Interview Published

Advocate Rajeev Bastola published a brief interview on January 2nd, 2008. You can view the details of the interview at http://niyamkanoon.blogspot.com/2008/01/interview-with-santosh-giri-nepalese.html.

There are various other valuable legal resources available at ‘niyamkanoon’ website. Likewise another website www.legalnepal.com has also been initiated which shall be the ultimate website for the Nepalese legal professionals.

Efforts like these shall eventually make our dream of a prosperous judiciary come true.

Filed under: Laws, Legal Development, Nepalese Students, Social Engineering, The Judiciary, Young Lawyers, कानून नेपाल

Asylum for the World’s Battered Women

By ALEX KOTLOWITZ

Published: February 11, 2007

This past fall, a United Nations report denounced the extraordinary number of women who are victims of domestic violence — and for whom protection from the authorities is often nonexistent. In some nations, like Bangladesh and Ethiopia, the U.N. found that as many as 6 of every 10 women interviewed had been beaten or sexually assaulted by their husbands or partners. The report called for better protection for abused women, but it didn’t address how first-world nations like the United States should treat those women who manage to escape their abusers and flee their countries. Should victims of domestic violence be eligible for asylum, a protection that has traditionally been preserved for those persecuted as a result of political turmoil?

At times we’ve said yes; at other times we’ve said no. And in some cases, as with Aruna Vallabhaneni, we’ve just said, hold on until we make up our mind. Vallabhaneni is a tall, distinguished-looking woman who came to the U.S. from Hyderabad, India, in March 1997 on a tourist visa. She in fact had no intention of returning home. She was wed at age 17, through an arranged marriage, to a man who it turned out had a gambling problem and who would regularly demand that Vallabhaneni, who came from a prosperous Hindu family, request money from her parents. When she refused, he beat her. She was once hit so hard that she lost her sense of smell. Another time, she said her husband kicked her with such force that she experienced vaginal bleeding. She did file a complaint with the Indian police, who held her husband overnight, but when he was released, she testified, he beat her so severely that she was hospitalized for two days. She was afraid to report him to the authorities after that. So she ran. She was so desperate to find safety that she left her two children — a son, 12, and a daughter, 10 — with her parents, assuming that they would be able to join her once she arrived in the U.S. and applied for asylum. Her claim, though, was denied.

It is now a decade later, and Vallabhaneni, who lives in Chicago, remains in a kind of suspended animation. On appeal, her case was sent back to the immigration judge for reconsideration, but at the request of her attorney, the judge put off deciding her case until there’s a clearer understanding as to how to treat victims of domestic violence.

It’s not, however, as if the courts and the authorities haven’t already wrestled with this question. The U.N.’s Refugee Convention of 1951, which a majority of countries, including the United States, eventually adopted, established guidelines for deciding who should be offered refuge. Essentially the convention and its subsequent protocols said that individuals with a well-founded fear of persecution for one of five reasons — political opinion, race, religion, nationality or membership in a particular social group — should not be sent back to their home countries. The category “particular social group” was added at the last minute, and so no one is certain of the authors’ original intentions. Sex was not specifically mentioned.

But in the 1990s, U.S. immigration authorities began to recognize sex-based persecution as grounds for asylum. First, the Board of Immigration Appeals took up the asylum claim of a Salvadoran man who feared the guerrillas because he belonged to a taxi-driver cooperative. In rejecting his claim, the board laid out a definition for “social group” that seemed rather straightforward: individuals with immutable characteristics that they can’t change or shouldn’t be asked to change. A short time later, Fauziya Kasinga, who fled Togo because she feared undergoing genital cutting, a cultural practice of her tribe, applied for asylum. The board granted it, ruling that as a young woman and as a member of this particular tribe, she clearly had characteristics she couldn’t change. And, the board ruled, having intact genitalia is “so fundamental to the individual identity of a young woman that she should not be required to change it.”

Then came the jumbled thinking. In 1996, Rodi Alvarado, a young Guatemalan, sought asylum because, she claimed, her husband had brutally beat her and had repeatedly raped and sodomized her. Moreover, the Guatemalan authorities had refused to protect her, saying it was a domestic matter. Like Vallabhaneni, she so feared for her life that she left her children behind and fled to the U.S. There has been profound disagreement among U.S. authorities over how to deal with Alvarado, whose credibility was never in question. An immigration judge granted her asylum, but the government attorneys appealed to the Board of Immigration Appeals, which ruled that Alvarado’s husband didn’t brutalize her because she was a woman but rather because she was his wife. The board ordered her removed to Guatemala. Then Attorney General Janet Reno stepped in, as she was permitted to do, and vacated Alvarado’s deportation order. In her last days in office, Reno also proposed a set of regulations that recognized that a credible claim for asylum could be made based on domestic violence if it was severe and if the country in question was unwilling to do anything about such abuse.

