1 / 55

Ethical Dilemmas in Business Immigration

Ethical Dilemmas in Business Immigration. Moderator: Leslie Ditrani Panelists: Cyrus D. Mehta, New York, NY Stephen Yale- Loehr , Ithaca, NY. ABA Model Ethical Rules.

issac
Télécharger la présentation

Ethical Dilemmas in Business Immigration

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. Ethical Dilemmas in Business Immigration Moderator: Leslie Ditrani Panelists: Cyrus D. Mehta, New York, NY Stephen Yale-Loehr, Ithaca, NY

  2. ABA Model Ethical Rules Rule 1.1 – A lawyer shall provide competent representation to the client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Rule 1.4 – Duty to disclose errors to current and former clients. ABA Formal Op. 481 – affirms lawyer’s obligation to inform current client of lawyer’s material error. No similar duty to former client if material error is discovered after representation terminated.

  3. Legal Malpractice Liability – Establishing Negligence Prove that attorney-client relationship existed. Establish standard of care in community, through expert witnesses. Client would have succeeded “but for” attorney’s negligence.

  4. Matter of Lozada in Business Immigration Cases Ineffective assistance of counsel may constitute a violation of a foreign national’s due process rights under the Fifth Amendment. Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). Several AAO cases discuss ineffective assistance of counsel and Lozada, although there is no explicit recognition that ineffective assistance is a due process violation. Third Circuit held that foreign national’s right under the Fifth Amendment to effective assistance of counsel during removal proceedings does not extend to pre-proceeding attorney conduct in connection with the visa petition. Contreras v. Attorney General of U.S., 665 F.3d 578 (3d Cir. 2012).

  5. Can a Lawyer Limit Malpractice Liability? Rule 1.8(h) A lawyer shall not make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in making the agreement; or settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal council in connection therewith. SeeLimiting Professional Liability

  6. Types of Mistakes Not so Bad: Filed in the wrong place with no negative impact except for lost time Bad: Missed deadline where there is time to redo things’ Really Bad: Incorrect filing or missed deadline where there is not enough time to redo things

  7. Responses to Mistake Always tell the client Manage who is responsible for quality control Do not charge to fix it Absorb the extra expense

  8. Responses to Mistake Apply for discretionary relief from USCIS Help rebuild the relationship Have the client work with a different attorney

  9. Prevent Mistakes Build in time for mistakes to happen Use track FedEx Use a tickler system Set time aside for docket review One person responsible for a case

  10. Fix Mistakes 8 CFR § 214.1(c)(4) The delay was due to extraordinary circumstances beyond the control of the applicant or petitioner, and the Service finds the delay commensurate with the circumstances The alien has not otherwise violated his or her nonimmigrant status The alien remains a bona fide nonimmigrant, and The alien is not the subject of deportation or removal proceedings. (Unfortunately, the Department of Labor has no such provision)

  11. Common PERM & H-1B Mistakes PERM mistakes include filing the PERM outside 180-day window or within 30 days or checking wrong box on ETA 9089. Attorney may arguably pay costs of new PERM since prohibition against payment apply only to foreign national. Attorney may be responsible for mistake of another, such as a faulty credential evaluation. But attorney should not be faulted for subjective expert opinion rejected by USCIS.

  12. Hypo - Grey Area Mistake H-1B selected under FY2013 Master’s cap. USCIS did not care about status of schools then. In 2018 USCIS asserts that school was a for-profit, denies H-1B extension and revokes all prior approved H-1B petitions.

  13. Hypo - When Documentation Doesn’t Turn Out as Anticipated Hypo: Client assures you in the initial consultation that they have the ability to pay the beneficiary’s wage. The evidence they give you, however, is weak. Among other things, the company’s tax returns show a paper loss. What do you do if this occurs: • A week before you plan to file the I-140? • When you get an RFE?

