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Ali v. Mukasey

September 8, 2008


Petition for Review of an Order of the Board of Immigration Appeals. No. A78-857-590.

The opinion of the court was delivered by: Williams, Circuit Judge.


Before MANION, ROVNER, and WILLIAMS, Circuit Judges.

Meer Shahid Ali entered the United States on a valid work visa that authorized him to work for a consulting company. According to an agent for the then-Immigration and Naturalization Service, Ali admitted to working for a second company beginning in March 2002. That was three months before the second company filed a petition on his behalf, a filing that the government agrees would have allowed him to work there lawfully. We conclude that the immigration judge was justified in finding that Ali was deportable for beginning to work for the second company before he could lawfully do so and that a reference to March "2000" on a form completed by the agent was a typographical error. We cannot review Ali's claim that the same agent should not have both arrested and examined him because Ali failed to exhaust his administrative remedies for this claim. Therefore, we deny the petition for review.


Ali, a native of India, came to the United States in July 2000 on an H-1B visa. This visa allowed him to work for the Everest Consulting Group until May 15, 2002, and the authorization to work at Everest was later extended through January 15, 2003.

On June 27, 2002, another company, Newton Food Mart, also known as T & L Foods, filed an H-1B petition on Ali's behalf. About two months later, on August 20, 2002, while the T & L petition was still pending, the Immigration and Naturalization Service executed a federal search warrant at T & L Foods, and Ali was there. Special Agent Timothy O'Sullivan interviewed Ali and completed a Form I-213 ("Record of Deportable/Inadmissible Alien"). Among the typewritten notes on the form that Special Agent O'Sullivan signed are: "The subject claimed he had been working for T & L Foods for 40 hours a week since March 2002" and "On or about March 2000, the subject began employment at T & L Foods and has been so employed since that time therein in violation of his admittance."

The government subsequently instituted deportation proceedings against Ali. Crediting Special Agent O'Sullivan's testimony, an immigration judge found Ali deportable for working at T & L Foods before he was legally entitled to do so. The Bureau of Immigration Appeals affirmed, and Ali filed a petition for review with our court.


A. Compliance with H-1B Visa Requirements

Ali maintains that substantial evidence does not sup-port the BIA's conclusion that he violated the conditions of his H1-B visa. The "H1-B" visa program takes its name from 8 U.S.C. § 1101(a)(15)(H)(i)(b), which sets forth eligibility requirements for "specialty occupation" visas like the one Ali received. See also 8 C.F.R. § 214.2(h)(ii)(B) (describing H-1B classification); Siam Corp. v. Chertoff, 484 F.3d 139, 144-45 (1st Cir. 2007) (discussing H-1B specialty occupation visas); Royal United States v. Ramirez, 420 F.3d 134, 137 (2d Cir. 2005) (same); Venkatraman v. REI Systems, Inc., 417 F.3d 418, 422 (4th Cir. 2005) (same). A "specialty occupation" generally means one that requires "(A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States." 8 U.S.C. § 1184(i)(1).

The H-1B visa comes with certain conditions. As relevant here, an alien admitted pursuant to an H-1B nonimmigrant visa may generally be employed "only by the petitioner through whom the status was obtained."

8 C.F.R. § 274a.12(b)(9). An alien holding an H-1B visa may, however, begin working for a different employer "upon the filing by the prospective employer of a new petition on behalf of such [alien]," 8 U.S.C. § 1184(n)(1), so long as the alien was lawfully admitted, the employer timely filed a non-frivolous petition, and the alien had not engaged in unauthorized work before the petition's filing, 8 U.S.C. § 1184(n)(2). If those conditions are met, employment authorization continues under the initial visa until the new petition is adjudicated. See 8 U.S.C. § 1184(n)(1).

In this case, the government maintains that although Ali could have lawfully begun working for T & L Foods on June 27, 2002, the date when that company filed a new petition on Ali's behalf, Ali was deportable because he admitted to working for T & L before it had submitted its petition. The law is clear that "an alien who was admitted as a nonimmigrant and who has failed to maintain the nonimmigrant status in which the alien was admitted . . . or to comply with the conditions of such status, is deportable." 8 U.S.C. ยง ...

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