. Samsung Heavy
Industries Co., Inc., 126 F.3d 926 (7th Cir. 1997); Wallace v. SMC Pneumatics Inc., 103 F.3d
1394 (7th Cir. 1997); Papaila v. Uniden America Corp., 51 F.3d 54 (5th Cir. 1995), cert. denied,
116 S.Ct. 187 (1995); Fortino v. Quasar Co., 950 F.2d 389 (7th Cir. 1991); McNamara v. Korean
Air Lines, 863 F.2d 1135 (3d Cir. 1988), cert. denied, 493 U.S. 944 (1989); Spiess v. C. Itoh &
Co., 643 F.2d 353 (5th Cir. 1981), vacated on other grounds, 457 U.S. 1128 (1982); Wickes v.
Olympic Airways, 745 F.2d 363 (6th Cir. 1984).
P. Bilateral Investment Treaties. Traditionally, most E-1/E-2 treaty rights arose out of Treaties of
Friendship, Commerce and Navigation (FCNs) which governed both trade and investment. More re-
cently, the U.S. has signed treaties directed solely to investment called Bilateral Investment Treaties
(BIT) and to Free Trade Agreements (NAFTA/Fast Track) which contain both E-1 and E-2 compo-
nents. BITs allow for E-2 status only; however, they are more expansive than the traditional FCNs be-
cause they apply to foreign nationals who establish, administer or advise an enterprise and not simply
develop or direct it. 66 No. 2 Interpreter Releases 32, 59 (Jan. 9, 1989). See Appendix A, infra, for list.
Q. E-3 Visa. Australian Special Occupation Visa. 101(a)(15)(E)(iii), 8 U.S.C. §1101(a)(15)(E)(iii);
PL 109-13, 119 Stat. 231, Division B, Title V, Sec. 501 (May 11, 2005); 22 C.F.R. §41.51(c); AFM 34.6.
1. Establishes a new category, E-3 which allows persons to enter the U.S. “solely to perform services
in a specialty occupation in the United States if the alien is a national of the Commonwealth of
Australia” and files a labor attestation under INA §212(t). It is limited to 10,500 per fiscal year.
Although the E-3 has characteristics that are the same as H-1Bs or Fast Track H-1B1s, it is a sepa-
rate visa with separate benefits and requirements. For example, E-3 spouses may work and E-3
applicants are not required to pay the special fees required of H-1Bs. Aytes, Acting Assoc. Dir.,
Domestic Operations, USCIS, “Processing Guidelines for E-3 Australian Specialty Occupation
Workers and Employment Authorization for E-3 Dependent Spouses,” published in 83 No. 3 In-
terpreter Releases 121, 123–24, 140-45 (Jan. 17, 2006). However, like H-1Bs and H-1B1s, E-3s
are required to provide an LCA and prevailing wage determination.
2. To qualify for an E-3 visa, the applicant must (22 C.F.R. §41.51(c)(1)/AFM 34.6(a)):
a. Possess the nationality of the designated country. To date, the only country is Australia.
CHAPTER 5 • NONIMMIGRANT VISAS 613
b. Demonstrate that he satisfies the “specialty occupation” requirements under INA §214(i)(1)
and DHS regulations;
(1) Requirements include the submission of a certified copy of any license or permission to
practice if required before practice in the area of employment or evidence that s/he will me
the licensure requirements if it is not required immediately to practice. AFM 34.6(a)(2)
c. Present an LCA in accordance with INA §212(t)(1);
(1) Cannot submit LCA used in conjunction with a previous H-1B application. Until DOL
develops a separate LCA for E-3s, the applicant should use the standard ETA-9035 and
asked that it be annotated as an E-3 LCA.
d. Present to proof of his academic or other credentials demonstrating he qualifies for the posi-
tion under INA §214(i)(1);
e. Present a job offer letter or other documentation from the employer establishing that he will
be engaged in a specialty occupation and that he will be paid the higher of the actual or pre-
vailing wage pursuant to INA §212(t)(1);
f. Have a visa number available under INA §214(g)(11)(B); and
g. Intends to depart the U.S. upon termination of his E-3 status.
3. Application Process—AFM 34.6(b)
a. Apply directly at consulate for E-3 visa or apply for C/S or E/S on an I-129 petition at the
VSC with the information required for eligibility, described in Paragraph 2, supra.
4. Admission and Extension of Stay
a. Admitted initially for period not to exceed the validity of LCA. Extensions of stay may be
granted indefinitely in increments not to exceed the LCA. AFM 34.6(a)(3)
b. CAP of 10,500 Visas. Does not apply to extensions of E-3s provided applicant remains with
the same employer named in the original visa application abroad or in the C/S. Dependents do
not count against the cap. AFM 34.6(a)(3) Note 3.
5. Spouse and Dependent Children—Receive the same E-3 classification. They need not have the
same nationality as the principal and they are not subject to the numerical limitations. 22 C.F.R.
§41.51(c)(2); AFM 34.6(a)(3) Note 1. Spouses are eligible for employment authorization. INA
§214(e)(6). They are processed in a similar manner to applications by E-1/E-2 spouses except that
they must be filed only at the VSC. AFM 34.6(a)(3) Note 2. In addition, spouses battered or sub-
jected to extreme cruelty are eligible for work authorization, INA §106, to be filed with the Ver-
mont Service Center unit that adjudicates VAWA self-petitions, U and T visas.
R. Q Nonimmigrant. INA §101(a)(15)(Q), 8 U.S.C. §1101(a)(15)(Q); 8 C.F.R. §214.2(q); 57 Fed.
Reg. 55056 (Nov. 24, 1992); 22 C.F.R. §41.57.
1. NIV for a participant in an international cultural exchange program designated by the AG for the
purpose of providing practical training, employment and the sharing of the history, culture and
traditions of the country of the person’s nationality. The program applies to an employer who has
employees not simply an agent or office and who provides on a regular, continuous, systematic
basis goods and/or services (including lectures, seminars and other types of cultural programs).