That was more than six years ago. These administrative regulations — despite their support from an unlikely coalition of politicians, from Sam Brownback on the right to Hillary Clinton on the left — have still not been approved. Immigration judges have interpreted this logjam in conflicting ways. There have been grants as well as denials of asylum for domestic-violence victims, and there have been many cases that, like Alvarado’s and Vallabhaneni’s, have been placed in limbo until there’s some clarity about our policy. At a recent gathering with Attorney General Gonzales, immigration judges reiterated their longstanding request for clear regulations so that they’d have some guidance. But there appears to be an impasse. Three years ago, the Department of Homeland Security came out in support of Alvarado’s bid for asylum, but it’s apparent that there has since emerged internal disagreement over how to handle domestic-violence claims. Last month, a D.H.S. spokesman assured me that the agency in conjunction with the Department of Justice “is diligently working on publishing a final rule.” The agency has told reporters this before.

The D.H.S. spokesman told me that before a rule can be issued, there are still “a lot of complex analytical questions to be answered” revolving around how to think about social groups. This, it seems, has been central to the debate: Does beating your wife rise to the level of group persecution? Some argue that a husband brutalizing a wife may do so because he’s a drunk or a bully and not because he wants to beat all women. The upshot, says James Hathaway, the director of the program in refugee and asylum law at the University of Michigan, is that “if you can’t prove intent of the guy with the stick, then you don’t get asylum.” And that, he adds, is pretty hard to do. In immigration circles, this is what’s called the nexus question, which essentially asks asylum seekers: Are you being persecuted on account of your membership in a particular social group? Hathaway points out that some countries, like Britain and Canada, grant asylum if you can show that you’ve been seriously abused and that your government is unwilling to protect you because of your membership in a particular social group, that is, because you’re a woman. In essence, says Hathaway, these nations’ refugee laws consider domestic violence more than just a private matter.

Behind these legal arguments, though, is a practical one, especially in these times when immigration is such a hot political issue. Some believe that if we freely used sex to define a social group, it would open the floodgates to victims of domestic violence, who in many countries, as the U.N. study suggests, can be found in large numbers. Deborah Anker, a clinical professor of law at Harvard, says that such a fear has “always underlined every concern about asylum.” During the cold war, when the U.S. quite readily granted asylum to political dissidents from the Soviet bloc, there were some who worried that tens of thousands of people who were unhappy under Communism would seek refuge in the U.S. It never happened. And Canada, which began granting asylum to victims of domestic violence in 1993, never experienced the surge that critics worried about.

There are a number of reasons that today’s floodgate concerns are a red herring. Asylum seekers need to provide corroboration of their stories, and in the case of domestic violence, that could mean obtaining evidence like hospital records or affidavits from family members (which is what Vallabhaneni provided). They also must be able to show that they can’t get governmental protection from their abusive husbands. What’s more, it is especially difficult for women, who often have little or no resources, to leave their home countries. It has also become more difficult to enter this country post-9/11.

For Harvard’s Anker, the Ping-Pong approach to domestic-violence victims seeking asylum — sometimes yes, sometimes no — is reflective of an immigration system that is marked by inconsistencies. A comprehensive study last year found huge disparities among immigration judges and their rates of approval for asylum seekers. “What I think is at stake,” Anker says, “is whether asylum is going to be governed by a rule of law or whether we go back to an ad hoc, politicized regime,” which it was before the U.S. formally adopted the international standards of refugee law in 1980. Stephen Knight, an attorney with the Center for Gender and Refugee Studies at the University of California’s Hastings College of Law, suggests that it boils down to a rather simple divide: “There are people who just don’t believe that these women are refugees.”

Not long ago, I met Vallabhaneni for coffee. She has been able to secure a work permit, and this was her day off from her job as a customer-service agent for Southwest Airlines at Midway Airport. At one point, she caught me glancing at a bar of milk chocolate that she’d been nibbling on. She laughed. “It makes me sturdy,” she told me, “and I didn’t want to cry in front of you.” She then began showing me photographs of her children, whom she speaks to three times a week and who she told me are now grown and living with her parents. At that point, Vallabhaneni began to tear up. “I feel like I betrayed my children,” she said. “I dream about them almost every day.” But she told me that if she returned home, her family would force her to return to her husband, and she feared that would be the equivalent of a death sentence. I asked her what she would do if in the end she was denied asylum. She had clearly given this a lot of thought and so was ready with her answer. “I can’t go back,” she said.

Alex Kotlowitz, a regular contributor to the magazine, is a writer in residence at Northwestern University. (http://www.nytimes.com/2007/02/11/magazine/11wwlnidealab.t.html?pagewanted=2&_r=1&ref=magazine)

Filed under: Asylum in the US, Human Rights, Immigratoin Reform, Justice, Laws, Legal Development, Nepalese Students, Social Engineering, Young Lawyers, कानून नेपाल

Eight Ways to Get Denied, Banned, Detained or Deported from the U.S.

http://immigration.about.com

These Common Immigration Mistakes Will Keep Your Feet Off U.S. Soil

A variety of circumstances can lead to a visa or green card denial, banning from the U.S., or deportation. Here are eight avoidable immigration mistakes you need to know about.

