The Legal Intelligencer Blog

Fresh Ink: Inside Today's Legal

Welcome to your Wednesday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

Today’s top story is a federal judge greenlighting an $11 billion whistleblower suit alleging that Pittsburgh-based Education Management Corp. defrauded the government of federal student aid. As reporter Saranac Hale Spencer writes, the suit alleges the company violated the terms of the Higher Education Act, which bars the distribution of incentives to college recruiters based on the number of students they draw.

Also above the fold on Page 1, Saranac Hale Spencer writes that a legal malpractice claim is being allowed to proceed in a wrongful firing case in which the lawyer, James E. Ellison of Rhoads & Sinon, advised the Harrisburg School District on its decision to fire three top administrators.

Below the fold on Page 1, reporter Amaris Elliott-Engel writes that medical malpractice reform, 10 years in, is being credited for a lighter caseload in Pennsylvania.

In more Regional News on Page 3, reporter Zack Needles writes that a suit against Citizens Savings Bank Inc. alleging that it cashed 86 forged checks is being allowed to proceed by a Lackawanna County judge.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

In this week’s GC Mid-Atlantic column on Page 5, Hayes Hunt and Jonathan R. Cavalier write about three key uses of social media for corporate counsel.

In an Immigration Law column on Page 7, Matthew T. Galati writes that the USCIS has implemented a new policy involving transgendered persons.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to email any of the reporters directly. We hope you'll enjoy today's Legal.

Fresh Ink: Inside Today's Legal

Welcome to your Tuesday morning round-up of stories in today’s edition of The Legal Intelligencer, which also includes this week’s edition of Pennsylvania Law Weekly. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

The top story in today’s Legal is a Berks County trial judge issuing what is believed to be the first order in Pennsylvania suppressing evidence from a Global Positioning System based on the U.S. Supreme Court’s recent ruling in United States v. Jones. As reporter Zack Needles writes, the high court barred evidence obtained through a mobile tracking device used to monitor a suspect’s vehicle in that case, because authorities failed to adhere to the terms of a search warrant. In the case of Commonwealth v. Burgos, Berks County Common Pleas Court Judge Paul M. Yatron reversed “with extreme reluctance” his prior order denying a defendant’s motion to suppress evidence.

Below the fold on Page 1, reporter Saranac Hale Spencer writes that U.S. Steel’s failure to provide a copy of a letter sent to a special master to the Equal Employment Opportunity Commission does not void the master’s recommendation, a Western District judge has ruled. The EEOC has been engaged in a lengthy dispute with the employer.

In more Regional News on Page 3, reporter Amaris Elliott-Engel writes that the state Supreme Court has rejected a new trial for a defendant on death row because a police interview that was not turned over to the defense before trial did not exculpate him.

Also on Page 3, Dan McCormick writes that noted white-collar litigator Donald J. Goldberg has died at 81.

As always, our People in the News section is on Page 2, and the top stories from our sibling publications across the country make up the Page 4 National News section.

In an Immigration Law column on Page 5, Suzanne B. Seltzer writes that a federal judge has reminded the U.S. Citizenship and Immigration Services to play by the rules.

In a Family Law column on Page 7, Michael E. Bertin writes that the Superior Court has ruled declaratory judgment in a divorce action is unappealable.

Today’s lead story in PLW is a look at the upcoming state Supreme Court oral arguments to be held in Pittsburgh this week. As reporter Ben Present writes, the case attracting the most attention is the $18.5 million verdict being appealed by Genuardi’s in a case that involves a long list of appellate lawyer heavyweights filing amicus briefs.

Below the fold on Page 1, Ben Present writes that the state Supreme Court has denied the extraordinary jurisdiction petition of an attorney who has accused a Washington County judge of tampering with the transcripts of the underlying murder trial he defended.

On Page 3, Zack Needles writes that the state Superior Court has ruled a sheriff’s sale cannot be set aside for a late bidder.

There’s much more inside this week’s PLW, including Samuel C. Stretton’s Ethics Forum, in which he discusses privileged information in joint defenses; Matthew T. Mangino’s Criminal Practice column, in which he writes that the Supreme Court has opened the door to ineffective plea-bargaining claims; the Superior Court saying that a jury may decide an injured worker’s employment status; a religious school ruled not exempt from paying unemployment compensation benefits; and David Mandelbaum’s Environmental Law column on the high court and pre-enforcement review under the Clean Water Act.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

 

Phila. Bar Association Opposes Immigration Bills

By Amaris Elliott-Engel
Of the Legal Staff

The Philadelphia Bar Association has submitted testimony opposing 14 immigration bills pending in Pennsylvania's House of Representatives' State Government Committee.