8 C.F.R. §214.2(q)(1).
2. Conditions of Visa:
a. Cannot exceed 15 months.
b. Beneficiary must have foreign residence.
c. Beneficiary must be employed under the same wages and working conditions as U.S. workers.
d. Limitation on admission—If beneficiary has spent 15 months in U.S. under a visa cannot be
readmitted under the same status until physically outside of the U.S. for 1 year. Brief trips to
U.S. under B-1/B-2 do not break the continuity of the one-year foreign residence requirement.
8 C.F.R. §214.2(q)(2)(ii).
CHAPTER 5 • NONIMMIGRANT VISAS 621
a. It is a violation of status for dependents to work without authorization and for principal alien
when s/he works outside scope of his or her official position. 8 C.F.R. §214.2(g)(10).
b. G-1 through G-5 authorized to work pursuant to their status for international organization.
8 C.F.R. §§274a.12(b)(7) and (8), 1274a.12(b)(7) and (8).
c. Adjustment—INA §§245, 247, 8 U.S.C. §§1255, 1257—Same as A visa.
4. Overstays—The provisions of INA §222(g) are not currently applied to A-1, A-2, G-1, G-2, G-3
and G-4 visa holders. Cable No. 225321, Christopher, Sec. of State, State No. 208799/212382
(1996), reprinted in 73 No. 42 Interpreter Releases 1544–46 (Nov. 4, 1996) unless USCIS or IJ
make a determination that a status violation has occurred. Cable, DOS, 98-State-051296 (Mar. 23,
1998), posted on AILA InfoNet at Doc. No. 98032392. It is applied to A-3 visa holders. 9 FAM
5. LPR Status—Children of diplomats born in the U.S. are LPRs. See in this part Section B.6.d
D. NATO. 8 C.F.R. §214.2(s).
1. Special visas for certain employees of NATO; Countries that are parties to NATO listed at 9 FAM
2. 22 C.F.R. §§41.21, 41.25;
3. Exempt from overstay requirements of INA §222(g) unless USCIS or IJ make a status determination.
4. Employment authorization for NATO principal is incident to status. 8 C.F.R. §274a.12(b)(17), (18).
Dependents may also be given employment authorization if there is a written bilateral dependent
employment agreement or a de facto agreement. 8 C.F.R. §214.2(s)(3)-(5). The application for em-
ployment for dependents must be filed at the Nebraska Service Center. 63 Fed. Reg. 50584-85 (Sept.
22, 1998), reprinted in 75 No. 37 Interpreter Releases 1337, 1356 (Sept. 28, 1998).
5. Civilian employees of NATO as well as their spouse and children may obtain special immigrant
status under INA §101(a)(27)(L) in the same manner as G-4 employees.
E. UN Transits—C-2
a. Representative (from non de jure and nonmember country, e.g., Chairman Arafat otherwise
would be G-3), or expert that U.N. needs.
b. Under U.N. “Headquarters Agreement” (61 Stat. 758)—No impediment to travel for repre-
sentatives or those requested by U.N. (e.g., expert on refugee matters).
c. Inadmissible only under INA §§212(a)(3)(A), (3)(B), (3)(C) and (7)(B) if seeking entry pur-
suant to UN Headquarters Agreement. 9 FAM 41.71 N5.1. C-2 can obtain INA §212(d)(3)(A)
waiver for these grounds. Criteria may be less stringent in C-2 “Headquarters” cases. 9 FAM
d. Given 29 days. Extensions difficult. 8 C.F.R. §214.2(c)(3). Must stay within NYC area and
proceed directly to U.N. When leaving U.N. business must leave U.S. 8 C.F.R. §214.2(c)(2).
e. Exempt from overstay requirements of INA §222(g) unless IJ or USCIS make status deter-
F. Foreign Government Transits—C-3. INA §212(d)(8), 8 U.S.C. §1182(d)(8).
a. Accredited official of foreign government.
b. Passing in transit through U.S.
c. U.S. has reciprocal right in foreign country.
d. Must be on official business.
2. Inadmissible only as to INA §212(a)(3)(A) to (3)(C) and (7)(B).
622 KURZBAN’S IMMIGRATION LAW SOURCEBOOK
IX. FAMILY-RELATED VISAS FOR FIANCÉE, SPOUSE, AND CHILDREN OF
USC OR LPR
A. K-1 Visa. INA §101(a)(15)(K)(i), 8 U.S.C. §1101(a)(15)(K)(i); 9 FAM 41.81
a. A fiancée/fiancé of USC.
b. Seeks to enter U.S. solely to conclude a valid marriage with petitioner.
c. Marry within 90 days after entry.
d. Minor children of fiancés can accompany them (K-2).
Requires petition approval by USCIS. INA §214(d), 8 U.S.C. §1184(d).
a. USC must file I-129F petition with USCIS, not at consulate. INA §214(d); 9 FAM 41.81 N.2;
b. Must be filed where petitioner is residing. 8 C.F.R. §214.2(k).
c. Must provide proof that:
(1) There is a bona fide intention to marry within 90 days of fiancé’s entry
(2) No legal impediments to marriage;
(3) Have previously met in person within two years of filing petition. USCIS may waive in
person requirement, where extreme hardship or long established custom. 8 C.F.R.
§214.2(k)(2); Matter of ___ (AAO Feb. 28, 2003) [Not extreme hardship where USC re-
fused to meet personally with fiancé during Afghanistan war because they could have met
in a third country] reported in 80 No. 21 Interpreter Releases 750–51 (May 23, 2003).
(4) Must provide the criminal record, if any, of the petitioner. INA §214(d)(1)
d. Petition valid for 4 months. Can be revalidated for 4-month periods. No extensions of stay.
8 C.F.R. §214.1(c)(3).
e. Petition automatically terminated where petitioner dies or withdraws petition.
f. Approved petition goes to consul. Consul must determine that fiancé would be eligible to re-
ceive immigrant visa before approving K. 22 C.F.R. §41.81(d). However, consular officer
cannot require K-1 applicant as a condition of entry to get all vaccinations under vaccine-
preventable diseases as required by INA §212(a)(1)(A)(ii). Memo, Virtue, Acting Exec.
