News

U.S. Supreme Court Hears Case of Tennessee Immigrant

The case of a Memphis restauranteur who faces deportation after pleading guilty to a drug charge was heard before the U.S. Supreme Court last week, the Washington Post reports. Jae Lee’s lawyer told him there was no way he’d be deported if he took a plea deal, but he was wrong. The court will decide whether Lee should be given a second chance in court due to bad lawyering. Lee is a legal resident who has lived most of his life in the United States. "This case answers what kind of prejudice you have to show in order to get relief from the mistakes made by your trial lawyer," said one of Lee's lawyers, Patrick McNally of Nashville.
read more »

CLE Outlines How to Change Your Practice to Meet Market Demands

The fourth and final CLE in the “Modern Law Practice Series” will explore emerging trends in the delivery of legal services and how focusing on consumer behavior could benefit your law firm. This session will examine the ways in which consumer-facing companies like Avvo and LegalZoom have capitalized on tailoring services to the needs of the modern legal client and how you can adjust your practice to meet those same demands. The program will be held April 13, and will be available in person and on-demand.

read more »

Immigration Law Forum 2017: International Business Immigration Issues

On the afternoon of April 7, a CLE on immigration law will  be held at the Bar Center. Sessions will focus on U.S. and international business investment immigration issues facing both immigration and non-immigration attorneys such as corporate counsel, employment law, and technology law attorneys. Featured speakers will include government/NGO representatives, cross border company executives, and cross border services representatives. Find out more and register here.

read more »

Rogero: Knoxville Police Aren’t Immigration Agents

Knoxville Mayor Madeline Rogero said in a news conference yesterday that the Knoxville police “will not voluntarily be ICE agents,” Knoxnews reports. Rogero went on to say that it was a safety issue, as the city “cannot do that if people are afraid of calling us when something happens.” At the conference, stories were shared of immigrants who were afraid to even call the health department for services, in fear of being taken away from their children.
read more »

Register Today for the TBA Immigration Law Section Business Immigration Investment Seminar

I want to update you and provide additional information about the Business Immigration Investment Seminar on April 7 that the TBA Immigration Section is sponsoring.

In addition to the traditional U.S. Government Forum/Seminar that the TBA Immigration Section gives every year (with CIS, ICE ERO, ICE Counsel), we decided that this year we would give a Business Immigration Investment Seminar due to the fact that Tennessee has been the number one state for the past three years for international investment.

We have created a three-hour afternoon seminar/forum with three panels covering business immigration investment issues from the varying perspectives of the government sector, private industry/company sector, and cross border/financial services sector, with the following speakers:

1) State, Federal & International Government Perspective(s) Panel, including:

  • The Tennessee Economic Development Office (Nashville);
  • Director of Appalachian EB5 Regional Center (Asheville, North Carolina);
  • Director of Bluegrass International Fund EB5 Regional Center (Louisville); and
  • Director General of British Consulate (Atlanta).

2)      State, National and International Company Perspective(s) Panel, inlcuding the:

  • Executive/Director GE Power (Chattanooga);
  • President of Astra Services (Coral Springs, Florida);
  • President of Business Strategies/Plans (Miami); and
  • Note: A VW executive is also tentatively scheduled.

3)      State, National & International Cross Border and Financial Services Perspective(s), including the:

  • Director of FedEx E-Commerce (Memphis);
  • Financial Advisor of Merrill Edge/Bank of America (Chattanooga); and
  • Partner of International Tax Firm (Washington, D.C.). 

This seminar will be held at the Tennessee Bar Center in Nashville on April 7 from 1 p.m. through 4:15 p.m.  Additional information — along with registration details — can be found on the TBA.org website.