  14. Answer 2-stage engagement letter Specify scope of services in engagement letter

  15. Hypo – Ownership Interest not Disclosed H-1B beneficiary has ownership interest in company Not disclosed on the I-129 Supp H Discussed/not discussed in H-1B support letter Ethical obligation - malpractice concerns

  16. Conclusion – What to do when you make a mistake Fix it Be candid about your mistakes Look for remediation strategies that minimize damage Rebuild your relationship with the client Ensure it does not happen again

  17. Questions and Answers Please complete the conference evaluation: https://www.surveymonkey.com/r/AILA

  18. Essential Take-Aways on Student Visa Practice Moderator: Elizabeth Goss, Boston, MA Panelists: Dan Berger, Northampton, MA David Fosnocht, NAFSA, Washington, DC

  19. Agenda Understanding SEVIS Maintenance of Status: D/S Interrupted Common Consultation Questions Wrap-up, Q&A

  20. What is SEVIS? Student and Exchange Visitor Information System. Since 2003, tracks and monitors F, M, and J nonimmigrants under IIRIRA § 641 Administered by the Student and Exchange Visitor Program (SEVP) – within DHS, ICE

  21. SEVIS Administration • F-1 and M-1 Schools • Principle Designated School Official (PDSO) • Designated School Officials (DSOs) • J-1 Exchange Visitor Program Sponsors • Responsible Officer (RO) • Alternate Responsible Officers (AROs)

  22. SEVIS Status v. Immigration Status SEVIS Status Options In Database (F-1) • Initial • Active • Completed • Terminated

  23. SEVIS Status v. Immigration Status • DHS and DOS will look to a person’s SEVIS record as one source of information for determining that person’s immigration status • SEVIS record terminations may result in a lookout in government databases. The hit must be resolved before the officer grants a benefit

  24. Maintaining SEVIS Data • Sources of SEVIS data • P/DSO interface through RTI or Batch • Data entered by students with approved OPT through the SEVP portal • SEVIS data exchanges with the other DHS and DOS databases (e.g., CLAIMS)

  25. SEVIS and Form I-20

  26. SEVIS Program Dates SEVIS Printed Form I-20

  27. Maintaining SEVIS Data • Required reporting • SEVIS record registration- initial registration and continuing registration each term • Event-based reporting • Changes to school information • Changes to student information • School recertification every two years

  28. What Is a Reportable Event? Events Report Required w/in 21 Days • Changes to school information • Changes to student information Examples of Common Reports • Change in U.S. address, legal name, phone • Failure to maintain status or complete program • Dropping below a full course of study W/O prior approval • Withdrawal, Dismissal or suspension

  29. DSO Reporting Requirements https://www.ice.gov/sevis/dso-requirements

  30. Duration of Status D/S- Defined 8 CFR 214.2(f)(5)

  31. Duration of Status, Interrupted USCIS August 9, 2018 Unlawful Presence (ULP) Memo • ULP count change impacts F, M and J visa status • Rules stay the same for all other nonimmigrants Links and more at: www.nafsa.org/ULP

  32. F-1 Status Violations New memo doesn’t change what constitutes a status violation, it changes the consequences (ULP) Common sources of F-1 status violations • Courseload and enrollment • Duration and timeline • Site of activity • Employment • Criminal Violations

  33. Common Consultation Questions • Travel or Change of Status Consider: ULP Bridge Application Guidance April 5, 2017 https://www.uscis.gov/working-united-states/students-and-exchange-visitors/students-and-employment/changing-a-nonimmigrant-f-or-m-student-status https://www.nafsa.org/Professional_Resources/Browse_by_Interest/International_Students_and_Scholars/USCIS_Policy_on_Filing_Bridge_Applications_During_COS_to_F-1_or_M-1_Status/

  34. Common Consultation Questions • Reinstatement 8 CFR 214.2(f)(16) • Application within 5 months or exceptional circumstances • Does not have a record of repeated or willful violations; • Pursing a full course of study; • Has not engaged in unauthorized employment; • Is not otherwise deportable; and • Violation was either: • Due to circumstances beyond student’s control; OR • An RCL that could have been authorized by DSO + extreme hardship if reinstatement not granted Consider Violation Type and Impact of ULP

  35. Common Consultation Questions • Work Authorization • Work during studies. On-Campus Employment/CPT • Entrepreneurship. • Lottery Selection Impact on OPT/CPT

  36. Curricular Practical Training Issues CPT/OPT Counted in the Aggregate? • Type 1. Student does < 1 year full-time CPT before subsequent 12 months of post-completion OPT • Type 2. Student does OPT after one degree, then does CPT during new degree at same educational level. Scope of CPT • Immediate CPT • Remote CPT • Proving CPT is “an integral part of an established curriculum”

  37. New H-1B rule and Cap-Gap OPT • FY 2020 suspension of pre-registration • Cap-gap extension eligibility should not be affected in the upcoming FY 2020 filing season • Change to cap allocation selection process • “likely increase the number of beneficiaries with a master's or higher degree from a U.S. institution of higher education to be selected for further processing under the H-1B allocations.“ • = fewer H-1 B slots available for U.S. bachelor’s holders and foreign degree holders?