Assoc., Comm. (Sept. 29, 1997), posted on AILA InfoNet at Doc. No. 97101090.
g. Can obtain K petition approval even if fiancé in deportation proceeding where s/ he has been
granted voluntary departure. Letter, Weinig, Deputy Asst. Comm., Adjudication (Sept. 16,
1988), reprinted in 7 AILA Monthly Mailing 540 (Nov. 1988).
h. Visa not issued:
(1) If marriage would not be legal. Matter of Manjoukis, 13 I&N Dec. 705 (DD 1971) [Four-
teen-year-old women cannot legally marry]; Matter of Souza, 14 I&N Dec. 1 (R.C. 1972)
[Existing prior marriage. Where divorce filed although likely to be finalized within
90 days, was not yet finalized].
(2) Where beneficiary is inadmissible under INA §212(a). Can get INA §212(d)(3)(A)
waiver. But only granted where, if married, the exclusion ground is waivable under INA
§212(g), (h), (i), or where I-212 would be approved for waiver of INA §212(a)(9)(A)(i)
[Prior removal for inadmissibility] and INA §212(a)(9)(A)(ii) [Prior deportation].
(3) Where petitioner previously filed petitions for two or more fiancées if the previously ap-
proved petition was filed within 2 years. DHS may waive this bar in its discretion but a
waiver shall not be granted if the petitioner has a record of violent criminal offenses against
a person unless s/he can establish s/he has been battered or subjected to extreme cruelty and
was not the primary perpetrator of the violence. INA §214(d)(2). In addition, once a peti-
CHAPTER 5 • NONIMMIGRANT VISAS 623
tioner has had two fiancée or spousal petitions approved, if a subsequent petition is filed in
less than 10 years after the date the first petition was filed DHS shall notify both the peti-
tioner and the beneficiary of any subsequent petition about the number of previously ap-
proved fiancée or spousal petitions. INA §214(r)((4)(B)(i). Consul is required to disclose
the criminal record of the petitioner to the applicant. 8 U.S.C. §1375a(b)(1)(A).
i. Work Authorization—K-1 and K-2 are authorized. 8 C.F.R. §§274a.12(a)(6), 1274a.12(a)(6).
3. Procedure for adjustment of status/residency:
a. Adjustment procedure under INA §214(d) eliminated under Immigration Marriage Fraud
b. Now must obtain conditional resident status for two years and obtain LPR status through lift-
c. With K-1 visa cannot change status, INA §248, 8 U.S.C. §1158, or adjust status based on
grounds other than marriage to person who filed K-1 petition. INA §245(d), 8 U.S.C. §1255(d).
And under K-1 provision, if the marriage to the K-1 petitioner does not occur “within three
months after the admission....[the K-1 and minor children]..shall be required to depart from the
United States and upon failure to do so shall be removed in accordance with section 1229a and
1231...” 8 U.S.C. §1184(d); Kalal v. Gonzales, 402 F.3d 948, 950–51 (9th Cir. 2005) [Upheld
rescission of CR status to person who did not marry K-1 petitioner within 90 days and instead
married a different USC]. However, 8 U.S.C. §1255(d) may be read to permit adjustment even
if the marriage does not take place within 90 days if it is to the “citizen who filed the petition to
accord” the K-1 status. See also Matter of Zampetis, 14 I&N Dec. 125 (BIA 1972)
B. K-3 Visa (Spouse of USC). INA §101(a)(15)(K)(ii), 8 U.S.C. §1101(a)(15)(K)(ii); 22 C.F.R.
§41.81; 9 FAM 41.81; 8 C.F.R. §214.2(k); 66 Fed. Reg. 42587-95 (Aug. 14, 2001).
1. Established a K-3 visa for a person who has a valid marriage to a USC, the USC has filed an I-130
petition on his or her behalf, and s/he seeks to enter the U.S. to await the approval. Includes minor
children of beneficiary. If the I-130, IV or A/S is denied, the authorized admission under the K-3
terminates 30 days after the denial
2. Children of K-3—An unmarried child of a K-3 applicant need only establish that s/he is the child
of a K-3. S/he does not need a separate petition by USC. Will be designated as a K-4. Cable, DOS
00-State-242292 at ¶11 (Jan. 30, 2001), reprinted in 78 No. 6 Interpreter Releases 339–42 (Feb.
5, 2001). Even if K-4 child is inadvertently left off the I-129F form, the consular officer should
process his or her visa. Cable, DOS, 01-State-167548, supra at ¶34. Note that a child of the USC
petitioner, if s/he is also not the child of the K-3, may not receive a K-4. Most K-4s are likely to
be the step-children of the USC petitioner. Id at ¶33. K-4 children are not given the benefit of the
Child Status Protection Act if they “age-out.”
3. Inadmissibility Waived—The applicant is exempt from INA §§212(a)(1) [vaccination require-
ments] and (a)(5) [Labor Certification].
4. Effective date—The K-3 status became effective Dec. 21, 2000 and applies to all petitions filed
before, on, or after that date.
a. Issuing Post—If the potential K-3 applicant was married abroad, s/he must apply for the visa
in the country in which the marriage took place or if there is no consular post in that country
at a post designated by the Deputy Asst. Sec. of State for Visa Services. 22 C.F.R.
§41.81(b)(2); Section 1103(b)(2) of the LIFE Act.
b. File I-129F—The USC petitioner files an I-129F petition with USCIS through the Missouri
Service Center (MSC). The petition should include proof that an I-130 petition has been filed.
In addition, must include the criminal record, if any, of the petitioner. INA §214(r)(1). Once
approved, the MSC forwards the file to the NVC where an NCIC check will be performed. If
the person clears the NCIC check the I-129F is electronically forwarded to the post. Once the
consular post receives the I-129F they send the beneficiary a letter/Packet 3 outlining the
documentary requirements necessary for the issuance of the visa including the location for the
medical exam. Documentary requirements are similar to the K-1 and require completing a
CHAPTER 6 • PERMANENT RESIDENT STATUS 637
II. IMMEDIATE RELATIVES
A. Part of Overall Cap. Under the Immigration Act of 1990, immediate relatives (IRs) are now part of
the overall cap on immigration.