— Terry Olsen is chair of the TBA immigration Law Section

read more »

Second Travel Ban Blocked; Trump Responds with Attack on Judiciary

President Donald Trump criticized the judiciary while on a visit to Nashville yesterday, saying that a federal judge in Hawaii struck down his second travel ban for “political reasons,” the Nashville Post reports. He made comments citing “unprecedented judicial overreach” and said that the Hawaii ruling “makes us look weak.” In addition to the order from Hawaii, a second federal judge in Maryland ruled overnight against a core provision of the ban, the New York Times reports.
read more »

Second Travel Ban Blocked; Trump Responds with Attack on Judiciary

President Donald Trump criticized the judiciary while on a visit to Nashville yesterday, saying that a federal judge in Hawaii struck down his second travel ban for “political reasons,” the Nashville Post reports. He made comments citing “unprecedented judicial overreach” and said that the Hawaii ruling “makes us look weak.” In addition to the order from Hawaii, a second federal judge in Maryland ruled overnight against a core provision of the ban, the New York Times reports.
read more »

Second Travel Ban Blocked; Trump Responds with Attack on Judiciary

President Donald Trump criticized the judiciary while on a visit to Nashville yesterday, saying that a federal judge in Hawaii struck down his second travel ban for “political reasons,” the Nashville Post reports. He made comments citing “unprecedented judicial overreach” and said that the Hawaii ruling “makes us look weak.” In addition to the order from Hawaii, a second federal judge in Maryland ruled overnight against a core provision of the ban, the New York Times reports.
read more »

Tennessee Sues Federal Government Over Refugees

The state of Tennessee filed a lawsuit against the federal government over refugee resettlement today, citing violation of the 10th Amendment, the Tennessean reports. The suit claims the government forced states to pay for the refugee resettlement program. It is brought by the Thomas More Law Center, a conservative legal group, after Tennessee’s legislature approved the lawsuit and Attorney General Herbert Slatery declined to initiate the case.
read more »

Tennessee Sues Federal Government Over Refugees

The state of Tennessee filed a lawsuit against the federal government over refugee resettlement today, citing violation of the 10th Amendment, the Tennessean reports. The suit claims the government forced states to pay for the refugee resettlement program. It is brought by the Thomas More Law Center, a conservative legal group, after Tennessee’s legislature approved the lawsuit and Attorney General Herbert Slatery declined to initiate the case.
read more »

Tennessee Sues Federal Government Over Refugees

The state of Tennessee filed a lawsuit against the federal government over refugee resettlement today, citing violation of the 10th Amendment, the Tennessean reports. The suit claims the government forced states to pay for the refugee resettlement program. It is brought by the Thomas More Law Center, a conservative legal group, after Tennessee’s legislature approved the lawsuit and Attorney General Herbert Slatery declined to initiate the case.
read more »

Tennessee Sues Federal Government Over Refugees

The state of Tennessee filed a lawsuit against the federal government over refugee resettlement today, citing violation of the 10th Amendment, the Tennessean reports. The suit claims the government forced states to pay for the refugee resettlement program. It is brought by the Thomas More Law Center, a conservative legal group, after Tennessee’s legislature approved the lawsuit and Attorney General Herbert Slatery declined to initiate the case.
read more »

Law Dean Credits Trump for Growing Respect for Lawyers

Lawyers who jumped into action to help those affected by President Donald Trump’s executive order on immigration are rising in popularity, at least among those who oppose the policy, the ABA Journal writes. This growing respect for lawyers has led one law school dean to see opportunity. Brooklyn Law School president and dean Nicholas Allard says law schools can build on recent events and highlight the importance of lawyers “to the defense of our rights, the pursuit of justice, and the preservation of our Republic.” Allard writes, “President Trump has made lawyers the breakout stars in the early days of his new administration.”

read more »

Law Dean Credits Trump for Growing Respect for Lawyers

Lawyers who jumped into action to help those affected by President Donald Trump’s executive order on immigration are rising in popularity, at least among those who oppose the policy, the ABA Journal writes. This growing respect for lawyers has led one law school dean to see opportunity. Brooklyn Law School president and dean Nicholas Allard says law schools can build on recent events and highlight the importance of lawyers “to the defense of our rights, the pursuit of justice, and the preservation of our Republic.” Allard writes, “President Trump has made lawyers the breakout stars in the early days of his new administration.”

read more »

TBA Mashup and Mini Legal Hackathon this Friday

In conjunction with the Law Tech UnConference CLE this Friday, the TBA is also offering a variety of free events and programs for lawyers we’re calling a Mashup. One program will teach you about Legal Hackathons and see one in action. A Legal Hackathon is a collaborative effort of experts in the legal profession collaborating with a computer programmer to find a technology assisted solution to a problem in the legal industry. Join the TBA Special Committee on the Evolving Legal Market for a mini legal hackathon that will demonstrate the power of collaborative minds at work. We will have tasty beverages and snacks to help you get your collaborative juices flowing.  
 
