2019 Edition

Immigration Law for Paralegals

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IMMIGRATION LAW FORPARALEGALS

LawPracticeCLE

Presented by:Bruce E. Buchanan

Sebelist Buchanan Law PLLCNashville, TN & Atlanta, GA

bbuchanan@sblimmigration.com

Paralegal’s Role in the Immigration Law Office

• Paralegals, under the supervision of

immigration Attorneys, help people and

employers navigate the very complex and

ever-changing process of Immigration.

Services Performed by Paralegals

• Paralegals, under the supervision of Attorneys,

perform services such as:

▪ Intake;

▪ Completing forms;

▪ Communicating with clients;

▪ Communicating with government agencies;

▪ Obtaining personal documents such as police

reports, divorces and birth certificates for the

Attorney;

Services Performed by Paralegals (Cont’d)

• Preparing documents For Attorney to submit;

• Writing letters, drafts of cases, briefs, and appeals for

Attorney;

• Researching for Attorney;

• Translating and interpreting, or securing these services

for the Attorney;

• Managing the office;

• Managing cases;

• Filing cases with government agencies and managing

logistics;

• Collecting fees and payments.

Ethics and Professionalism

• Paralegals play an important role in client relations.

Some immigration cases are life and death and should

be treated with the ultimate degree of professionalism;

• Intercultural awareness is of utmost importance, as

clients from all over the world have different cultural

norms and many are traumatized and scared from their

experiences;

• Paralegals (under the attorney’s direction) help the

clients understand the implications of their cases;

• Paralegals should never give advice to clients, without

direction from Attorney.

Confidentiality

• Paralegals must keep client matters

confidential;

• Often family members or friends of clients

will try to get information on a client’s case;

the Paralegal should give no information

unless there is permission from the

Attorney and the client.

• Paralegals should not discuss cases outside

of work.

Unauthorized Practice of Law (UPL)

• It is illegal for anyone other then an Attorney to give

legal advice;

• The Paralegal should never give advice to a client

without the Attorney’s guidance; This is harder than

it sounds and is a big issue, because clients will push

you for information and reassurance when often

there is none to give;

• The Attorney is ultimately responsible for everything

that happens at the firm and legal proceedings can be

brought against the Attorney if there is an UPL.

Case Management

• The Paralegal will work with the Attorneys on case

management. Each Attorney of firm has their own method of

keeping up with the dates associated with each case. For

example, it’s time to “remove conditions”, apply for “Green

Cards”, apply for Naturalization

• File documents with Department of Labor, courts, National

Visa Center, etc.

• Some firms keep lists, some use computer programs, some

use “tickler” calendars, some use index card systems.

• Staff meetings are very helpful to assign projects.

Key Terms, Definitions& Concepts

• A-Number/Alien Registration Number/USCIS # : A unique eight- or nine-digit

number assigned to a noncitizen by the Department of Homeland Security.

• Admissibility: Eligibility of a foreign national to lawfully enter the United States

after inspection and authorization by an immigration officer.

• Admission Number or I-94 Number: An 11-digit number found on Form I-94

or Form I-94A Arrival-Departure Record.

• Alien: Any person not a citizen or national of the United States.

• Asylee: A foreign national in the United States or at a port of entry who is

unable or unwilling to return to his or her country of nationality, or to seek

the protection of that country because of persecution or a well-founded fear

of persecution. Persecution or the fear thereof must be based on religion,

race, nationality, membership in a particular social group or political opinion.

• Beneficiary: A foreign national who is sponsored by a relative or a business,

or has self-petitioned for an immigration benefit.

• Biometrics: The processes used to identify people based on their physical

traits, including fingerprints, photograph and signature.

Key Terms, Definitions

& Concepts (cont’d)

• Certificate of Naturalization: A certificate given at the oath ceremony.

It serves as evidence of your citizenship.

• Civil Surgeon: A medically trained and licensed physician who is

designated by USCIS to perform immigration medical exams.

• Conditional resident: Any foreign national granted permanent

resident status on a conditional basis, who must petition to remove

the conditions of their status before the second anniversary of the

approval date of their conditional status.

• Continuous residence: The length of time a person has maintained a

permanent home in the United States after being admitted as a lawful

permanent resident.

Key Terms, Definitions

& Concepts (cont’d)• DACA: A type of deferred action. It allows some individuals who

were brought to the US as children to receive renewable deferred

action and work permission.