1. IRs, however, are not subject to a numerical limit. They are deducted from the overall cap of
2. IRs not exempt from grounds of inadmissibility where applicable under INA §212(a). However,
waivers may be available based upon family relationships. See Index, waivers.
B. Restricted to: [INA §201(b)(2)(A)(i), 8 U.S.C. §1151(b)(2)(A)(i)]
1. “Children, spouses and parents” of a USC.
2. If applying for a parent, the USC must be a son or daughter (i.e., at least 21).
3. If applying for a child, the child must be under 21 and unmarried at time of filing petition. INA
§201(f), 8 U.S.C. §1151(f).
4. Widow(er) of a USC if married for at least 2 years, petitions within two years of spouse’s death,
not remarried, and was not legally separated from spouse at time of his or her death. 8 C.F.R.
§204.2(b)(1). Includes as IRs children of the widow(er). INA §§201(b)(2)(A)(i), 204(a)(1)(A)(ii),
8 U.S.C. §§1151(b)(2)(A)(i), 1154(a)(1)(A)(ii). The children are derivative beneficiaries and need
not (and cannot) file a separate petition. Matter of Minkova, 22 I&N Dec. 1161 (BIA 1999). It
does not extend to the unmarried or married sons or daughters of widow(er)s. See Id.; 8 C.F.R.
§204.2(b)(4). 60 Fed. Reg. 38947-48 (July 31, 1995), reprinted in 72 No. 30 Interpreter Releases
1052, 1066–67 (Aug. 7, 1995). DOS has also decided that the deceased need not have been a USC
for 2 years as long as he was a USC at time of death. Cable, DOS, 92-State-052354 (Feb. 20,
1992), reprinted in 69 No. 9 Interpreter Releases 301 (Mar. 9, 1992). The Service agrees. 8 C.F.R.
§204.2(b)(1)(i). Application submitted on I-360 form.
5. Battered Spouse, Child or Parent—Violence Against Women Act of 1994, PL 103-322, 108 Stat.
1902-55, 8 U.S.C. §§1151, 1154, 1186a, 1186a note, 1254, 2245 (1994); Victims of Trafficking
and Violence Protection Act (VTVPA), Title V (Battered Immigrant Women Protection Act) PL
106-386, 114 Stat. 1464 (Oct. 28, 2000); 2000 H.R. 3244; Violence Against Women and Depart-
ment of Justice Reauthorization Act of 2005, PL 109-162, 119 Stat. 2960 (Jan. 5, 2006), Cong.
Rec. S13753 et seq. (Dec. 16, 2005) (Summary).
a. Eligibility—The spouse, child or parent who is subject to extreme cruelty or battered may file
a self-petition independently of the abusive USC/LPR spouse or parent. INA
§§204(a)(1)(A)(iii)–(vii) (a)(1)(B)(ii)–(iii); 8 U.S.C. §§1154(a)(1)(A)(iii)–(vii), (a)(1)(B)(ii)–
(iii); 8 C.F.R. §204.2(c), (e). In battered spouse or child cases the spouse or child must dem-
onstrate that s/he resided with USC/LPR spouse/parent; was battered or subject to extreme
cruelty (or, in the case of a spouse self-petitioner, the child was battered or subjected to ex-
treme cruelty) during the marriage with USC/LPR, the marriage was entered into in good
faith, s/he is otherwise eligible for IR or preference status, and has good moral character. Any
credible evidence of battery or extreme cruelty may be considered. 8 C.F.R. §204.2(c)(2),
(e)(2). The spouse no longer must be married to the LPR or USC abuser at the time the peti-
tion is properly filed with USCIS because a battered spouse now includes: (1) someone who
in good faith believed they were married but was subject to bigamy, (2) someone who was
married but the abusing spouse who was a USC died within the 2 years immediately preced-
ing the filing of the self-petition; (3) the abusing spouse renounced his U.S. citizenship/LPR
status or lost his status within the 2 years immediately preceding the filing of the self-petition,
and the loss was related to or due to an incident of domestic violence; or (3) the abused
spouse can demonstrate a connection between the legal termination of the marriage within the
past 2 years and the battering/extreme cruelty by the USC/LPR spouse. AFM at 21.14(q). A
self-petitioner who had a bigamous marriage needs to demonstrate that: (1) she married a
USC/LPR whom s/he believed was free to enter into the marriage; (2) the marriage ceremony
was actually performed; and (3) the requirements for the establishment of a bona fide mar-
riage were otherwise met. Memo, Williams, Ex. Assoc. Comm., Field Operations
HQADN/70/8 (Aug. 21, 2002), posted on AILA InfoNet at Doc. No. 02091042. In demon-
strating the connection between the legal termination of the marriage and the batter-
638 KURZBAN’S IMMIGRATION LAW SOURCEBOOK
ing/extreme cruelty “the evidence submitted to meet the core eligibility requirements may be
sufficient to demonstrate a connection...” Memo, Pearson, Ex. Assoc. Comm. Field Opera-
tions, HQADN/70/8 (Jan. 2, 2002), posted on AILA InfoNet at Doc. No. 03101649. These
provisions also cover abused spouses and children living abroad if their abusers are USC/LPR
members of the U.S. military or are U.S. government employees or if some of the abuse per-
petrated by the USC/LPR spouse/parent took place in the U.S. They also permit persons to be
divorced after the petition is filed without the need to demonstrate a connection between bat-
tering/extreme cruelty and the divorce. INA §204(a)(1)(B)(v)(I). A battered spouse may even
remarry after the self-petition is approved without the self-petition being invalidated. INA
§204(h). If the self-petitioner is a stepchild, the parent-child relationship must exist for the
child to self-petition and the step-child can file even if the abusing parent is no longer a
USC/LPR where the abusing spouse renounced his U.S. citizenship/LPR status or lost his
status within the 2 years immediately preceding the filing of the self-petition, and the loss was
related to or due to an incident of domestic violence. A self-petitioning child/parent may ad-
just even if the abusing parent/spouse loses his or her LPR status after the filing of the peti-
tion. INA §204(a)(1)(B)(v)(I). All I-360 petitions for self-petitioning battered spouses and
children are filed with the Vermont Service Center. Memo, Virtue, Acting Exec. Assoc.