Other programs that will be a part of the Mashup include Pro Bono In Action which will show you various pro bono programs you can participate in to help your fellow Tennesseans and Member Benefit Programs that will provide you information on  Fastcase 7, health insurance options for small firms, ABA retirement funds and professional liability insurance.
 
Please sign up now to let us know you are coming.

read more »

Immigration Law Forum 2017

Join the TBA for the Immigration Law Forum 2017: Investment Immigration, specifically designed for both lawyers who are experienced immigration lawyers, and for lawyers who may never practice immigration law during their career. Sessions will focus on U.S. and international business investment immigration issues facing both immigration and non-immigration attorneys such as corporate counsel, employment law attorneys and technology law attorneys. For more details and registration information, visit the TBA website.
read more »

Lawyers Create App to Link Travelers to Legal Help

A team of programmers and lawyers spent their Super Bowl Sunday creating an app to link executive order-affected travelers landing at U.S. airports with free legal help, the Washington Post reports. The site and app went live Monday, and was formed through a partnership between attorneys, legal-data-management company Clio and legal-software firm Neota Logic to provide a solution to attorneys camping out at airports around the clock to help those in need.
read more »

Gorsuch Calls Trump Attacks on Judiciary 'Demoralizing'

U.S. Supreme Court nominee Judge Neil Gorsuch expressed consternation at President Trump’s negative remarks towards the judiciary, the New York Times reports. A White House advisor confirmed that Gorsuch had called Trump’s remarks “demoralizing” and “disheartening.” Via Twitter, Trump had earlier attacked a Seattle judge who temporarily blocked his travel ban, calling him a “so-called judge” whose ruling was “ridiculous.” Trump also  complained that judicial review of the ban was “disgraceful” and “so political.” 
read more »

When Two Worlds Collide—Immigration and Tax Law

When businesses first go international, whether it’s a foreign company opening their first business in the United States, or a United States business opening their first foreign subsidiary, they are often surprised to learn about the American system of worldwide taxation.  Alone amongst major industrialized nations, the United States taxes the worldwide income of United States citizens, and residents.  Non-resident individuals and corporations are subject to U.S. federal tax for income "effectively connected with the conduct of a trade or business within the United States” (“ECI”).  Gains or losses from disposition of U.S. real property (including shares of a U.S. real property holding company) are ECI even if the nonresident is not considered to be engaged in a U.S. trade or business.

As part of this often-complex system are strict reporting requirements with severe penalties for failures to file. Note that there are reporting requirements that are independent of whether a business or individual has any taxable income.  The threshold for reporting is quite low, and a United States person must file a FINCEN 114 if they have authority over any financial account(s) in a foreign country, and the AGGREGATE VALUE of these account(s) exceeds $10,000 at any time during the calendar year.  This amount is not indexed for inflation.

The intersection between immigration law and tax law starts at the very question of what is a U.S. person. It continues when one must make determinations as to whether a person’s status makes them subject to the full range of United States tax and reporting. 

A person’s status, in addition to analyzing the substantial presence test, is necessary for determining a person’s tax residency. Moreover, one must analyze as to what impact tax reporting has on a person’s status, and businesses and individuals must plan accordingly.

When discussing and determining how the worlds of immigration law, and tax law collide and affect one another, it is essential to note that the IRS reviews the reporting and recording of all payments, including but are not limited to: scholarships and fellowships; wages or compensation; independent contractor payments; royalties and commissions; dividends; and interest, etc.  With this said, the IRS can, and does, share this information with the USCIS, and vice versa.

Therefore, when determining the residency status of foreign nationals for U.S. tax withholding and reporting purposes, and in turn determining the tax reporting requirements for all required individuals, the four categories of individuals are broken down as: (i) U.S. citizen, (ii) permanent resident alien, (iii) resident alien for tax purposes, and (iv) nonresident alien for tax purposes.  In general, nonresident aliens are subject to income tax only on U.S. source income, and U.S. citizens and resident aliens generally are taxed on their worldwide income.