Among other proposals, the bills proposed a requirement that law enforcement officers who stop anyone "who is or should reasonably be suspected of being unlawfully present in the United States" must produce a government-issued identification card; a requirement that employers must screen applicants in a database; and a requirement that all adult applicants for public benefits must produce photo identification.

The written testimony by Philadelphia Bar Association Chancellor Rudolph Garcia argues that the bills would impair the rights of people who are citizens or lawful residents of the United States, not just illegal immigrants. The solution is to pressure the federal government to act to secure the country's borders, not to enact "a patchwork of inconsistent state laws," Garcia wrote.

"We believe the best approach to a sensible immigration policy is comprehensive regulation and enforcement at the federal level," Garcia wrote. "It is far easier to control immigration at our borders than to sift through our entire population to determine which of us are rightfully here. The latter approach is like adding salt to your food, then trying to remove it again one grain at a time. Yet that is the method proposed by the current package of legislation."

Garcia also wrote that the Philadelphia Bar Association does not condone unlawful immigration.

State Rep. Daryl D. Metcalfe, R-Butler, is the primary sponsor of the bills. Metcalfe says on his website that the legislation is modeled after Arizona legislation and would "provide our law enforcement with full authority to apprehend illegal aliens for deportation; to punish employers who knowingly hire illegal aliens; and to eliminate public benefits, welfare, education, and all other economic attractions for illegal aliens."

The full testimony is available here.

Amaris Elliott-Engel is a reporter for The Legal. She can be contacted at 215-557-2354 or aelliott-engel@alm.com. Follow her on Twitter: @AmarisTLI.

Fresh Ink: Inside Today's Legal (and DLW)

By Jaime Bochet
Of the Legal Staff

Welcome to your daily round-up of stories in today's edition of The Legal Intelligencer. Click the links below to access stories directly, or head to The Legal homepage.  (Some stories may require registration or a paid subscription.)

Just as Tuesdays always include our Pennsylvania Law Weekly section, Wednesday is the unofficial "Day of Delaware," when we roll out the fresh ink from our First State to the south. That includes the Delaware Law Weekly, available online at www.delawarelawweekly.com, as well as our newest product, the Delaware Business Court Insider, an online newsletter that definitely warrants a look.

But more about Delaware in a bit … let's get to today's Legal.

Topping the front page is a decision from the Eastern District of Pennsylvania by U.S. Courthouse Correspondent Shannon P. Duffy: In a pair of hefty opinions, a federal judge has certified class action antitrust claims against pharmaceutical giant GlaxoSmithKline, maker of the wildly popular antidepressant drug Wellbutrin XL, for allegedly using sham patent suits to delay generic versions of the drug from making their way to the market.

Also sharing top billing on the front, reporter Amaris Elliott-Engel writes that when former Philadelphia Housing Authority Chairman John F. Street said on a local news program that former PHA Executive Director Carl Greene "'lied about everything,'" Street did not defame Greene, a Philadelphia judge said earlier this month.

Below the fold, senior reporter Gina Passarella has news of Pittsburgh-based Thorp Reed opening an office in Wilmington, Del.

Today's Page 3 story is also by Amaris, who writes that a Philadelphia judge has ruled that a convicted murderer should get a new trial because one of two main witnesses against him said that he was pressured by a police detective to give false testimony as a child.

As always, our People in the News section is on Page 2. The top stories from our sister publications across the country make up the Page 4 National News section.

Today's contributed columns are "Immigration Law" by H. Ronald Klasko of Klasko Rulon Stock & Seltzer, and our weekly "GC Mid-Atlantic" page.

As we move south in our weekly coverage to Delaware, we'll stop first at the Delaware Law Weekly, where reporter Jeff Mordock has the top stories. Please note: all of our Delaware coverage is for paid subscribers, but you can register for a free 30-day trial by clicking here.