Immigration Mistake #1: Break the Law, or Become a Suspect

If you have had any trouble with the law, you may be:

a) Denied a visa or entry at ports and borders, if you have a criminal record in any country, or criminal charges pending outside the U.S.;

b) Detained in a U.S. jail if you have broken (or are suspected of breaking) a U.S. or international law;

c) Banned from entering the U.S. for a stipulated number of years, or forever, because of criminal convictions abroad or in the States;

d) Deported from the U.S. if you are found guilty of a “crime of moral turpitude,” or extradited if you face serious criminal charges abroad.

Immigration Mistake #2: Misrepresent Long-Term Reasons for Coming to the U.S.

When you apply for a visa, you must intend to use that visa for its official purpose. If you come to the U.S. as a visitor, intending to seek work or marry, that’s immigration fraud. In any case of misrepresentation you may be;

a) Denied U.S. entry, a visa, a green card or citizenship;

b) Detained at the border or port of entry;

c) Banned from the U.S.;

d) Deported if you fail to leave on your own when ordered to.

Entering with one intent, and later changing your mind is not illegal. But, for example, if you enter on a visitor visa and get married a week later, that is going to be highly suspect: Immigration officials will likely believe that you planned this all along, that it was not a spontaneous change of plans.

Immigration Mistake #3: Express Hostile Anti-American Sentiments

If you express hostile anti-American sentiments;
if you are vocally sympathetic towards terrorist groups; or,
if you are suspected of being violent or smuggling drugs, you could be:

a) Denied entry to a U.S.-bound flight, or to the U.S. upon arrival;

b) Banned from future entries to the U.S.;

c) Detained in a U.S. jail indefinitely if you are suspected of having terrorist ties;

d) Deported if the U.S. government determines that you are a danger to its citizens.

Just be aware that post 9/11/01, even seemingly harmless jokes about terrorism could lead to a lot of unnecessary questioning and stress. Use common sense. No bomb jokes. Unless of course you really are a criminal, in which case, please flaunt it.

Immigration Mistake #4: Enter the U.S. Illegally

If you have ever entered the U.S. by sneaking over the border or stowing away, you cannot gain legal status unless you a) marry a U.S. citizen and prove the relationship is legitimate, or b) the government grants you amnesty, refugee or asylum status.

If you enter the U.S. on a Crewman’s Visa, fail to depart with your vessel, and then remain in the U.S., not even marriage to a U.S. citizen will make you legal. Only a government amnesty or waiver would help you. You’d want to consult a lawyer.

Illegal crossers could be:

a) Denied a future visa or green card;

b) Banned from re-entering the U.S. for 5-10 years;

c) Detained within the U.S. for a removal hearing; and/or,

d) Deported if caught living in the States, even years later.

Immigration Mistake #5: Overstay Your Visa and I-94

If you stay in the U.S. longer than your Visa, I-94 and/or grace period (180 days after expiration) allow, you face:

a) Future denial of visas;

b) Bans from re-entry;

c) Detention and deportation as an illegal alien, unless you:

· Marry a U.S. citizen, based on a genuine, existing relationship and have a sponsor who will sign and qualify for an Affidavit of Support;

· Are granted a waiver for extenuating circumstances; or,

· Manage to qualify for Temporary Protected Status, Asylum or Refugee Status.

Immigration Mistake #6: Enter the U.S. Very Contagious, or Pregnant

If you arrive in the U.S. with a serious contagious illness, such as Tuberculosis, you may be:

a) Denied entry; or,

b) Detained in quarantine.

Pregnancy’s not an illness, but it does fall under “Health.” So if you’re pregnant, you may be:

a) Denied a visa or U.S. entry as student, worker or exchange visitor.

b) Denied if you’re from a country with excessive illegal immigration to the U.S. or

c) Denied if you enter the U.S. in your third trimester. (Why? Babies born in the U.S. are automatic citizens and the government tries to prevent visitors from taking advantage of this.)

As an aside, airlines will often refuse very pregnant women just because flight attendants prefer not to deliver babies at 30,000 feet.

Immigration Mistake #7: Lie on Your Application

Lying about anything on any visa, green card or citizenship application can result in:

a) Denial;

b) A ban; or,

c) Deportation

The lies taken most seriously aside from intent include those related to criminal records, war crimes, negative political affiliations and terrorist ties. But any lie can be used against you. If you’re afraid that the truth will have serious consequences, consult an attorney before you apply.

Immigration Mistake #8: Fail to Keep the USCIS Informed

Since 9/11 the USCIS has been more diligent about keeping track of:

· B and waiver Visitors;

· M and F Students;

· Temporary Workers;

· Adjustment of Status applicants;

· Green Card holders here for fewer than 10 years; and,

· Sponsors of those Green Card Holders
If the USCIS is unable to verify your status or reach you:

a) Your application could be denied; or,

b) Your visa revoked, which could ultimately lead to:

c) Detention, future denials and bans or deportation for being an illegal alien.

