Business Immigration Law 363A - Spring 2000 - PROBLEMS
1. Y, a citizen of Argentina, is currently the tenth-ranked woman tennis player in her country. Last year she was ranked twelfth. She wants to come to the United States to compete in the U.S. Open. As her immigration lawyer, what should you do?
2. X, a citizen of the United Kingdom, attended Cal Tech for two years in his youth. While there, he studied mechanical engineering. Financially unable to finish his degree, he returned to the U.K. and began a long career at Irving, Ltd., a corporation that manufactures machine parts. During his first five years there, X served as an assistant to one of the company's engineers. His engineering work was outstanding, and he gradually moved up the corporate ladder into positions that combined technical and managerial responsibilities. For the past eight years he has been a second vice-president in the company's marketing division. He occasionally gives presentations at industry conferences in the U.K. and in that way has become reasonably well known. Irving, Ltd. would now like to send X to Cleveland for two to three years so that he can spend full time working with Boring-Is-Us, one of Irving's most important clients. If he can come, X's job would be to solve product design problems; he would be trying to adapt Irving's production methods to the needs of Boring-Is-Us.
You are Irving's lawyer. For what types of nonimmigrant visas would you consider applying, and what problems would you foresee?
3. Y, a citizen of Italy, developed a love of chess early in life. She served as President of the Chess Club during her two years as an undergraduate at the University of Arizona back in the mid-1970's, but she dropped out of college after her sophomore year so that she could devote full time to competing in chess tournaments throughout Europe. She was quite successful, winning a number of lesser competitions and finishing respectably in several major ones.
In 1985, after a few years of competition, Y set up an Italian corporation whose business was to manufacture and distribute elegant chess sets. She ran the business herself, individually handcrafting the pieces at first, and eventually preparing designs for machine production. Soon the company was a thriving enterprise. Within five years, its annual worldwide sales were the equivalent of 3,000,000 U.S. dollars. Y also found time to continue competing in national and local chess tournaments. The most recent ratings of the Italian Chess Federation ranked her 17th in Italy.
It is now 1997, and Y is anxious to expand her geographic and career horizons. While on vacation in the United States (she is here lawfully on a B-2 visa), she consults you, an immigration lawyer, for advice. She plans to return home to Italy before her authorized stay expires and continue to run her chess set business. In about a year or so, however, she would like to come to the United States to establish a second corporation. The main function of that corporation, which she estimates would require an initial investment of $200,000 (an amount she has available), would be to set up and promote professional chess tournaments throughout the United States. Y would want to run the company herself for at least the first two or three years. After that, depending on how well the company is doing and how much she is enjoying life in the United States, she would like the flexibility to decide then whether to stay on for a longer but still temporary period (rather than return to Italy at that time and hire someone else to run the U.S. company). Either way, her intention is to remain in the United States no longer than five years at the most. She also sees this United States company as a high-volume buyer of the chess sets manufactured by her Italian company. While in the United States, she would occasionally compete for prize money in some of the tournaments herself.
Y would like to know what options she has under the United States immigration laws and, if there is more than one choice, the tactical pros and cons of applying for the various possible nonimmigrant visas. What advice will you give her?
4. X, a citizen of Ghana, has been awarded a Smithford Foundation grant to pursue a bachelors degree in chemistry for four years at NYU. Smithford is a private nonprofit organization that receives 75% of its funds from private contributions and 25% from the U.S. government. By its terms, the grant is contingent upon X obtaining a J-1 visa.
X is not now certain of his future, post-degree plans. Graduate education is one possibility. Perhaps he will want to return to Ghana, or perhaps he will want to find a way to remain in the United States.
X has the option of turning down the Smithford grant and instead borrowing money from his parents to study at NYU, in which case he would be eligible only for an F-1 visa. But he would eventually have to pay his parents back, and in addition the amount they could spare would be less than the amount of the Smithford grant (though still adequate to support himself, his wife, and his three young children, all of whom would be coming with him).
X wants to know whether he is better off with a J-1 visa and a Smithford fellowship, or an F-1 visa and borrowed funds. As his lawyer, what advice do you give him?
5. Y, a citizen of Afghanistan, entered the United States on a J-1 visa four years ago. She has received no government funding at all, but she does possess skills that are needed by her home country. A few months ago she married a United States citizen and applied to the INS to adjust her status to that of permanent resident. With her application she requested a waiver of section 212(e), asserting exceptional hardship. She has contracted a life-threatening (but noncontagious) disease for which medical treatment is available only in the United States. Living with her and her new husband is her seven-year-old daughter from a previous marriage. Her daughter, who is a lawful permanent resident, speaks only English, knows only American culture, and thus will find life difficult if the family has to move to Afghanistan. You are the INS District Director. Should you recommend the waiver?
NOTE: To do these Problems, you will need to consult the actual text of INA § 274A. Assume all hirings occurred after the enactment of IRCA (November 1986) unless specified otherwise.
6. A hired an alien student who was authorized to work off campus up to 20 hours per week. A was aware of that limitation and initially respected it. As things got busier in the office, however, A occasionally asked the alien to put in 30!hour weeks. The alien obliged. Has A violated INA § 274A?
7. D, a homeowner, knows she will be out of town for the summer. She therefore hires Ken, a high school student who lives next door, to mow D's lawn throughout the summer. Ken, a United States citizen, agrees. He ends up mowing the lawn five times, for which D pays him $60 upon her return. D has known Ken since Ken was born and does not ask him to display any documents. Has D violated section 274A?
8. F, the President of a small company, and Helen, one of his employees, together consult you for legal advice. When Helen first applied to the company for a job, she showed the personnel officer a driver's license and a social security card. The latter bore a special message to the effect that it did not authorize employment. As Helen had hoped, the personnel officer did not notice that message. After three years on the job Helen has become a highly valued and respected employee. Two days ago she confessed to F that she did not have work authorization and asked whether he would help her "become legal" by applying for labor certification. F would like to keep her on his staff, and your opinion is that her occupational skills would probably qualify her for labor certification. Having studied the material in this section, what advice would you give? In framing your answer, consider the substantive law, the practical consequences for all concerned, and any applicable ethical constraints.
NOTE: To do this Problem set, you will need to consult the actual text of INA § 274B. Assume all events occur after enactment (November 1986) unless specified otherwise. Assume also that every employer has more than three workers.
9. Employer A has a firm policy of hiring only United States citizens of Italian extraction"citizens because he wants to do his part to encourage naturalization, ethnic Italians because he is of Italian ancestry himself and enjoys the cultural bonds that he shares with his employees. A acknowledges that neither requirement has anything to do with the employee's ability to perform the job.
X (who happens to be of Italian descent) was lawfully admitted for permanent residence in 1990. She became eligible for naturalization in 1995 and formally applied in December 1997. In January 1998, while her naturalization application was pending, she applied to A for a job and was turned down because she was not a citizen. Y, a United States citizen, applied at the same time and was rejected because he was not of Italian descent. Z, a United States citizen of Italian descent, got the job.
Does either X or Y have a claim under INA § 274B? As a policy matter, what is your reaction to the results?
10. Employer C has a personnel manager who will hire only those who can show either proof of United States citizenship or a green card (possessed by lawfully admitted permanent resident aliens). V, a nonimmigrant with work authorization, is rejected because of that policy. Does she have a claim under INA § 274B?
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