Comm., INS (May 6, 1997), reprinted in 74 No. 23 Interpreter Releases 962, 971–77 (June
16, 1997). USCIS will also send notices that the petitioner has established a prima facie case
so that s/he may qualify for means-tested benefits. 8 C.F.R. §204.2(c)(6).
b. Aged-Out Children—An abused child of a U.S. citizen may even initially petition until the age
of 25 if he can demonstrate that the “abuse was at least one central reason for the filing delay.”
INA §204(a)(1)(D)(v). Otherwise, a self-petitioning child must be unmarried and under 21 years
old when the I-360 is filed but will not “age-out” even if the petition is not approved until after
21 years of age. Nor do derivative children age-out. Instead they automatically are transferred to
the relevant preference category as approved self-petitioners. INA §204(a)(1)(D)(i)(III). They
maintain their original priority date and receive the protection of the Child Status Protection Act
even if they lost their status due to the death of, or termination of parental relationship by, the
abusive parent. INA §§201(f)(4), 203(h)(4), 204(a)(1)(D).
c. Self Petitioning for Abused Parent—A parent may self-petition under VAWA if s/he is the
parent of a current U.S.C (who subjected them to battery or extreme cruelty) or the parent of
an abusive U.S.C. who, within the past two years, lost or renounced U.S. citizenship related to
an incident of domestic violence, or died. The parent can apply if the parent is a person of
good moral character, is eligible to be classified as an IR, resides or has resided with the USC
daughter or son, and demonstrates that she has been battered or subject to extreme cruelty by
the USC daughter or son. INA §204(a)(1)(A)(vii).
d. Good Moral Character—If the person lacks good moral character, the petition will be denied.
Matter of ______, A76 093 795 EAC 99 034 52692 (AAO Aug. 11, 1999), reported in 77 No.
5 Interpreter Releases 155, 168 (Feb. 1, 2000) [Petitioner’s convictions barred a finding of
good moral character]. However, an act or conviction that otherwise would statutorily bar
good moral character under INA §101(f) may be excused if it is “waivable” and if the act or
conviction was connected to the spouse/child having been battered or subject to extreme cru-
elty. 8 U.S.C. §1154(a)(1)(C). The adjudicator does not have to find that the waiver would be
granted “only that one would be available for filing at the time of adjustment of status.” To
establish that the conviction was connected to the battering or extreme cruelty the evidence
must establish that the battering or extreme cruelty “compelled or coerced” the applicant to
commit the crime or act so that “the self-petitioner would not have committed the act or crime
in the absence of the battering or extreme cruelty.” The evidence submitted must demonstrate:
(1) the circumstances surrounding the act or conviction and the abuser’s role in it; (2) the req-
uisite causal relationship between the crime or act and the battering or extreme cruelty; and
(3) that the battering or extreme cruelty must have been perpetrated by the self-petitioner’s
qualifying relative but the crime or act need not have occurred during the marriage. Memo,
Yates, Assoc. Dir. Operations, USCIS, HQOPRD 70/8.1/8.2 (Jan. 19, 2005), posted on AILA
InfoNet at Doc. No. 05012561.
e. Employment Authorization/Deferred Action—Upon approval of the I-360, a VAWA self-
petitioner is eligible for employment authorization, INA §204(a)(1)(K). Memo, Cronin, Act-
CHAPTER 7 • EMPLOYMENT BASED IMMIGRATION AND LABOR CERTIFICATION 747
C. Work Authorization—Labor certification does not confer employment authorization, Matter of
Raol, 16 I&N Dec. 466 (BIA 1978). Alien may not apply for authorization solely because an I-140 is
approved unless an application for adjustment of status has been filed. 8 C.F.R. §§274a.12(c)(9),
1274a.12(c)(9). Beneficiary may work if s/he has unexpired H, L, E or other employment authorization
consistent with 8 C.F.R. §§274a.12-14, 1274a.12-14.
VIII. LABOR CERTIFICATION
1. Originates in prior INA §212(a)(14), 8 U.S.C. §1182(a)(14). Now set forth in INA §§212(a)(5)(A)
& (p), 8 U.S.C. §§1182(a)(5)(A) & (p); 20 C.F.R. pt. 656. H.R. Rep No. 1365, 82nd Cong. 2d
Sess. (1952); 1952 U.S.C.C.A.N. 1653, 1705; S. Rep. No. 748, 89th Cong. 1st Sess. (1965), re-
printed in 1965 U.S.C.C.A.N. 3328, as amended by H. Rep. No. 1553, 94th Cong. 2d Sess. 11
(Sept. 15, 1976); 122 Cong. Rec. Part 128 p33633 (Sept. 29, 1976); as further amended by
IMMACT90 §§162 & 601 and MTINA §302(e)(6); as further amended by ACWIA, PL 105-277,
112 Stat. 2681; as further amended by §423 of the Consolidated Appropriations Act of 2005, PL
108-447, 118 Stat. 2809 (Dec. 8, 2004); The PERM regulations are found at 69 Fed. Reg. 77325-
421 (Dec. 27, 2004), posted on AILA InfoNet at Doc. No. 04122312. For earlier history see also
Pesikoff v. Sec. of Labor, 501 F.2d 757 (D.C. Cir.), cert. denied 419 U.S. 1038 (1974); Mastroy-
anis v. DOL, Case No. A88-089 Civ (D. Alaska May 5, 1989). Inadmissible if seeking entry to
perform skilled/ unskilled labor unless Sec. of Labor has certified to Sec. of State and AG that:
a. Not sufficient workers able, willing and qualified at the time and place of alien entry. Perma-
nent U.S. workers include USCs and LPRs.
b. Employment—Not adversely affect wages and working conditions of U.S. workers.
2. Only applicable to second/third employment based categories and H-2 applicants. The labor certi-
fication for H-2s, however, is not binding on USCIS as are the other certifications. If DOL denies
LC in the H-2 context, the employer may still seek approval of the I-129 through USCIS.