Filed under: Immigratoin Reform, Laws, Legal Development, Nepalese Students, Young Lawyers, कानून नेपाल

Immigration Options for Attorneys Entering the US

Navneet Chugh, The Chugh Firm. October 31, 2007.

The news has been filled with stories of one profession after another facing shortages of workers as the US economy continues to grow, overall unemployment remains at historically low levels and baby boomers are starting to retire in ever increasing numbers. While we hear about too few nurses, doctors, teachers, engineers – but we’re not hearing about a looming shortage of lawyers.  

The perception in and out of the profession for many years is that the US has far too many lawyers. And without getting in to the controversial debate over whether America is too litigious or whether non-lawyers should be able to take on more forms of work traditionally considered legal in nature, the same demographic and economic pressures affecting the rest of the workforce are affecting the legal profession. Baby boomers have begun retiring and the number of workers replacing them cannot keep up.  

Furthermore, US law firms – particularly the country’s largest law firms – have done a brilliant job competing for global legal work and that has driven their continued growth. The largest law firms in the US have now crossed the 3,000 lawyer mark and there is no reason to expect this trend to slow anytime soon. Those firms hire an incredibly large number of students. Latham and Watkins, the number four law firm in the NLJ 250 survey, hired 268 summer associates last year compared to just 164 in 2004.  

Finally, a most surprising trend – one that has never been a problem for American employers in prior generations – is a reverse brain drain where American lawyers are being recruited by foreign law firms that place a high value on American legal experience or top American legal education. The National Law Journal recently reported a single year jump of 23% in the number of American law graduates going to work for foreign firms.   

The pressures on the legal labor market are starting to show up in the statistics. The number of law students graduating from US law schools each is approximately 40,000 and that number has been relatively flat for several years. The number being recruited to work for NLJ 250 firms is now about 10,000 and the demand is increasing year to year. While producing more lawyers is not as difficult as producing more physicians or more pharmacists, the fact that virtually all professions are facing shortages at the same time that are expected to get worse, simply saying that we will increase the number of lawyers is not so simple when there is considerable competition to attract students.  

Law firms are using a variety of strategies to address the crisis. Most involve traditional techniques like more aggressively recruiting, opening doors for women and minority attorneys, raising salaries and the often counterproductive strategy of trying to get lawyers to bill astronomically large numbers of hours.  

The top law firms are also going further down the list as far as considering applicants from schools that are not in the top tier and are considering students that are graduating lower in their class, but they also face limits as they must maintain a quality edge if they are to compete for global work.  

A growing number of firms are starting to take their cues from other professions and their overseas competitors and have begun to seek out global legal talent. In the past, many international lawyers were recruited from the ranks of those pursuing J.D. and LLM degrees from US law schools. That pool of students is still an important source of talent. But American law firms are now combing the planet in search of top lawyers.  

Nowhere is this more evident than in Australia where US firms have been recruiting heavily. Ask a lawyer at any large Sidney law firm and you’re likely to get an earful about American and UK firms pursuing their lawyers. Well-known attorney recruiting firm Major, Hagen and Africa (www.mlaglobal.com) recently launched an Australia initiative and more firms are likely to follow soon.  

Why Australia ? Several reasons:  

-          English fluency

-          A common law legal tradition similar to America ’s

-          Lower salaries in Australian firms compared to their counterparts in the US

-          A new visa category specifically available to Australians that makes getting work authorization in the US much faster and easier  

Most of the Australians are heading to New York firms or branch offices. New York has traditionally been the state with the most liberal requirements for foreign lawyers seeking entry to the US and much of the international transactional work that is driving demand for more lawyers happens in the Big Apple.  

But New York is far from the only place where international lawyers are headed. You’ll now find foreign lawyers in every state and in most large law firms. And smaller and mid-sized firms have gotten in to the game as well.  

Assuming you are able to identify an attractive candidate from overseas, how does an employer weave its way through the immigration maze?

 

Non-Immigrant Visas – The Alphabet Soup  

There’s a reason why there are 10,000 immigration lawyers in the United States (probably 90% of the world’s lawyers practicing in this field). The US has arguably the most complex set of immigration laws and the largest immigration bureaucracy of any country. And that’s very likely because despite several years of news stories describing America ’s declining popularity, the US is still far in front of any other country in terms of demand for visas.  

Without getting in to a long discussion of how the US immigration system works, it helps to know that essentially there are five types of statuses that any person in the US can have:  

- US citizenship based on place of birth, having a US citizen parent or naturalization

- Lawful Permanent Residency (LPR), commonly referred to as the green card (and also called an immigrant visa)

- Non-immigrant status such as students, work visa holders and visitors

- asylum, refugee and temporary protected status

- unlawfully present immigrants  

Lawyers practice in the US in all of these categories (yes, even the last category though that would typically only be the case for a lawyer who had a work visa and fell out of status).  

This article focuses on non-immigrant and immigrant visa categories.  