• Duration of Status (D/S): Notation on certain nonimmigrant Forms I-

94 indicating an F-1 nonimmigrant student is authorized to remain in

the United States as long as they maintain a valid status.

• Employment Authorization Document: A general term used to

describe a card USCIS, issues to foreign nationals who are authorized

to work in the U.S.

• Field office: Offices within a USCIS district that provide services for a

particular portion of the district.

• Foreign National: A person without U.S. citizenship or nationality

(may include a stateless person).

Key Terms, Definitions

& Concepts (cont’d)

• FOIA: Freedom of Information Act.

• Green Card: Also known as a Permanent Resident Card. USCIS issues Green

Cards to foreign nationals as evidence of their lawful permanent resident

status in the United States.

• Immigrant and Employee Rights Section (IER): Within the Civil Rights Division

of the Department of Justice, it enforces the anti-discrimination provisions of

the Immigration and Nationality Act (8 U.S.C. § 1324b). This office protects

U.S. citizens and employment-authorized individuals from employment

discrimination based on citizenship, immigration status or national origin, with

respect to hiring, firing and recruitment or referral for a fee, and

discrimination during the employment verification process.

• Inadmissibility: Not being allowed to lawfully enter the United States or

obtain a visa abroad based on acts or conduct that is listed as an

inadmissibility ground in section 212 of the Immigration and Nationality Act.

Key Terms, Definitions & Concepts (cont’d)

• Lawful permanent resident: Any person not a citizen of the

United States who is living in the U.S. under legally recognized

and lawfully recorded permanent residence as an immigrant.

• Naturalization: The manner in which a person not born in the

United States voluntarily becomes a U.S. citizen.

• Nonimmigrant: Foreign national who is admitted to US for

temporary period of time. There are clear conditions on their

stay. There are a large variety of nonimmigrant categories, each

exists for specific purpose & has specific terms and conditions.

• Port of entry: Any location in the U.S. or territories that is

designated as a point of entry for foreign nationals and U.S.

citizens.

Key Terms, Definitions & Concepts (cont’d)

• Refugee: Generally, any person outside his or her country of

nationality who is unable or unwilling to return to that country

because of persecution or a well-founded fear of persecution based

on the person’s race, religion, nationality, membership in a particular

social group, or political opinion.

• Removal: The expulsion of an alien from the United States. This

expulsion may be based on grounds of inadmissibility or deportability.

• Temporary protected status (TPS): The Secretary of the Department

of Homeland Security may designate a foreign country for TPS due to

conditions in that temporarily prevent the country’s nationals from

returning safely, or in certain circumstances, where the country is

unable to handle the return of its nationals adequately.

Key Terms, Definitions & Concepts (cont’d)

• Visa: A U.S. visa allows the bearer to apply for entry to the U.S.

in a certain classification, such as student (F), visitor (B) or

temporary worker (H).

• U.S. Customs and Border Protection (CBP) determine the

admission, length of stay and conditions of stay at a port of

entry.

Agencies Involved in Immigration Law Matters

BIA - Board of Immigration Appeals

• CBP - U.S. Customs & Border Protection

• CEAC - Consular Electronic Application Center

• DHS - Department of Homeland Security

• DOJ - Department of Justice

• DOL - Department of Labor

• EOIR - Executive Office for Immigration Review

• ICE - Immigration and Customs Enforcement

• Immigration Court

• NVC - National Visa Center

• USCIS - United States Citizenship and Immigration Services

• US embassies and Consulates abroad

• US State Department

Intake and Client Communication

• When a client signs a contract or retainer with the firm,

they are given intake forms which gather information

such as:– Contact Information

– Addresses past and present

– Education

– Children

– Languages spoken

– Marriage Status and divorces

– Have they been in the US before

– Employment History

– Criminal History and Traffic violations

– The paralegal can communicate with the clients to gather information by calling,

emailing or regular mail. Many clients do not have email and do not have access to

the telephone while at work. It is important to be flexible in working with clients.