When determining whether a foreign national is a resident alien for tax purposes, the substantial-presence test must be followed. Essentially, it functions as the following two parts: the "31-day" test, and the "183-day" test.  First, if the individual has not been or will not be present in the United States for at least 31 days, he or she will be treated as a nonresident alien for tax purposes.  For the 183-day test, all of the days’ present in the United States during the current calendar year must be counted along with one-third of the days during the previous calendar year, and including one-sixth of the days during the second-preceding calendar year. If the total number is equal to or greater than 183 days, the foreign national is a resident alien for tax purposes, but if the total is less than 183 days, then the foreign national is a nonresident alien for tax purposes.

While in "exempt individual" status, a foreign national’s residency status in the U.S. will be that of a nonresident alien, and thereby no days are counted toward the “183 day”/substantial presence test.  The four categories of "exempt individuals" are: 1) foreign government-related individuals -“A” or “G” visa holders, other than individuals holding “A-3” or “G-5” class visas; 2) professional athletes--temporarily in the U.S. to compete in a charitable sports event; 3) students and their dependents -- "F," "J," "M," or "Q" visa holders; and 4) teachers and trainees and their dependents -- "J" or "Q" visa holders.

Failure to properly consider the interwoven tax, and immigration issues can cause a business to be unable to bring in their key employees, or worse subject them to often draconian penalties, both from the IRS and the USCIS.

Despite the Republican victories and the thoughts of less regulations, there is no current evidence that international tax or immigration will become easier.  In fact, the IRS in routine audits has carefully inquired about and traced any foreign money transfers that show up in any account statements, and have then assessed large penalties for any failures to file reporting forms.  As for immigration, there are no signs that immigration will become anything but more difficult, requiring the attorney to become very familiar with rapidly changing policies and procedures.

As was stated previously, if a person has authority over any financial account(s) in a foreign country and the AGGREGATE VALUE of these account(s) exceeds $10,000 at any time during the calendar year, then that person must file a FINCEN 114. Note that this filing is electronic and directly with the Treasury Department, and is therefore not part of the tax return, and as such it is irrelevant as to whether there is any taxable income. 

Giving employees signature authority over a foreign bank account, giving a power of attorney to an agent over someone with a foreign bank account, having an employee temporarily in a foreign country set up a bank account, etc. can mean that each of these agents, and employees have their own reporting requirements.  Too often immigration attorneys fail to properly advise their clients of these reporting requirements, and oftentimes clients are reluctant to disclose their worldwide accounts. However, the penalties for failure to report are severe: if non-willful up to $10,000 per year. If willful, up to the greater of $100,000 or 50 percent of account balances as well as criminal penalties.

The United States has executed many Foreign Account Tax Compliance Act agreements with foreign countries, which causes those countries to have to report to the United States any accounts that they suspect are owned by US persons.  Banks also have reporting requirements. The main point of these programs is to make it very difficult to avoid the reporting requirements. 

In addition, there is a tax form, an 8938, that must be filed with the tax return if certain reporting thresholds are met, and that is fairly duplicative of the FINCEN 114.  Penalties for non-filing of 8938: Up to $10,000 for failure to disclose per year.  After IRS notice: additional $10,000 per each 30 days of non-filing.  Maximum penalty is $60,000, but criminal penalties may also apply.

For clients that have failed to disclose, there are currently programs that a client may be able to obtain reduced penalties in, but they cannot be under current audit to enter them, and the IRS has been discussing closing these programs down, so it’s important to be diligent regarding the reporting.

The good news is that most of the reporting forms are not usually too difficult (aside from the Form 8621) if they are properly and timely filed.  As such, immigration attorneys should encourage their clients to seek competent international tax advice.  By the same token, tax professionals should not ignore the immigration issues involved, and should make sure competent immigration counsel is actively informed and involved.

Overall, tax professionals and immigration attorneys do not communicate with each other enough to determine how the legal pathways to be followed can and often do conflict, and thereby lead to drastic consequences such as tax penalties, and loss of legal status.  With the fact that CBP officers at ports of entry have access to defaults on tax payments, and with the fact that IRS agents conduct audits to determine if B-1 nonimmigrants have been paid by U.S. corporations, it is essential and necessary for both tax professionals and immigration attorneys to work together at the beginning of a matter—rather than hastily contacting one another when the government enters the matter by either issuing a denial notice, or issuing tax penalties.