 

The H-1B visa  

If you have been following the immigration debate in the news, you might have heard about Bill Gates making the rounds in Washington seeking more visas for technology workers. What most people don’t realize is that the H-1B visa – the temporary work visa used by America ’s technology companies to hire information technology professionals – is also the visa used by every other industry to hire foreign university-educated professionals.  

The number of H-1B visas available today is the same as the number set in 1990 and has not kept up with overwhelming demand. The 65,000 allotted H-1B visas can be claimed up to six months before each new fiscal year begins and on April 1, 2007, the allotment for the fiscal year that began October 1, 2007 opened. Within hours, US Citizenship and Immigration Services received a staggering 200,000 applications and had to have a lottery to determine which companies would get their workers.  

Law firms may have a slight edge, however. In the early part of this decade, Congress passed legislation creating a special bonus pool of 20,000 H-1B visas for those receiving advanced degrees from US universities. This covers foreign law students receiving JD and LLM degrees in the US . The 20,000 bonus visas were used up after just a few weeks in 2007, but at least a law firm able to file a case in early April could secure a visa with an October 1^st start date without having to go through a lottery. Of course, not all firms have the luxury of being able to time an application for an April filing.  

Congress has also created an exemption from the 65,000 visa limit for universities and non-profit research institutions so legal departments at those employers can use as many H-1Bs visas as they need.  

H-1B applications for attorneys have a few key requirements:  

-          the applicant must have an employer sponsor

-          the employer must demonstrate that the applicant will be paid the prevailing salary in the metro area or at least as much as similarly employed lawyers at the same firm possessing the same experience and credentials

-          the employer can show that it has the ability to pay the offered salary

-          the applicant has the requisite qualifications to work in the position (e.g. possession of the necessary education and a license, if required, or proof that all requirements for licensure have been met if actual possession of the visa is a requirement for licensure)

-          demonstrating the position is one normally requiring a bachelors degree or higher (obviously this is not a problem to demonstrate for attorney positions)  

One key issue for attorneys will be obtaining a license or demonstrating that a license is not required for the work to be performed. A foreign lawyer coming to the US to practice the lawyer’s home country law as a foreign legal consultant would only need to demonstrate he or she is qualified to practice that nation’s law.  

Many states permit foreign lawyers to sit for the bar examination, though many require a demonstration that the foreign education is equivalent to a US legal education. Some states are very liberal and are popular locations for foreign lawyers to seek a license (such as New York ). Other states can be restrictive. Some states require a social security number to obtain a license, something that is basically impossible if one does not already have a work status in the US . In such a case, if the state will allow the lawyer to sit for the bar exam and otherwise satisfy all of the licensing requirements and a state bar will verify this, USCIS may issue an H-1B.  

Some attorneys will also seek an H-1B as a law clerk or a paralegal. A law clerk position will normally require at least a bachelors degree and a bachelors degree for a paralegal is something frequently required in that profession.  

H-1B applications are initially filed with US Citizenship and Immigration Services and the processing times vary depending on where the case is filed and how much money is paid. Normal processing takes three to four months. For $1000 on top of normal filing fees, a case will be decided in 15 days or less.  

The $1000 for speedy processing is just the start, however, on the USCIS fees. H-1B employers also must pay roughly $800 in base filing fees plus potentially another $750 or $1500 depending on the size of the employer and the type of employer (universities and non-profit research institutions may be able to avoid the fees).  

After USCIS approves the initial applications, persons in the US (such as those on student visas) can begin work if an H-1B number is available. If an applicant is not changing their status in the US , then a US consulate abroad will process a visa application. The waiting time can be just a few days up to a few months depending on the demand for appointments at the particular consulate. Consular fees will usually run a few hundred dollars and vary depend on reciprocal agreements between the US and the applicant’s country.  

Congress is expected to take up legislation soon that would increase the number of H-1B visas available and create new exemptions from the H-1B cap that could make this a more user-friendly category in the future.  

 

Treaty Visas  

Another popular visa strategy for hiring a foreign lawyer is to apply based on a treaty between the US and the lawyer’s home country.  

Canadian and Mexican lawyers can apply for TN visas based on the North American Free Trade Agreement (NAFTA). There are few restrictions except that a lawyer must be licensed either in the US or in the home country and the lawyer needs an employer sponsor in the US . There is no limit on the number of TNs that can be issued in a year and an applicant can apply for issuance of the TN classification on the spot at a US port of entry (usually at an airport or a land crossing).  

As noted above, Australian lawyers can apply for E-3 visas. The requirements for the E-3 are essentially the same as for the H-1B visa including possessing a license or showing that all requirements for licensure have been met except for providing a visa. 10,000 E-3 visas are available each year. However, this supply has so far exceeded demand by a wide margin.  