3. Regulations at 20 C.F.R. §656 at 69 Fed. Reg. 77325-421 (Dec. 27, 2004), posted on AILA In-
foNet at Doc. No. 04122312. The Certifying Officer (CO) determines whether a labor certification
should be issued or revoked. The CO is required to interpret the law based on the regulations, the
General Administration Letters (GAL), now called Training and Employment Guidance Letters
(TEGLs), the DOL Technical Assistance Guide, No. 656 (TAG) and the decisions of the Board of
Alien Labor Certification Appeals (BALCA), all of which are considered precedents. The TAG,
however, “is only a manual” and not binding on BALCA. Matter of Solectron Corp., 03-INA-143
(BALCA Aug. 12, 2004) and GALs “have been eliminated as an advisory series” although active
GALs remain in the system. Memo, Flynn, Administrator, Office of Policy Development and Re-
search, “General Administration Letter (GAL) Checklist” (Nov. 5, 2004), posted on AILA In-
foNet at Doc. No. 04113062. DOL now uses TEGLs instead.
4. Special Problems Related to Hurricane Katrina—The DOL has published guidance to the National
Processing Centers and the Backlog Elimination Centers on what accommodations should be
made to persons and businesses impacted by hurricanes Katrina, Rita, and/or Wilma. DeRocco,
Assist. Sec., ETA, TEGL 8-05 (Nov. 16, 2005), 70 Fed. Reg. 70035 (Nov. 21, 2005), reproduced
in 82 No. 47 Interpreter Releases 1953, 1974, 1993–96 (Dec. 12, 2005). The TEGL provides em-
ployers with e-mail addresses to contact DOL regarding the employer’s location and status. It also
provides limited relief in the form of extending filing deadlines and responses.
B. Method of certification
1. PERM, Reduction in Recruitment (RIR) and Traditional Recruitment (TR)—On Mar. 28, 2005 the
Department of Labor initiated the Program Electronic Review Management System (PERM),
69 Fed. Reg. 77325-421 (Dec. 27, 2004), posted on AILA InfoNet at Doc. No. 04122312 prior
proposed regulations at 67 Fed. Reg. 30465 (May 6, 2002), posted on AILA InfoNet at Doc. No.
02050740 (May 7, 2002). PERM created a new system for processing labor certification applica-
tions. Although the process and some criteria for determining labor certifications have changed,
the basic criteria—whether the employer has met the procedural requirements of the regulations,
whether there are insufficient U.S. workers who are able, willing, qualified, and available, and
748 KURZBAN’S IMMIGRATION LAW SOURCEBOOK
whether the employment of the alien will have an adverse effect on the wages and working condi-
tions of U.S. workers similarly employed—remain the same. 69 Fed. Reg. 77325, 77327. Prior to
PERM, the DOL utilized two different methods of recruitment to test the labor market for the
availability of U.S. workers. The initial labor certification process, commonly called traditional
recruitment (TR), had been in existence for approximately 25 years. It required the filing of an ap-
plication (ETA 750 A & B) with the state employment agency which would then direct the re-
cruitment process and forward all documentation to a regional Certifying Officer (CO) employed
by the DOL who would make a final determination as to the validity of the labor certification
(LC). In 1996 the DOL began a process called Reduction in Recruitment as an alternative method
for expediting cases. Generally, this process called for recruitment prior to filing the traditional ap-
plication for alien labor certification (ETA-750A&B). Both of these processes are still in effect for
applications filed prior to Mar. 28, 2005 where the employer has not chosen to refile under PERM.
For greater details regarding TR and RIR, see in this chapter Section VIII.C.10 (p.782), infra.
2. Individual job offer—20 C.F.R. §656.17
Test labor market through the PERM process or through the traditional LC process or RIR for
cases pending before Mar. 28, 2005.
3. Precertification (Schedule A)—20 C.F.R. §§656.5 & 656.15
a. DOL designated job classifications that will not adversely affect U.S. workers. Schedule A
includes nurses and physical therapists (Group I) and persons of exceptional ability in the sci-
ences and arts and now in the performing arts (Group II).
b. Under Schedule A an application (ETA Form 9089) is filed with supporting documentation
directly with DHS when the I-140 application is filed. There is no recruitment process that in-
volves a test of the labor market.
4. Schedule B Occupation—Prior to PERM, the DOL determined that there were enough U.S. work-
ers in certain unskilled occupations to fill the demand and that employment of foreign workers in
these categories would adversely affect U.S. workers. Schedule B, however, has now been elimi-
nated and an unskilled position may be certified under PERM. 69 Fed. Reg. 77325, 77336 (Dec.
5. Optional Special Recruitment for College and University Teachers—20 C.F.R. §656.18. The for-
mer special handling provisions have been eliminated and they have been replaced by an optional
process of recruitment. Under these provisions an employer may opt to use the basic labor certifi-
cation process under §656.17 as an alternative. §656.18(d).
6. Professional Athletes—The processing of athletes to be employed in professional team sports are
not affected by PERM. The existing special procedures and the use of ETA 750 forms are re-
tained. 69 Fed. Reg. 77325, 77328 (Dec. 27, 2004).
7. PERM (Program Electronic Review Management)—Proposed regulations 67 Fed. Reg. 30465
(May 6, 2002), posted on AILA InfoNet at Doc. No. 02050740 (May 7, 2002) and final regula-
tions Fed. Reg. 77325-421 (Dec. 27, 2004), posted on AILA InfoNet at Doc. No. 04122312.
The PERM process represents a departure from the system utilized for 25 years to recruit U.S.
workers. Under PERM, Schedule B and special handling procedures are eliminated, although
there are special procedures for college and university teachers [20 C.F.R. §656.18] and for pro-
fessional athletes. Schedule A is retained for nurses, physical therapists, persons of exceptional
ability in the sciences and arts and persons of exceptional ability in the performing arts. 20 C.F.R.