Terry Olsen is the founder of his own immigration law practice, Olsen Law Firm, in Chattanooga.  His practice areas include both employment and family immigration law. He is chair of the TBA’s Immigration Law Section. He may be contacted at tolsen@tlolaw.com or (423) 648-9390. 

Michael Goode is an attorney located in the Nashville and Atlanta offices of Stites & Harbison PLLC where he helps businesses and families with their tax, business and estate planning needs.  Michael has an LL.M. in Taxation from New York University, and a JD from William and Mary.  He is the vice chair of the Tennessee Bar Tax Section and is an executive council member of the TBA Estate Planning and Probate Section. He can be contacted at 615-782-2346 or mgoode@stites.com.

read more »

OCAHO Finds No Document Abuse

An individual’s claim of document abuse by a company was dismissed by Office of Chief Administrative Hearing Officer (OCAHO) because the company was abiding by E-Verify rules in declining a List B document without a photograph. See Johnson v. Progressive Roofing, 12 OCAHO no. 1295 (Jan. 2017).

Facts

Michael Johnson was hired by Progressive Roofing and thereafter presented his documents in the process of completing his I-9 form – voter registration card (List B document) and two List C documents -- a birth certificate and a social security card. Progressive Roofing told Johnson that the documentation was insufficient because the voter registration card did not contain a photograph. Although unclear whether Progressive Roofing explained the meaing of the insufficiency, the company was enrolled in E-Verify which requires a List B document, if presented, to contain a photograph. (Alternatively, an employee may present a List A document.)

OSC Charge

Johnson filed a charge with the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) (since renamed the Immigrant and Employee Rights Section[i]) alleging document abuse for the company’s failure to accept his List B and C documents. OSC dismissed the charge for insufficient evidence of a violation but advised him of the right to file his own complaint with OCAHO. Johnson did so, alleging the same violation. Thereafter, Progressive Roofing filed an Answer and Motion for Summary Decision asserting it did not violate the law because it was following E-Verify practices and procedures by requiring a List B document containing a photograph or List A document be presented. Johnson did not respond to the company’s motion.

Elements of Document Abuse

OCAHO explained document abuse occurs when an employer requests more or different documents than necessary or rejects valid documents and does so for the purpose of discriminating on the basis of citizenship status or national origin. Thus, document abuse takes two elements, an act and intent. It has not been a strict liability offense since the amendments to 8 U.S.C. §1324b(a)(b) in 1996.

OCAHO’s Finding of No Document Abuse

OCAHO found Johnson did not establish a prime facie case of discrimination because Progressive Roofing was an enrolled participant in E-Verify, which requires any List B document presented to contain a photograph, and did not request more or different documents than required by law. Assuming arguendo, Johnson established a prime facie case, Progressive Roofing met its burden by showing it had a legitimate nondiscriminatory reason for requesting a List B document with a photograph – to be in compliance with federal law. Finally, Johnson did not allege this defense was pretextual. Therefore, OCAHO dismissed Johnson’s complaint.

Takeaway

This decision reminds employers that the use of E-Verify requires following certain rules, including only accepting List B documents with a photograph. In rejecting Johnson’s List B document, Progressive Roofing was merely following the applicable law.


[i] Effective January 18, 2017, the Office of Special Counsel for Immigration-Related Unfair Employment Practices, usually referred to as OSC, was being renamed the Immigrant and Employee Rights Section and remains part of U.S. Department of Justice’s Civil Rights Division. This change was implemented as part of a final rule to update regulations concerning enforcement of employment-related anti-discrimination provisions under the “unfair immigration-related employment practices” section of the Immigration and Nationality Act (INA).


Bruce E. Buchanan is a founding partner of Sebelist Buchanan Law PLLC located in Nashville and Atlanta. He is also “Of Counsel” to Siskind Susser PC on employer immigration compliance matters. Bruce is a graduate of Vanderbilt University School of Law. He is editor of this newsletter and past-chair of the TBA’s Immigration Law Section. Bruce writes a blog on employer immigration compliance located at www.EmployerImmigration.com.  He may be reached at bbuchanan@sblimmigration.com or (615) 345-0266.

read more »

Matter of Dhanasar – the New NIW Standard

After nearly two decades, the Administrative Appeals Office has eliminated the much-criticized NYSDOT standard for EB-2 National Interest Waiver green card cases and replaced it with a new much more realistic one for applicants. According to the AAO:

USCIS may grant a national interest waiver if the petitioner demonstrates: (1) the foreign national’s proposed endeavor has both substantial merit and national importance; (2) he or she is well positioned to advance the proposed endeavor; and (3) on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements.