While Australians can pursue H-1Bs and other categories, there are a couple of key benefits that make the E-3 attractive (aside from its general availability when the H-1B cap is filled). First, E-3s can be filed directly at a US consulate. This means that expensive USCIS filing fees applicable to H-1Bs are not collected. It also means that a visa can be secured in a matter of days as opposed to several months. Another key benefit of the E-3 is that spouses can obtain a card granting permission to work for any employer as long as the attorney spouse remains in E-3 status.  

Nationals of Singapore and Chile were recently granted a special H-1B visa category of their own with an annual allocation of over 5,000 visas.  

And national of more than 50 countries are eligible for E-1 and E-2 visas. E-1 treaty trader visas are available to people from a country with a commercial trade treaty with the US who are engaged in trade between the US and the treaty country. Trade in services, such as legal services, is a permitted form of trade under the E-1 category. The employer must be majority-owned by nationals of the treaty country (and green card holders or dual citizens in the US don’t count). This then means that the E-1 is basically only available to foreign law firms with offices in the US or instances where a lawyer has her own practice and is contracting services out to other firms. The E-1 also requires a substantial volume of trade between the US and the treaty country. This might not be a problem for a US branch office of a foreign law firm as long as it can demonstrate that the majority of the work involves matters involving the treaty country.   

E-2 treaty investor visas are used much more frequently and are based on the making of a substantial investment in a commercial enterprise in the US . Like the E-1, the majority of the ownership has to be in the hands of nationals of the treaty company. E-2 status is tied to the size of the investment. US immigration rules do not specify a dollar amount to qualify for the E-2, though if a foreign firm can demonstrate it has a business plan and can document adequate capital to run the office, this often will satisfy a consular officer.  

The E-1 and E-2 are available to executives, managers and essential skills employees. This would normally include partners and attorneys with supervisory responsibilities. It would also include associates who have skill sets difficult to find in a local market. Like the E-3 visa, one can apply for the E-1 and E-2 directly at a consulate. However, some consulates can take many months to schedule an appointment. London , for example is backed up eight months. One advantage that is the same as the E-3 is the availability of work authorization for a spouse.  

 

Transfer cases  

Law firms transferring in attorneys from an overseas office can take advantage of the L-1 intra-company transfer visa. There are several key requirements for L-1 visas:  

-          the attorney must have been employed abroad by the firm for a year

-          the US office and the foreign office have a qualifying relationship. If the US office is a branch office, subsidiary, parent or has common ownership, then it likely will qualify; offices that are merely part of an alliance likely will not.

-          the attorney must be coming in an executive, managerial or specialized knowledge capacity

-          firm’s establishing a new office in the US will need to demonstrate it has sufficient business plans and capitalization to show it is financially viable and can afford to pay the transferee.  

To meet the executive, managerial or specialized knowledge requirement, the firm will want to show that the attorney will be managing paralegals and, if applicable, other attorneys. Attorneys who manage a “function” can also qualify even if no personnel are being managed. Attorney with unusual specialties and skill sets can also qualify as specialized knowledge employees if the firm can show that it would be impractical to find someone in the local market with a similar expertise.  

To meet the requirement for a qualifying relationship, traditional branch offices are normally fine as are typical law firm partnerships and corporate structures where each office is owned 100% by the partnership or the corporation. Problems may arise, however, if the US and the foreign office operate under the same name but have different ownership structures. If one owner controls 50% or more of both offices, then there will be no problem as the offices will be considered affiliates. If no party has a controlling interest and the ownership breakdown of each office is not the same, there could be a problem.  A joint venture between two firms may qualify despite the fact that the foreign firm does not have a controlling interest in the US branch as long as the foreign entity transferring the attorney has a 50% interest. Many firms have offices that operate under the same name, but are independently owned and merely part of an alliance. These types of relationships will also not qualify.  

L-1A visas are available to managers and executives and can be obtained for up to seven years. L-1Bs are available to specialized knowledge employees and can be obtained for up to five years. Employees of new offices will be approved for an initial period of a year and then can be extended.  

L-2 spouses are permitted to seek independent employment authorization after entering the US . Two to three months are normally needed to acquire an employment card.  

 

Trainee Categories  

The J-1 exchange visitor trainee category allows those coming for training in public administration and law to come to the US for up to 18 months. An employer can work through an approved J-1 exchange program which is charged with making sure that the employer provides genuine and proper training.  

An employer sponsor will need to provide a training program that describes the training objectives, the skills the trainee attorney will acquire or be exposed to through the training program and justify the use of on-the-job training. The sponsor must also provide details on the stipend to be paid to the trainee and an estimate of living costs in the US .  

The H-3 trainee category is also available, but for attorneys is almost never the best category since productive employment is not permitted. The J-1, in contrast, allows the training to be conducted in the setting of productive employment. A J-1 also does not need to show that the training is unavailable in the home country.  

The J-1 may also be the visa of choice for attorneys who are not able to or interested in acquiring a state law license. J-1s can be used by those in law clerk or paralegal positions as well as foreign legal specialist positions.  

Like the E and L categories, J-2 spouses are permitted to seek employment authorization after entering the US in J-2 status.  