Basics of Legal Research

• Most Legal Research will come from the

Attorney;

• BIA (Board of Immigration Appeals)

decisions;

• US State Department website;

• USCIS Website;

• ***Make sure websites used are neutral

and not propaganda***

Useful Resources for Paralegals

• USCIS website – information on every form, instructions, fees,

where to mail, check on cases, ask for information;

• Immigration Court phone number - is there a record of the A

number, is there court scheduled, where is court scheduled

and with what judge, status of case, hours clock for work

authorization;

• US State Department – reciprocity tables , travel warnings,

embassy and consular information;

• On Line Detainee Locator System;

• I-94 Website –to get copy of most recent I-94 and travel

history;

• Property assessor’s websites of local city – to find worth of

property for Affidavits of Support.

Useful Resources for Paralegals (cont’d)

• Human Rights Watch Website

• Google Scholar

• Date Calculator website

• Age Calculator Website

• Local Criminal Court access to records if available

• National Visa Center

• Portal to apply for Visa after Consular Processing

• Infopass

Employment-related Non-immigrant Visas

• B-1 Business Visitor

• F-1 – OPT/OPT STEM

• H-1B Temporary Worker

• L-1 Intracompany Transferee

• TN Trade National

Employment-Related Non-Immigrant Visas

(con’t)

• E-1/2 Treaty Trader/Investor

• O-1 Extraordinary Ability Alien

• J-1 Exchange Visitor

Nonimmigrant Visas

• Temporary-Time Limited

• Limited Scope of Activity

• Tied to “Sponsor”

• Fast to Obtain

• Study

• Work

• Exchange

B-1 Business Visitor

• Temporary/non-immigrant intent

• Foreign Residence

• No U.S. compensation

• Benefit to foreign employer

Optional Practical Training (OPT)

• Available to college graduates for 1-year of

employment with employer if directly relates to

major area of study.

• Essentially an extension of student’s F-1 status

but with Employment Authorization Document

(EAD).

• Employer does not have to file Petition; rather,

employee files for EAD, through assistance of

school.

OPT - STEM

• After one-year of employment on OPT,

employee is eligible for additional 24 months of

employment on OPT- STEM if:

• Employee has STEM degree,

• Science, Technology, Engineering or Mathematics

• Employer must draft training program (new feature

in last few years), and

• Employer uses E-Verify at worksite in question.

H-1B

• Alien who is coming temporarily to the US to

perform services in a specialty occupation

who meets the requirements for the occupation

• Entry level education requirement is at least

bachelor’s degree or equivalent in relevant field;

• Degree or equivalent must be required to

perform the job;

• Worker must possess appropriate degree or

equivalent.

H-1B

• Initial stay of up to 3 years; total stay of 6 years.

• 85,000 visas available annually – H-1B cap;

• Of those, 20,000 visas available annually to

persons who received masters degree or above

from a US institution.

• Universities, affiliated nonprofits and research

facilities are exempt from visa cap.

• 190,000- 195,000 petitions received in first 5

days in April 2017 and 2018.

L-1 Intracompany Transferees

• Intracompany relationship: • Employee must be transferring to U.S. company from

parent, subsidiary, affiliate, or branch outside the U.S.

• Qualifying capacity: • Manager, executive or specialized knowledge capacity

abroad for 1 year in last 3 years and for intended U.S. position

• Duration:• 7 year maximum for managers and executives (L-1A); 5

year maximum for specialized knowledge employees (L-1B); 1 year for new offices

TN Visas

• TN Visa is for Canadian or Mexican national

who is coming to work temporarily in U.S.

in business activities at professional level.

• Similar to H-1B, except there is no

limitation on length of stay and can be filed

at any time during the year.

• Generally covers a broader range of job

opportunities than H-1B.

• Each TN Visa is valid for up to 3 years.

E-1/E-2 Treaty Trader/Investors

• Employer & employee must be “nationals” (actually

citizens) of country with a qualifying treaty with U.S.

• E-1 is based on conducting substantial trade between U.S.

& treaty country

• E-2 based on substantial investment in the U.S.

• Employer > 50% owned by citizens of treaty country

• Visa typically valid for 5 years

• Admission in 2 year increments;

• No limit on extensions

• Employee must be managerial or have “essential skills”

E-1 Treaty Traders

• Continuous flow of trade: not 1-time

deal

• Significant proportion of income comes

from moving goods and/or services from

treaty country to the U.S., or vice versa

E-2 Treaty Investors

• Must show ownership & control of funds

• Substantial capital investment:

1. proportion of total cost of business

2. not marginal- will produce significantly more

than enough $$ to support investor and others

• Funds placed at risk in commercial sense

• Real, active & operating business in U.S.