In the top slot, Jeff writes that the controversy continues at Widener University School of Law: Several law professors throughout the country have blasted Widener Law and Dean Linda J. Ammons after the school ordered a one-year suspension without pay and a psychiatric evaluation for university professor Lawrence J. Connell after a university panel cleared him of all but one of the charges levied against him by two former students. 

Jeff also reports that the Delaware Attorney General's Office filed a motion in New York Supreme Court last week seeking to enjoin the proposed $8.5 billion settlement between Bank of America and Bank of New York Mellon, which could end their legal dispute over residential mortgage securitization trusts.

Finally, we'd like you to meet (if you haven't already) the Delaware Business Court Insider. As the name suggests, this is a national product covering the latest news, analysis and cases from the Delaware Chancery Court, Bankruptcy Court and Supreme Court. The accompanying website is www.delbizcourt.com, where you can go to subscribe to this weekly newsletter. You can also follow us on Twitter at @delbizcourt.

Top stories there include:
- A ruling in Delaware Chancery Court that fact witnesses, who are prohibited from receiving compensation for their testimony, may receive payment from a party who will benefit from their testimony, if they perform other services in relation to the case.

- A ruling from Chancellor Leo E. Strine Jr. that a member of an existing Delaware limited liability company can assign its entire interest, including voting rights, to another member and that the member who acquired the shares does not need to be readmitted with each additional interest it acquires, even if the LLC agreement requires consent of all the members upon the admission of a new member. 

- Vice Chancellor Donald F. Parsons Jr. set a late November trial date to decide a request by an affiliate of Starr International to inspect China MediaExpress Holdings' books and records under Section 220 of the Delaware General Corporation Law.

Have questions or comments about any of today's stories, or our coverage as a whole? E-mail me or any of the reporters directly. We hope you'll enjoy today's Legal and our Delaware coverage!

Jaime Bochet is the Magazines & Supplements Editor for The Legal. Follow her on Twitter at @JaimeBochetTLI or e-mail JBochet@alm.com.

Illegal Aliens’ Eligibility for Workers’ Comp Benefits Still Under Debate

In my last post, I discussed the issue of whether illegal aliens are eligible for unemployment benefits as a general rule. A related yet equally significant issue pertains to whether illegal aliens are similarly eligible for workers’ compensation benefits. At present, there is no cut and dry answer to this question. On one side of the argument are those who say that illegal aliens are not “lawful” employees because they should not have been able to secure employment in the first place and are therefore ineligible to receive workers’ compensation benefits. On the other side of the argument are those individuals who say that illegal aliens, despite the fact that they do not have a valid visa that allows them to lawfully work in the United States, are still entitled to workers’ compensation benefits because disallowing workers’ compensation benefits to illegal aliens would provide incentives to employers to continue to hire illegal aliens and thereby avoid future liability.

Across the country, the law on this issue varies. However, there appears to be a trend among several states toward affording illegal aliens workers’ compensation benefits even though these individuals technically do not have a valid visa that allows them to work legally in the United States. In Pennsylvania for instance, the Commonwealth Court applied the Immigration Reform & Control Act of 1986 to the Pennsylvania Workers’ Compensation Act. In Reinforced Earth Co. v. WCAB, the court held that an illegal alien was not precluded from receiving workers’ compensation benefits solely because of his or her immigration status. The court further concluded that public policy would not be served by denying benefits to an illegal alien merely because of his or her immigration status. Moreover, the court held that allowing employers to deny workers’ compensation benefits to illegal aliens would provide employers with more incentive to hire illegal aliens in the future.

Similarly, in the state of New York, under Section 17 of their workers’ compensation statute, aliens are to be considered in the same light as lawful residents of the United States and should therefore be awarded workers’ compensation benefits when necessary. The awarding of workers’ compensation benefits to aliens should be consistent with the New York workers’ compensation statute awarding such benefits regardless of any question of wrongdoing of any kind. (Testa v. Sorrento Restaurant Inc.)

In the state of Virginia, however, the Supreme Court of Virginia reached a contrary result. In the case of Jose Granados v. Windson Development Corp., the court affirmed the decision of the Workers’ Compensation Commission denying benefits to claimant Jose Ismael Granados because of his illegal immigration status. Because the claimant at his hearing admitted that he had submitted false documents to his employer in order to secure employment, the Workers’ Compensation Commission denied his claim. The Supreme Court of Virginia affirmed this decision. Needless to say, this decision by the Supreme Court stirred significant public debate on the issue, leading the local Virginia Legislature to amend certain sections of its workers’ compensation statute in order to avoid this type of result in the future.