  38. STEM OPT Obligations • School’s role? • Student/Employer Role? • What are my obligations for students with STEM OPT? • 8 CFR 214.(f)(10)(ii)(C) • E-Verify enrollment • I-983 notification obligations – material changes continuing reporting requirements USCIS STEM OPT Page - Employer-Employee Relationship, Site of Employment, Third Parties

  39. Questions and Answers Please complete the conference evaluation: https://www.surveymonkey.com/r/AILA

  40. Death by a Thousand Memos: The Changing Landscape of USCIS Adjudications Moderator: Brian Coughlin Panelists: Dyann DelVecchio Hilbern Julie Galvin

  41. Setting the Stage Between Q3 and Q4 of FY 2017*: 41% increase in H-1B denials 46% increase in RFEs 33% increase in L-1 Service Center denials ____________________________________________________________ *National Foundation for American Policy report

  42. “Buy American and Hire American” (BAHA) Executive Order signed on April 18, 2017. Intent: incentivize purchase of goods manufactured in U.S., prioritize hiring of U.S. workers over foreign nationals. Attaining this goal through rigorous enforcement of employment-based immigration regulations. Specific focus on H-1B category.

  43. “Buy American and Hire American” (BAHA), continued Increased scrutiny across many agencies, particularly: Department of Homeland Security Department of State Department of Labor Department of Justice

  44. The “End of Deference” Memo October 2017 “End of Deference” Memo, and what it means Burden of proof rests with Petitioner, even re: straightforward extensions. A reversal of April 2004 memo, where the USCIS had stated that it would give deference to its own prior decisions in an immigration matter. Practical effects in the form of RFEs and denials of heretofore “routine” filings. Best Practice: “front-load” petition with strong evidence, and know that USCIS is taking a “fresh look” at each petition.

  45. Strategies to Consider Wholesale re-setting of client expectations. Discussing “Plan B” up front is becoming the norm. “Filing Window”: extension petition may be filed as early as six months prior to the I-94 expiration date. 8 CFR Section 274a provides protection, but shouldn’t be our only tool. Best Practice: File extensions at the start of the 180-day filing window. By filing as early as possible, higher likelihood of sufficient time to formulate a contingency plan in the event of a delayed adjudication, RFE, or a Denial.

  46. Memo: Itinerary Requirement for H-1B petitions involving Third-Party Worksites Issued February 22, 2018 and echoes existing rules. Focused on specific industries – IT Services, Management Consulting, Staffing – which require employers to place employees on physical premises of end-clients. Coupled with “end of deference” memo, has triggered numerous RFEs. Aimed at reducing fraud. Intended as “complement” to the 2010 Employer-Employee Relationship memo.

  47. Memo: Itinerary Requirement for H-1B petitions involving Third-Party Worksites (continued) Can these cases still be approved? Contracts Work product End-client letter Itineraries SOWs

  48. NTA Memo Published June 28, 2018. USCIS is still formulating operational guidance as to how this new provision will be implemented, so it is not effective as of this date. As of today, the Notice to Appear (NTA) rule is not being applied in employment-based cases.

  49. As of September 11, 2018, the USCIS began “reserving the right” to by-pass the issuance of an RFE and go directly to the issuance of a Denial The former policy had required USCIS officers to issue an RFE unless there was “no possibility of approval”. The new policy is meant to discourage frivolous and/or “placeholder” filings (cases that do not contain sufficient initial evidence). The USCIS policy memo gives the adjudicator full discretion to deny the petition or application when appropriate; however, the stated purpose is not to penalize filers for innocent mistakes or misunderstandings. Because the policy is only 6 months old: there is no “track record” yet established for exactly how the USCIS will interpret this provision – we do not yet know how the new rule will be applied.

  50. Unlawful Presence Policy Policy Memo, USCIS, PM-602-1060.1, Accrual of Unlawful Presence and F, J, and M Nonimmigrants. (Aug. 9, 2018). Previously, F-1 students who did not comply with the many F-1 technical student status requirements did not start to accrue unlawful presence unless: (1) an immigration Judge made a finding OR (2) the USCIS issued a Denial. Effective August 2018, unlawful presence began accruing in the distant past, unbeknownst to student. Best Practice: Students should communicate with DSO and ensure SEVIS record is 100% accurate. Students must ensure full compliance with rules regarding I-20, I-983, travel, and maintaining status.

More Related