O-1

• People with extraordinary ability in the sciences,

arts, crafts, education, business, athletics or any

field of “creative endeavor”

• Must show national/international recognition:

– Major award or prize (Nobel, Pulitzer, etc.); or

– Documentation from 3 out of 8 categories listed in

regulations; or Other "comparable evidence"

• Labor/peer advisory consultation

• Petitioner may be employer or agent

• 3 years initially, one year extensions, no max stay

J-1 VISA

• J-1 Exchange Visitor Program

– Administered by U.S. Department of State (DOS),

emphasis on reciprocal exchange;

– Sponsors designated by DOS for each category, must

receive signed DS-7002;

– Sponsor issues DS-2019 to applicant;

– Includes students, professors, research scholars, short-

term scholars, specialists, industrial trainees, medical

trainees and government sponsored visitors;

J-1 VISA (cont’d)

• Two-year home country residence

– graduate medical training

– gov’t funding

– skills list

• Spouses (in J-2 status) may apply for work authorization

– Unless required to support the J-1 principal

J-1 VISA

• J-1 Student academic training

– Pre or Post graduation

– Up to 18 months

– Postdoctoral research up to 5 years

• J-1 Exchange Trainee

– Designations by occupation, length up to 18 months

– Umbrella sponsorship

– On-the-job training allowed

Employment Related Immigrant Visas

• EB-1 Priority workers

• EB-2 Professionals with advanced degrees or persons with exceptional ability

• EB-3 Skilled or professional workers

• EB-4 Special Immigrants: Religious Workers and U.S. Government Employees (not covering)

• EB-5 Investor Visas (not covering)

EB-1 Green Cards

• Extraordinary ability in the sciences, arts, education, business or athletics

• Outstanding professors or researchers

• Managers and executives subject to international transfer to the United States (L-1As)

EB-2 Green Cards

• Professionals holding advanced degrees

(Ph.D., master's degree, or at least 5

years of progressive post-baccalaureate

experience)

• Persons of exceptional ability in sciences,

arts, or business

EB-3 Green Cards

• Foreign National Professionals With

Bachelor's Degrees (Not Qualifying For A

Higher Preference Category)

• Foreign National Skilled Workers

(Minimum Two Years Training And

Experience)

• Foreign National Unskilled Workers

EB-2 AND 3 PROCESS STEPS

PERM

I-140

EB-2

I-485 EB-3

I-485

PERM or Labor Certification

• Prevailing Wage Determination

• Position Description

• Permanent Job Offer

• No US worker minimally qualified or

available for the job

• Prove through recruitment in the market

• File PERM with U.S. Department of Labor

I-140

• Company’s financial viability – Can they

pay the prevailing wage as documented

in the labor certification?

• Does the applicant qualify for the

position? Evidence of degrees, letters

of experience, etc.

I-485

• Ability to apply depends on priority

date of Labor Certification

• The “personal” part of the application

• Biometrics

• EAD

• Advance Parole

What’s The Significance Of The Numbers?

• The preference classification determines how quickly the second stage of the process can begin.

• Foreign nationals queue for immigrant visas based on preference class/COB and when case filed.

– Take a number – Date PR case first filed becomes place on line (look-back for labor certifications).

– Dept. of State publishes Visa Bulletin (“Now Serving” sign) every month.

– Final stage of PR processing can start once date listed for a foreign national’s preference class and country of birth reach his/her PD.

About Mr. Buchanan

Bruce E. Buchanan is a founding partner of Sebelist Buchanan

Law. He represents employers in various aspects of immigration law,

with a special emphasis on immigration compliance, and

employment/labor law. He received his J.D. from Vanderbilt University in

1982. Before going into private practice, Mr. Buchanan served as senior

trial specialist for the National Labor Relations Board for 20 years. He

also served from 1991 to 2003 as Adjunct Law Professor at William H.

Bowen UALR School of Law.

Mr. Buchanan is co-author of a new book, The I-9 and E-Verify

Handbook, 2d. ed. He also writes on employer immigration compliance

issues on his own blog, located at www.EmployerImmigration.com, and

HR Professionals Magazine. Mr. Buchanan is admitted to practice in

Tennessee, Georgia, Florida, and Arkansas. He may be reached at

bbuchanan@sblimmigration.com or (615) 345-0266.