BUSINESS IMMIGRATION ETHICS

Transcription

1 BUSINESS IMMIGRATION ETHICS MARGARET D. STOCK, Anchorage, AK Cascadia Cross Border Law Group JAMES D. PRAPPAS, Houston Jackson Walker State Bar of Texas 12 TH ANNUAL ADVANCED IMMIGRATION LAW February 4-5, 2014 Houston CHAPTER 16

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3 James D. Prappas - Biography Page 1 of 3 James D. Prappas - Partner Immigration, International, Labor and Employment, Energy Education A.B., with honors, Davidson College (NC) J.D., University of Houston Law Center Mr. Prappas also attended the MSc economics degree course at the London School of Economics and Political Science. Court Admissions 1986, Texas ( Immigration and Nationality Law ). James D. Prappas has over 25 years experience representing Fortune 500, middle market and emerging companies in U.S. immigration matters and transactions. He has a broad practice in a diverse range of immigration matters and has advised clients on strategic immigration planning and related transactional matters. Mr. Prappas has extensive experience in nonimmigrant visas including the international transfer of key personnel and treaty trader/treaty investors, employment based immigrant visas, family immigration, I-9 matters, naturalization and derivative citizenship. Prior to joining Jackson Walker, Mr. Prappas' career included over 10 years in private practice where he represented domestic and international businesses concerning business, corporate and immigration law. Languages Fluent in English, Spanish, and Greek Memberships Mr. Prappas is a member of American Bar Association, State Bar of Texas, Houston Bar Association and the American Immigration Lawyers Association. Community Involvement Mr. Prappas serves as a member of the Board of Directors of the British-American Business Council Houston, Netherlands America Chamber of Commerce - Texas Chapter, and The Parish School as well as a member of the Advisory Board of Directors of the Mexican Institute of Greater Houston. He also is an active member in GlobalScot. Previously he served as a Board Member of the Houston Grampian Association, the Hispanic Chamber of Commerce, the Houston InterAmerican Chamber of Commerce, and the Texas - Israel Chamber of Commerce. He also has served as a volunteer with the Texas Accountants and Lawyers for the Arts and as honorary legal counsel to the Consulate General of Mexico in Houston. Awards Mr. Prappas is included in the editions of The Best Lawyers in America under Immigration Law McKinney Street, Suite 1900 Houston, TX T: F: jprappas@jw.com

4 James D. Prappas - Biography Page 2 of 3 Publications & Speaking Engagements Selective Overview of U.S. Immigration Law Issues U.S. Immigration Law Fleeing the Mexican Drug War: Foreign Investors' Immigration Issues Artists And Athletes - O And P Visas: A New Memo and a New Era of Adjudications Best Practices in the New Era of Immigration Worksite Enforcement - PDF Maneras de Obtener la Residencia Permanente en los EEUU Help! The Play Date is Booked - What about a Visa? The Merry Confusions of U.S. Immigration Law Primer on Doing Business in Texas Worksite Enforcement Update - ICE Launches Initiative to Audit Hiring Records - DOL to Increase Wage and Hour Enforcement Is This the Right Time to Enter the U.S. Market New I-9 Form Required April 3, 2009 L-1 Intracompany Transfers: Opportunities for Creative Lawyering Employment Based Immigration DV 2010 Diversity Visa Lottery U.S. Immigration, International Tax and Estate Planning Employment Based Immigration Employers Are Required to Use New I-9 45 Day Extension of the I-9 Documentation Requirement for Employers Hiring Victims of Hurricane Katrina Employer's Update - Winter 2005 Mexico e-alert--mexican Trucks Can Roll into USA - Says USA Supreme Court USCIS Announces Increase In Immigration Fees Effective April 30, 2004 Case Study - Setting Up a United States Company Case Study - Setting Up a United States Company PowerPoint Immigration Insider - Winter 2004 DV 2005 Diversity Visa Lottery Immigration Insider - Fall 2003 DHS Publishes Final Rules Requiring Certificates For Certain Health Care Workers 1401 McKinney Street, Suite 1900 Houston, TX T: F: jprappas@jw.com

5 James D. Prappas - Biography Page 3 of 3 News James Prappas Speaks on U.S. Immigration Law Jackson Walker Congratulates Its Best Lawyers in America 2013 Jackson Walker Congratulates Its Best Lawyers in America James Prappas and John Stephenson Speak at Invest in the USA Program James Prappas Speaks on Foreign Investor Immigration Issues Willie Hornberger and James Prappas Speak at Mexican Bar Association Program James Prappas Speaks on Visas for Athletes and Entertainers James Prappas Speaks at Immigration and Nationality Act Seminar James Prappas Speaks at Invest in Texas Seminar Jackson Walker Congratulates Its Best Lawyers in America James Prappas and John Stephenson Speak on International Aspects of Doing Business in Texas James Prappas Speaks on Commercial, Immigration, and IP Legal Considerations James Prappas Speaks on Business Immigration 1401 McKinney Street, Suite 1900 Houston, TX T: F: jprappas@jw.com