Foreign students on F-1 student visas are entitled to a one year work authorization period called “optional practical training” upon conclusion of their studies. Given the large number of LLM students at US law schools, this can be useful especially given the scarcity of H-1B visas. The OP T can often allow for the lawyer to work legally while waiting on an H-1B visa number to become available or until work authorization tied to permanent residency comes through.  

 

Visitors  

Sometimes going through the complicated application process to obtain a work visa may not be necessary and an attorney can enter as a B-1 business visitor.  

B-1 visitors must meet the following basic tests:  

•          Have a residence in a foreign country, which they do not intend to abandon;

•          Intend to enter the United States for a period of specifically limited duration; and

•          Seek admission for the sole purpose of engaging in legitimate activities relating to business.  

There are a number of legitimate activities in which lawyers typically engage that are specifically permitted by the State Department’s Foreign Affairs Manual:  

1. Participating in seminars, conventions and conferences
2. Consulting with business associates or clients
3. Assisting clients negotiating contracts
4. Engaging in independent research
5. Board of directors and partnership meetings and related activities
6. Assisting investor clients in scoping out investment opportunities and engaging in startup activities
7. Attending trade shows  

A key to B-1 cases is that the applicant has specific and realistic plans for the entire period of the contemplated visit. The absolute length of the stay is not as important as showing that the stay has some finite limit. But the total authorized stay on each entry is limited to 180 days (with extensions permitted).  

The B-1 applicant must also be prepared to demonstrate permanent employment, meaningful business or financial connections, close family ties, or social or cultural associations, which will indicate a strong inducement to return to the country of origin. And the applicant should show a salary from abroad and adequate resources to demonstrate that there is no need to work illegally in the US .  

Applicants from 27 countries that have no problems with visa overstays can qualify in the Visa Waiver Program which allows applicants to enter the US for up to 90 days without obtaining a visa stamp. The 27 current countries are Andorra , Australia , Austria , Belgium , Brunei , Denmark , Finland , France , Germany , Iceland , Ireland , Italy , Japan , Liechtenstein , Luxembourg , Monaco , New Zealand , the Netherlands , Norway , Portugal , San Marino , Singapore , Slovenia , Spain , Sweden , Switzerland , and the United Kingdom . Note that extensions of stay for Visa Waiver entrants are not permitted.  

Finally, when an attorney is being paid by a foreign entity but coming to the US to perform activities similar to an H-1B or an H-3 worker, the B-1 may be used in lieu of the H-1B or H-3. But note that many consulates. In order for an employer to be considered a “foreign firm” the entity must have an office abroad and its payroll must be disbursed abroad. To qualify for a B-1 visa, the employee must customarily be employed by the foreign firm, the employing entity must pay the employee’s salary, and the source of the employee’s salary must be abroad. Note that many consulates are reluctant to issue B-1s in lieu of Hs and the firm should do research on the attitude of a consulate before pursuing this type of visa.  

 

O-1 Extraordinary Ability Applicants  

Attorneys who can demonstrate that they have extraordinary ability in their field of business can potentially qualify for O-1 visas. Applicants need to show that they have reached the top of their field either in the US , internationally or in the applicant’s home country.  

O-1s need to show a single one time accomplishment demonstrating extraordinary ability or evidence showing a combination of at least three of the following:  

- receipt of nationally or internationally recognized prizes or awards for excellence in the attorney’s field;

- documentation of the attorney’s membership in associations in the field which require outstanding achievements of their members, as judged by recognized national or international experts;

- published material in professional publications or major media or major media about the lawyer;

- evidence of the attorney’s participation on a panel, or individually, as a judge of the work of others in the field;

- evidence of the lawyer’s original contributions of major significance in the field;

- evidence of the attorney’s authorship of scholarly articles in professional journals or other major media;

- evidence that the attorney has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation;

- evidence that the lawyer has commanded and now commands a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.  

O-1s are available for up to three years at a time and require a consultation letter from a peer group stating. For lawyers, this might include a local, state or national bar organization. The letter is essentially a statement indicating the group has no objection to the granting of the visa.  

 

Permanent residency  

Labor certifications  

When a non-immigrant work visa is either not available or will not allow an employer to bring over an attorney for as long as needed, applying for permanent residency may be an option worth considering. Attorneys will normally qualify for permanent residendy in the EB-2 green card category reserved for those with advance degrees (a bachelors degree or higher).  

Visas in the EB-2 category usually do not run out, though per country limits are currently causing delays for a few nationalities (including India and China ).

The key challenge for attorneys seeking permanent residency, however, is successfully navigating the labor certification process required for most applicants. A labor certification is a process where an employer goes through a recruitment process to demonstrate the lack of availability of qualified American job candidates immediately able to do the work. Employers must carefully define a job to make it clear what skill set is required for the position lest the rejection of a candidate not genuinely suitable for the position cause an application for a labor certification to be denied. Of course, rejecting a candidate with the necessary education and experience but lacking the “pedigree” suitable for a specific firm is not permissible in the labor certification process.  