§§656.5 & 15. A worker who was subject to layoff within the past 6 months of filing the LC must
be notified and considered first for the position if it is the same occupation or a related occupation
to the one where the LC is being sought, and in the same geographical area. §656.17(k), 69 Fed.
Reg. 77325, 77354–56 (Dec. 27, 2004). Also, U.S. workers may not be rejected even if they do
not meet all job requirements, if within a reasonable period of time they can receive job training
for those skills, or if they are able to perform the job duties in a normally acceptable manner given
their backgrounds. §656.17(g)(2). The role of the local job service (SWA) is eliminated except to
provide the prevailing wage. The employer would have to pay the prevailing wage, and the former
5% differential is eliminated. The Davis-Bacon Act and the McNamara-O’Hara Act (Service Con-
tract Act or SCA) are no longer mandatory but could be asserted by the employer. §656.40(b)(4),
CHAPTER 10 • FEDERAL JUDICIAL REVIEW 901
that context that its protections have been strongest.” INS v. St. Cyr, 121 S.Ct. 2271, 2280 (2001);
See also Reno v. Flores, 507 U.S. 292 (1993). It “has been recognized by countless generations as
one of the bulwarks of liberty under the Anglo-American system of government.” Hermanowski v.
Farquharson, 39 F.Supp.2d 148, 153 (D.R.I. 1999). The Federalists encouraged the passage of the
Writ arguing that it should be “provided for, in the most ample manner.” The Federalist, No. 83 at
499 (Alexander Hamilton) (Clinton Rossiter ed., 1961). The power of the court to inquire in ha-
beas “is plenary.” Townsend, 372 U.S. at 312 (1963). The writ is codified at 28 U.S.C. §2241.
2. Habeas Review After AEDPA, IIRIRA and the REAL ID Act of 2005—Federal courts formerly
had jurisdiction to review deportation matters in habeas corpus under INA §106(a)(10), 8 U.S.C.
§1105a(a)(10), H.R. Rep. No. 1086, 87th Cong., 1st Sess. (1961), reprinted in 1961 U.S.C.C.A.N.
2950, 2973. The immigration habeas provision of INA §106(a)(10) was repealed in AEDPA
§401(e). In light of this change and the changes as a result of AEDPA §440(a) and IIRIRA §306
(amending INA §242 and adding §242(g)) withdrawing judicial review from virtually all immi-
gration decisions and §242(b)(9) consolidating all claims in a petition for review), a question re-
mained as to whether 28 U.S.C. §2241 habeas remained to review immigration matters. The
Supreme Court in Felker v. Turpin, 518 U.S. 651, 116 S.Ct. 2333, 2338 (1996), relying on Ex
Parte Yerger, 75 U.S. (8 Wall.) 85, 105 (1868), interpreted another court stripping provision of
AEDPA and found that where Congress had not explicitly repealed habeas corpus jurisdiction that
such jurisdiction could not be repealed “by implication.” Following Felker and general provisions
regarding the presumption of judicial review for constitutional issues and for other matters absent
clear congressional intent to the contrary, the Supreme Court determined that habeas corpus had
not been abolished under AEDPA or IIRIRA to review constitutional and statutory immigration
claims and that habeas applies to review the “legal validity” of a final order of removal even in the
face of preclusion statutes. INS v. St. Cyr, 121 S.Ct. 2271, 2278–88 (2001) [Habeas review and ju-
dicial review are separate and Congress did not preclude habeas review of pure questions of law
that arise during the removal proceeding]. The Supreme Court also reaffirmed the supremacy of
habeas corpus in the review of Executive detention in Demore v. Kim, 123 S.Ct. 1708, 1714
(2003) [“Section 1226(e) contains no explicit provision barring habeas review and we think that
its clear text does not bar respondent’s constitutional challenge to the legislation authorizing his
detention without bail] and in Zadvydas v. Davis, 533 U.S. 678, 687–88, 121 S.Ct. 2491, 2497–98
(2001) [“We conclude that §2241 habeas corpus proceedings remain available as a forum for
statutory and constitutional challenges to post–removal-period detention”]. In St. Cyr, 533 U.S. at
311 and reinforced in Demore, 123 S.Ct. 1708, 1723–24 (O’Connor, J. concurring in part), the
Supreme Court held that “judicial review” under INA §242 and habeas corpus under §2241 are
distinct processes. Accord Saint Fort v. Ashcroft, 329 F.3d 191, 197–201 (1st Cir. 2003) [Reject-
ing the government’s preclusion of review argument and holding that habeas and judicial review
are distinct processes]; Kuhali v. Reno, 266 F.3d 93, 99–101 (2d Cir. 2001) [Post–St. Cyr rejection
of INS argument that habeas precluded until a determination is made under INA §242(a)(2)(C)
that no direct review is possible for a person with a conviction; court raises but does not address
procedural default rule]; Jeanty v. Bulger, 204 F.Supp.2d 1366, 1373–75 (S.D. Fla. 2002) aff’d
sub nom. Moise v. Bulger, 321 F.3d 1336 (11th Cir.), cert. denied, 540 U.S. 1016 (2003) [Preclu-
sion statute barring review of discretionary decisions under INA §242(a)(2)(B)(ii) did not bar ha-
beas jurisdiction to review parole decisions].