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7 MARGARET D. STOCK Cascadia Cross Border Law Group, LLC 4141 B Street, Suite 205 Anchorage, Alaska Phone: (907) mstock@americanlaw.com BIOGRAPHICAL INFORMATION EDUCATION A.B. in Government with Honors, Harvard and Radcliffe Colleges J.D. with Honors, Harvard Law School M.P.A., Harvard Kennedy School of Government Master of Strategic Studies, U.S. Army War College PROFESSIONAL ACTIVITIES Fellow, American Bar Foundation, 2005-present Co-Chair of Alaska Fellows of the American Bar Foundation, 2011-present Member, Council on Foreign Relations Immigration Policy Task Force, American Bar Association Commission on Immigration, PUBLICATIONS, ACADEMIC APPOINTMENTS & HONORS Associate Professor, United States Military Academy, Author of Immigration Law & the Military (American Immigration Lawyers Association 2012) Co-author of Professionals: A Matter of Degree (AILA, 5 th edition) (with Martin Lawler) MacArthur Foundation Fellow 2013 Immigration Law Professor of the Year 2013 Alaska SuperLawyer 2013 Michael Maggio Pro Bono Award, American Immigration Lawyers Association, 2008 Advocacy Award, American Immigration Lawyers Association, 2005 Military Awards include the Legion of Merit, Joint Service Commendation Medal, Meritorious Service Medal, Army Commendation Medal, and the Military Outstanding Volunteer Service Medal, among others

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9 Business Immigration Ethics Chapter 16 TABLE OF CONTENTS POWERPOINT PRESENTATION Business Immigration Ethics i

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11 Business Immigration Ethics Chapter 16 Sources of Ethics Rules >8 CFR BIA, Immi?ration Courts and DHS >State Bar Rules In Texas this is the Texas Disciplinary Rules of Professional Conduct Issues >Who is the client(s)? >Which rules apply? It depends on who files the grievance. :What are the attorney's ethical obligations? >What is the "public interest" > Practical Considerations Hypo 1 Consular Processing Misrepresentation of a Material Fact. Facts Employer has valid E-2 registration. Alien has E-2 interview scheduled. Attorney ascertains from employer's U.S. manager that alien has been working in the U.S. without employment authorization and intentionally misrepresented information on DS-160 Question -- Have you ever been unlawfully present, overstayed the time granted by an immigration official or otherwise violated the terms of a U.S. visa? Answer The alien answered no 1

12 Business Immigration Ethics Chapter 16 8 CFR General Provisions. (a),-1:. / An adjudicatin g : Board of Immi, i ppeals (the Board) m., :iny practitioner if it finds it to be in the puhic ipk.i do It will be in the public interest to impose iii.ciplinariv sanctions agmmit a practitioner who is author i/c.lto mactice before the Board and the Immigration Courts, hen such person ha, engaged in criminal, unethical, or unprofessional conduct, or in fn., olous behavior, as set forth in In accordance %kith the disciplinary proceedings set forth in this subpart and outlined below, an adjudicating official or the Board may impose any of the following disciplinary sanctions: General Provisions (cont.) (I) Disbarment which is permanent, from practice before the Board and the ImmigrationCourts or the DHS, or before all three authorities; (2) Suspension including immediate suspension, from practice beforethe Board and the Immigration Courts or the DHS, or before all three authorities: (3) Public or private censure: or (4) Such other disciplinary sanctions asthe adjudicatingofficial or the Board deems appropriate Grounds It is deemed to be in the public interest for an adjudicating official or the Board to impose disciplinary sanctions against any practitioner who falls within one or more of the categories enumerated in this section, but these categories do not constitute the exclusive grounds for which disciplinary sanctions may he imposed in the public interest. Nothing in this regulation should be read to denigrate the practitioner's duty to represent zealously his or her client within the bounds of the law. A practitioner who falls within one of the following categories shall be subject to disciplinary sanctions in the public interest if he or she 2

13 Business Immigration Ethics Chapter Grounds (cont.) (c) Knowi h reckless disregard makes a false statement of miter :1 or law, or willfully misleads, misinforms, thteate:o or Ja:;rres any person (including a party to a case or an employee of the Department of Justied), concerning any m:nerial.:nd relevant matter relating :o including knoss.n.as or sa nn reckless disregard of&ina fake evidence. If a praclinoner has offered material evidence and comes to know of its falsity, the practitioner shall take appropriate remedial measures; Grounds (cont.) (f) Knowingly or with reckless disregard makes a false or misleading communication about his or her qualifications or services. A communication is false or misleading if it: ( I) Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading, or, 12) Contains an assertion about the practitioner or his or her qualifications or services that cannot be substantiated. A practitioner shall not stale or imply that he or she has been recognized or certified as a specialist in immigration and/or nationality' law unless such certification is granted by the appropriate state regulatory authority or by an organization that has been approved by the appropriate state regulatory authority to grant such certification; Grounds (cont.) to) Fails to provide competent representation to a client, Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners;