The appeal was for Dhanasar, who is an aerospace engineer engaged in research and teaching and who self-petitioned for a National Interest Waiver.

Subparagraph (A) of section 203(b)(2) of the Immigration and Nationality Act (INA) (which creates the EB-2 employment-based green card category) makes National Interest Waiver-based immigrant visas available to “qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States.”

Normally, EB-2 applications must be accompanied by a labor certification documenting that an employer has tested the job market and can show there are no able, willing, qualified and available applicants to fill the position. Applicants must therefore have a willing employer go through the process of advertising the position and meeting prevailing wage requirements and if someone with the minimum qualifications for the job applies, the application will be denied even if the applicant’s qualifications are much stronger.

Under INA Section 203(b)(2)(i) “may, when the [Secretary] deems it to be in the national interest, waive the requirements of subparagraph (A) that an alien’s services in the sciences, arts, professions, or business be sought by an employer in the United States.”

The AAO described the 1998 NYSDOT standard that is being vacated as follows:

The NYSDOT framework looks first to see if a petitioner has shown that the area of employment is of “substantial intrinsic merit.” Id. at 217. Next, a petitioner must establish that any proposed benefit from the individual’s endeavors will be “national in scope.” Id. Finally, the petitioner must demonstrate that the national interest would be adversely affected if a labor certification were required for the foreign national.

In Dhanasar, the AAO notes first that the word “intrinsic” in NYSDOT is too subjective. The AAO also believes the second prong of NYSDOT requiring the benefit to be “national in scope” is construed too narrowly by focusing on the geographic impact of the benefit.

But the AAO found the third prong of NYSDOT – that the petitioner must “demonstrate that the national interest would be adversely affected if a labor certification were required” as being the most problematic. The AAO describes four attempts in NYSDOT to explain the third prong including one stating that applicant must show “influence in the field.” In a footnote, the AAO noted that this “influence” standard looks to past success to predict future benefit, but while stating there is some merit in this, there are some talented individuals for whom past achievements are not the best predictor of future success.

The AAO also found that trying to make applicants show a national interest if they skip a process to recruit unidentified US workers doesn’t make sense – particularly for self-employed individuals such as entrepreneurs. The AAO criticized the concept of showing a harm to the national interest if a labor certification is bypassed, something that it noted is not in the statute and unnecessarily narrows the Secretary of Homeland Security’s discretionary authority under the INA.

Thus, the AAO is vacating NYSDOT and adopting a new framework that it believes “will provide greater clarity, apply more flexibly to circumstances of both petitioning employers and self-petitioning individuals, and better advance the purpose of the broad discretionary waiver provision to benefit the United States.”

Under the new standard, an NIW may be approved if “(1) that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.” The AAO does note that USCIS still has the discretion to deny. However, it seems unlikely that one would win the third prong of Dhanasar and lose on a discretionary basis since the third prong is itself a matter of discretion. 

“Substantial merit and national importance” – Prong 1

Under the new NIW first prong, the AAO notes that merit may be demonstrated in a wide range of areas including “business, entrepreneurialism, science, technology, culture, health, or education.” The AAO indicates that showing merit by quantifying economic impact is one way to meet the test, but that it is not required if other evidence of national importance is provided (and providing the examples of research, pure science and the furtherance of human knowledge as potentially enough). Another example offered of merit is where there are national or even global implications in a particular field such as those resulting from improved manufacturing processes or medical advances.

The new standard also deliberately avoids focusing on geographic terms. The AAO is instead interested in “broader implications.” This passage discussing job-creation makes the point and points to much more robust use of the category by entrepreneurs:

Even ventures and undertakings that have as their focus one geographic area of the United States may properly be considered to have national importance. In modifying this prong to assess “national importance” rather than “national in scope,” as used in NYSDOT, we seek to avoid overemphasis on the geographic breadth of the endeavor. An endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, for instance, may well be understood to have national importance.