Like the H-1B category, an employer must demonstrate it is paying the prevailing wage and has the ability to pay the offered salary.  

 

Multinational executives and managers  

The EB-1 green card category has requirements very similar to the L-1 non-immigrant category except that specialized knowledge employees are not covered and a US office must be operational for at least one year. This will normally be the green card option of choice for those qualifying in multiple categories.  

 

Extraordinary Ability  

EB-1 green cards are available to those with extraordinary ability in business, athletics, the arts, education and science. The EB-1 is almost identical in its requirements to the O-1 category described above. EB-1 cases, however, do not require a peer group consultation.  

 

National Interest Waiver  

If a lawyer can demonstrate that his or her work provides a substantial benefit to the public,  a green card may be possible in the EB-2 green card category. This category is rarely used by lawyers, though if one can, for example, demonstrate they are playing a critical role in economic development in the US or perhaps are playing are providing legal services of a public service nature. But USCIS often applies a very high standard in this category and will frequently want the applicant to demonstrate the benefits will be national in scope as opposed to local.  

 

Conclusion  

While the number of attorneys immigrating to the US has been relatively modest to date, that will certainly change in the years to come as the demand for the services of highly qualified attorneys will increase and the supply of attorneys will likely remain flat. With careful immigration planning, US and foreign law firms should be able to recruit legal talent globally.

 

 

Filed under: Immigratoin Reform, Laws, Legal Development, Nepalese Students, Young Lawyers, कानून नेपाल

Applying for OPT

Optional Practical Training (OPT) is temporary employment for practical training directly related to the student’s major area of study. Work done for OPT must be “directly related to the student’s area of study and commensurate with the student’s educational level.”

You are allowed one year of OPT per higher degree level of study (i.e. one per Bachelor’s, one per Master’s, one per PhD). You can apply for OPT beginning 120 days before completion of studies, and as late as your completion date; you do not need a job in order to apply.

Filed under: Immigratoin Reform, Nepalese Students, कानून नेपाल

Career Guide for Nepalese Students in the US

Graduating in May

·          If you graduate in May, you will be able to work in OPT from June 2008 to June 2009 for one year, if you apply for OPT with these dates.

·          The International Student Advisor will help you on this.

Issues:

o         You should have an employer file for your H-1B in April, 2008 so that you can start working from October 2008 on OPT.

o         One may also wish to extend the graduation until August as  you will enjoy the 60 day grace period after the OPT ends, thereby enabling you to work on H-1B starting October 2009.

o         However, if you do have a H-1B filing employer for April 2008, August graduation issue does not affect you.

 

Do not work in cash and do not use your SSN to work illegally.

·          Try applying for any suitable jobs you can find in your field of study.

·          Try www.craigslist.org which is really affective.

·          Do not give up.

·          Apply for at least 100 jobs from now.

·          Let’s say you get 10 interviews, I am sure there will be one who is really interested in you.

·          After all this is a land of opportunities and I humbly believe that notion.

 

Employment Eligibility?

·          The first question an employer may ask you is, if you are eligible to work or do you have a work permit?

·          Say Yes !

·          Here’s How:

o         Say Yes !

o         Tell them that you are an international student and you are allowed to work part time i.e. 20 hrs to 37.5 hrs per week under Curricular Practical Training Program from your school.

o         Talk to your school advisor about it.

o         The school will need an Offer Letter from the prospective employer, which should state the job title, duties, salary, hours to work and the period of employment.

o         Once you are successful in getting an offer letter from the employer, give it to your school and they will issue you a  new I-20 with the employment permit on the 3rd page of I-20.

o         This is your valid-legal work permit.

o         You are allowed to work for no more than 12 months. CPT will help you bridge the gap for OPT and H-1B.

o         However, If you exceed these 12 months, your OPT option will be cancelled.

o         A clever way to do CPT and OPT both is to have CPT for 11 months and OPT for the following 12 months.

o         You can work Full-time on OPT.

 

Here’s the equation of a Possible Career:

• Interviewed and offer letter received October 29, 2007.
• School issues revised I-20 with work authorization for the period of November 01, 2007 to May 31, 2008.
• OPT applied with USCIS on February 01, 2007 for period of June 01, 2008 till May 31, 2009.
• The same employer files your H-1B on April 01, 2008, gets approved in June 15, 2008 or later and you start working from October 01, 2008 on H-1B.
• The employer finds you PERFECT and files for your Labor Certification in February 01, 2009, gets approved in June 01, 2009 and then files for I-140 and Green card on July 01, 2009.
• You become a Permanent Resident once your processing date becomes current (0-3 years at current rate) depending on the employment category of Bachelors or Masters Degree.
• After 5 years, you become a citizen!!!

 

Feels Good?

And, hey DO NOT FORGET to file EDV Lottery which closes on November 03, 2007. Remember, EDV Lottery is a privilege for selected number of nations only!

Good Luck!

Filed under: Nepalese Students, कानून नेपाल