14 Business Immigration Ethics Chapter 16 Texas Disciplinary Rules of Professional Conduct Rule 3.03 Candor Toward the Tribunal nake a figs, of material fact or law to a tribunal; (2) fail to disclose a fact to a tribunal when disclosure is necessary to avei,i assism. aviiminal or fraudulent acti, (3) in an parte proceeding, fad to disclose to the tribunal an unprivilegiiii fact which the lawyer reasonably believes should be known by that entity for it to make an informed decision; (4) fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (5) offer or use evidence that the lawyer knows to be false. Texas Disciplinary Rules of Professional Conduct Rule 3.03 Candor Toward the Tribunal (cont.) (b) If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall make a good faith effort to persuade the client to authorize the lawyer to correct or withdraw the false evidence. If such efforts are unsuccessful, the lawyer shall take reasonable remedial measures, including disclosure of the true facts. (c) The duties stated in paragraphs (a) and (b) continue until remedial legal measures are no longer reasonably possible. Hypo 2 Consular Processing Misrepresentation of a Material Fact Attending School of B-2 Visa Facts Principal and family In U S. on B Children attending public school. Attorney files nonimmigrant petition with USCIS and petition approved After the petition is approved, attorney ascertains from principal the principal's children have attended public school in Texas. DS-I 60 questions Have you ever sought to obtain or assist others to obtain a visa. entry in to the U.S, or any other U S. immigration benefit by fraud or willful misrepresentation or other unlawful means', DS-ISO questions a Have you ever unlawfully present, overstayed the time granted by an Immigration offi. i i or otherwise violated the terms of a U.S FAQ issued by the Texas Education - I Can a foreign student,ttend school in Texas when he enters the....nab, wan a tourist virs' A :l.r.. n student cannot attend Texas public on a full-time basis a tou...4 visa as this would he in violation of P 4 tier visa status. However, the district cannot deny the student enrollment on the basis of hisib, The student only has to demonstrate eligibility to enroll under a pro, TEC of 4

15 Business Immigration Ethics Chapter 16 Issues Who is the client(s)? What are the attorney's ethical obligations? Hypo 3 Requirement to Withdraw H-1 B Petition and LCA Facts Petitioner files H-111 petition which USCIS approves. Alien subsequently ports from old employer to new employer Petitioner terminates alien. H-18 regulations at 8 CFR (H) 11(i)(A) ( I 1) Revocation of approval of petition (i) General. (A) The petitioner shall immediately notify the Service of any changes in the terms and conditions of employment of a beneficiary which may affect eligibility under section 101(a)(15)(H) of the Act and paragraph (h) of this section. An amended petition on Form should be filed when the petitioner continues to employ the beneficiary If the petitioner no longer employs the beneficiary, the petitioner shall send a letter explaining the change(s) to the director who approved the petition. hypo 3 Requirement to Withdraw -1B Petition and LCA Facts (Cont.) Liability back wages ceases when the employee is terminated. However, an employee may not be considered properly terminated for purposes of cutting off back pay and front pay unless the employer follows 20 CFR (0(7)0H and (I) notifies the employee; (2) notifies the USCIS that the employment relationship has terminated so that the petition is cancelled; and (3) provides the employee with payment for transportation home pursuant to 8 CFR (h)F4Xiii) 5

16 Business Immigration Ethics Chapter 16 Issues Who is the client(s)? What are the attorney's ethical obligations? tivpo 9 EB-5 Case Facts Investor locates existing Texas business to purchase for EB-5 purposes. Business has only two employees on the books, but a large number of 1099 contractors. Contractors do not meet IRS rules for 1099 contractors: they should be employees under IRS rules, but current owner does not want to pay taxes, benefits EB-5 plan is to purchase business for $1 million and convert 10 (or more) of the 1099 contractors to employees, thereby meeting the EB-5 "job creation" requirement. Issues Who is the client(s)? What are the attorney's ethical obligations? 6

17 Business Immigration Ethics Chapter 16 Hypo 5.Man in the Middle Fraud Facts Prospective client calls attorney and tvt-tt to E-2 or EB-5 visa. Anxious to hire attorney and ac. rn, for list of documents to get to qualify for the %EL Sends very lame retainer in the form of cashier's chect. Hi; '56., ;6 (much larger than the retainer requested by the attorney). Attorney deposits the check, resulting in a large balance appearing in the attorney's trust account. Shortly thereafter, the client calls and cancels the deal. Client says "keep your fee," but directs the attorney to wire some or all of the funds to an overseas account. Issues Who is the client(s)? What are the attorney's ethical obligations? Practice Pointers Be prepared, do your homework and read the law and regulations. 2. Have a written engagement letter and review this periodically. 3 Read the USCIS rules and the state bar rules. 4 Join AILA and find someone to bounce ideas oft concerning ethical issues. 5 Everyone makes mistakes and develop a process to deal with ethical issues. 6 Bea zealous advocate for your professional inte 7 Communicate in writinu with your clients. 7

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