REAL ID Act of 2005. With the passage of the REAL ID Act of 2005, PL 109-13, 119 Stat. 231,
Division B §106 (May 11, 2005), Congress unequivocally sought to eliminate habeas, mandamus
and All Writs jurisdiction in the district courts in regard to “judicial review of an order of removal
entered or issued under any provision of this Act.” INA §242(a)(5), 8 U.S.C. §1252(a)(5) [“Not-
withstanding any other provision of law (statutory or nonstatutory), including [habeas, mandamus,
and All Writs Act]...a petition for review filed with an appropriate court of appeals...shall be the
sole and exclusive means for juridical review of an order of removal entered or issued under any
provision of this Act...]. Habeas, mandamus and All Writs Act jurisdiction was also eliminated as
a source of jurisdiction to review Convention Against Torture claims and the courts of appeals
“shall be the sole and exclusive means for judicial review of any cause or claim under” CAT. INA
§242(a)(4), 8 U.S.C. §1252(a)(4). Dorisme v. Gonzales, 410 F.Supp.2d 79 (D. Conn. 2006) [In-
cludes transfers of CAT claims]. The Congress also reemphasized the elimination of habeas, man-
damus and All Writs Act review even if the statute otherwise precluded review. See e.g. INA
§§242(a)(2)(B),(C) & (g), 8 U.S.C. §1252(a)(2)(B),(C) & (g). The REAL ID Act, however, no
902 KURZBAN’S IMMIGRATION LAW SOURCEBOOK
longer bars the court of appeals from considering constitutional claims or questions of law in a pe-
tition for review even where other sections (e.g. criminal aliens, discretionary decision, 242(g))
would bar or limit review. Tostado v. Carlson, 437 F.3d 706, 708 (8th Cir. 2006) [Circuit court
review to determine whether conviction for drug possession is an aggravated felony]; Ramirez-
Molina v. Ziglar, 436 F.3d 508, 513–14 (5th Cir. 2006) [Jurisdiction under INA §242(a)(2)(D) to
review legal challenge to reinstated removal order notwithstanding preclusion provision of INA
§241(a)(5)]; Kamara v. Attorney General of the United States, 420 F.3d 202, 210–11 (3d Cir.
2005) [The court reviews pure questions of law and issues regarding the application of law to fact,
and found that the BIA applied the wrong quantum of proof required for a CAT claim]; Ramos v.
Gonzales, 414 F.3d 800, 802–04 (7th Cir. 2005) [Congress added §242(a)(2)(D) to consider all
constitutional and statutory claims in review of a final order]; Papageorgiou v. Gonzales, 413 F.3d
356, 357–58 (3d Cir. 2005) [Section 242(a)(2)(D) restores jurisdiction to the circuit court for per-
sons who previously were barred from such review under 242(a)(2)(C) because of criminal con-
victions and makes the restoration retroactive by applying it to any order issued before, on or after
May 11, 2005]; Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 586–87 (9th Cir. 2005) [Same]. The
legislative history of the REAL ID Act also provides that it “will not preclude habeas review over
challenges to detention that are independent of challenges to removal orders. Instead, the bill
would eliminate habeas review only over challenges to removal orders.” Joint Explanatory State-
ment of the Committee of Conference, H.R. Cong. Rep. No 109-72 at 175, 151 Cong. Rec.
H2836, 2873 (May 3, 2005). And the transfer provision and elimination of habeas does not apply
to review of or challenges to matters that are not part of removal orders. Hernandez v. Gonzales,
424 F.3d 42 (1st Cir. 2005) [Remanding habeas detention challenge by Mariel Cuban back to dis-
trict court because habeas may be brought post–REAL ID Act when it is a challenge to detention];
Ali v. Gonzales, 421 F.3d 795, 797 n. 1 (9th Cir. 2005) [Declined to transfer case to circuit court
where petitioners challenge their physical removal]. Finally, the REAL ID Act §106(c) orders the
transfer of all habeas cases pending in the district courts to the circuit courts and shall treat the
cases as if they had been filed pursuant to a petition for review, except that the 30-day time limita-
tion for filing a petition for review shall not apply. Medellin-Reyes v. Gonzales, 435 F.3d 721,
723–24 (7th Cir. 2006) [Habeas petition filed outside of 30-day period for review of underlying
removal order does not bar review in circuit court after case is transferred pursuant to REAL ID
Act]; Ishak v. Gonzales, 422 F.3d 22, 29 (1st Cir. 2005) [same]; Dorisme v. Gonzales,
410 F.Supp.2d 79 (D. Conn. 2006) [Includes transfers of CAT claims]. A transfer of the case may
not be made if the case was filed on or after May 11, 2005. Chen v. Gonzales, 435 F.3d 788, 790
(7th Cir. 2006) [No jurisdiction in the circuit court to review transferred habeas filed after May 11,
2005]; but see Wahab v. U.S. Attorney General, 373 F.Supp.2d 524 (E.D. Pa. 2005) [Habeas case
filed post–May 11, 2005 transferred to circuit court]. The transfer of the case raises the question
whether the circuit court can ignore the district court’s decision and render a new decision without
reviewing the lower court order. See e.g. Hernandez v. Gonzales, 437 F.3d 341, 344–45 (3d Cir.
2006) [Vacating the district court opinion and addressing the claims as if they were presented on
appeal for the first time]; Ramirez-Molina v. Ziglar, 436 F.3d 508, 512–13 (5th Cir. 2006) [Re-
versed district court’s findings in habeas and treated habeas appeal as a petition for review]; Bon-
hometre v. Gonzales, 414 F.3d 442, 446 (3d Cir. 2005) [Treating the habeas court’s decision as
“nonexistent” and dismissing the petition for review for failure to exhaust administrative remedies
regarding petitioner’s procedural due process claim]. Similarly, the circuit court must decide
whether to accept a petition for review when the habeas petition was filed within its jurisdiction
but the removal hearing was not, thereby establishing the venue in another circuit. Compare Amu-
nikoro v. Sec. of DHS, 432 F.3d 383 (2d Cir. 2005) [Where respondent agreed that venue was
properly in the Third Circuit because the removal hearing arose there, the appeal of the habeas pe-
titioner, filed in the Second Circuit, was converted to a petition for review and transferred to the
Third Circuit. The Second Circuit declined to decide whether it was compelled jurisdictionally to
transfer the case to the Third Circuit] with Jama v. Gonzales, 431 F.3d 230, 233 (5th Cir. 2005)
[Maintaining the case in the Fifth Circuit despite improper venue because of the unfairness in re-
litigating the case anew in another forum]; Bonhometre v. Gonzales, 414 F.3d 442, 446 n.5
(3d Cir. 2005) [Although the case was not properly before the court as a converted petition for re-
view because the removal hearing arose in the First Circuit, it would be manifest injustice not to
decide the case as it was thoroughly briefed and argued and petitioner had waited a long time for
its resolution]. The circuit courts must also decide how they will treat an appeal of a habeas peti-