“Well positioned to advance the proposed endeavor” – prong 2

To demonstrate this second prong, AAO will look at factors including, but not limited to “the individual’s education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals.” Importantly, AAO is not expecting petitioners to show that their endeavors are more likely than not to ultimately succeed. Instead, they need only show by a preponderance of the evidence, that they are well positioned to advance the proposed endeavor.

“On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification” – prong 3 

The AAO is directing USCIS examiners to balance the interests of having a labor certification process to protect domestic workers against other factors deemed to be in the national interest. USCIS should consider factors such as

“whether, in light of the nature of the foreign national’s qualifications of proposed endeavor, it would be impractical either for the foreign national to secure a job offer of or from the petitioner to obtain a labor certification; whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national’s contributions; and whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process. We emphasize that, in each case, the factor(s) considered must, taken together, indicate that on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.”

Key here is that unlike NYSDOT, the applicant need not show a harm to the national interest if a labor certification is not conducted. In a footnote, the AAO significantly notes that because of the nature of the proposed endeavor, it may be impractical for an entrepreneur or self-employed inventor, when advancing an endeavor on his or her own, to secure a job offer from a U.S. employer thus making the labor certification problematic. This observation should greatly improve the outlook for entrepreneurs interested in using the NIW category to pursue a green card.

The AAO then went on to analyze Dhanasar’s work and his experience. The AAO found that the research work met the new standard and that was enough to order the denial remanded back to the Service Center. As an aside, the court declined to sign off on Dhanasar’s argument that his work teaching a STEM field was enough to qualify. 


Greg Siskind is a partner with Siskind Susser PC - Immigration Lawyers. After graduating from Vanderbilt University, he received his law degree at the University of Chicago. He's written four books and currently serves on the Board of Governors of the American Immigration Lawyers Association. He can be reached at (901) 682-6455 or gsiskind@visalaw.com.

read more »

Letter from Editor

I would like to thank Greg Siskind, Terry Olsen and Michael Goode for their insightful articles in this issue. I am always looking for writers; so, if you would like to write an article, please feel free to contact me at bbuchanan@sblimmigration.com or 615-345-0266.

The TBA’s Immigration Law Section will be having its Annual Seminar on April 7 on the topics of “Immigration Benefits, Court, Enforcement and Removal" and “Investment Immigration Government, Company, and Global Perspectives." I hope to see many of you there.

Bruce Buchanan

read more »

ABA Groups Create Website to Respond to Immigration Order

The American Bar Association’s Futures Initiative and Center for Innovation has created a new website to respond to the executive order that bans citizens of seven countries from entering the U.S., the ABA Journal reports. ImmigrationJustice.us is a portal for attorneys interested in volunteering their legal expertise, language experts who can volunteer to translate, as well as members of the public looking to find information on the travel ban and other immigration-related issues. The website was created in just a few hours after an American Immigration Lawyers Association member told the groups that the AILA was struggling to coordinate the flood of pro bono volunteers since the announcement of the order. 
read more »

Independence of Judiciary Not Up for Negotiation, ABA President Says

American Bar Association President Linda Klein today called on lawyers to defend the rule of law despite comments against the judiciary coming from the U.S. executive branch, according to the ABA Journal. “Let us be clear. The independence of the judiciary is not up for negotiation,” Klein said in an address to the ABA House of Delegates. The House later adopted a resolution urging the U.S. government to withdraw the Executive Order barring citizens from seven Muslim-majority countries from entering the United States. Klein also announced the launch of an online portal to coordinate efforts of lawyers helping immigrants affected by the ban.
read more »

Bill Introduced Would Require “Alien” on Immigrant IDs

A bill introduced yesterday would require the Tennessee Department of Safety to label ID cards with “alien” or “non-citizen” for anyone who does not have permanent status to live in the U.S., the Tennessean reports. Rep. John Ragan, R-Oak Ridge, cited terror attacks as the rationale for filing the bill. The legislation also calls for any license, permit or identification to expire when the person’s work visa or temporary authorization expires. Advocacy organizations likely to oppose the legislation say it is unnecessary and will threaten foreign investment in Tennessee. 
read more »