Should illegal aliens be denied workers’ compensation benefits solely because of their immigration status? Should employers be given an incentive to continue hiring illegal aliens by denying these individuals workers’ compensation benefits? It appears that some states are now moving toward awarding such benefits to illegal aliens even though they are not lawfully authorized to work in the United States. It seems that denying workers’ compensation benefits to illegal aliens would appear to be contrary to public policy. Stay tuned for more developments on this issue.

Rob C. Tonogbanua, Esq.
Dickie McCamey & Chilcote, P.C.
www.dmclaw.com

Are Illegal Aliens Eligible for Unemployment Benefits?

The answer to this question seems pretty straightforward.  Aliens who are not authorized to work in the United States are not eligible for unemployment insurance benefits, or UI, in any state.  Unfortunately, over the years, illegal aliens have been paid millions of dollars in UI benefits nationwide. The reason for this is quite simple.  Many of these illegal aliens were not identified by state Employment Security Agencies as illegal aliens who were not eligible for such benefits.

If there were merely a way to screen claimants’ Social Security numbers adequately, the SESAs would be able to quickly identify which claimants are illegal aliens and are therefore not eligible to receive UI benefits.  There is a system in place called E-Verify, which is a voluntary program in all states except Arizona.  The system is coordinated by the Department of Homeland Security and the Social Security Administration as a means of determining the validity of a person’s Social Security number (i.e., whether the actual SSN is a real number or whether the SSN matches the employee’s name or that of another person).  Many employers now use this voluntary system as a means of determining a potential employee’s eligibility to legally work in the United States.   

In a similar fashion, if the SESAs used E-Verify, or some other comparable system, as a means of determining whether a claimant who is seeking UI benefits is eligible to legally work in the United States and is therefore also eligible to receive UI benefits, then certainly the abuses of illegal aliens seeking UI benefits would be curtailed.  Millions of dollars have been erroneously paid to illegal aliens who applied for UI benefits by state agencies that were unable to verify the SSNs used by these illegals.   If a system was in place to adequately screen these claimants’ SSNs, then certainly the benefits could have been paid to unemployed workers who were truly eligible to receive such benefits because they were legally eligible to work in the United States (e.g., U.S. citizens, permanent residents, foreign workers with Employment Authorization Documents under eligible visas).  Now, for foreign workers who are legally eligible to work in the United States under non-immigrant visa categories such as the H-1B, H-2A and H-2B, the question as to whether those individuals are eligible for UI benefits is another discussion altogether (which I will reserve for another day).  For now, it is clear that illegal aliens are not eligible for UI benefits.  Unfortunately, because there is no mandatory system used by the various states to determine the validity of the claimants’ SSNs, the abuses may continue (and millions of dollars lost) unless an effective screening method is employed, in my opinion. 

Rob C. Tonogbanua, Esq.
Dickie McCamey & Chilcote, P.C.
www.dmclaw.com

Are Waivers Available to Lawful Permanent Residents With ‘Aggravated Felony’ Convictions Under the INA?

An issue of significant concern for some lawful permanent residents is the impact of a criminal conviction on their immigration status.  That is, could certain types of felonies subject those individuals to immediate removal proceedings, or is there still a waiver available to them under the Immigration and Nationality Act?  A waiver under the former Section 212(c) of the INA is available to those lawful permanent residents with “aggravated felony” convictions who pleaded guilty or who were convicted after trial prior to April 24, 1996. (INS  v. St. Cry.)  Whether a waiver is available to an individual who availed himself of the right to trial depends on the federal circuit court of appeal with jurisdiction over the court. A waiver under 212(c) is available to lawful permanent residents with convictions for crimes involving moral turpitude who pleaded or went to trial prior to April 1, 1997.

When determining eligibility for Section 212(c) relief based on a plea, the starting point is the date that the plea was agreed to by the individual.  In many criminal jurisdictions, the plea is agreed to before sentencing. Sometimes the plea is orally agreed to by the defense and the prosecution prior to going to court and putting the agreement on the record.  The significant date is the date that the plea was agreed to by the parties, not necessarily when the criminal judge accepted the plea. A complete copy of the record of conviction should be obtained to determine the exact date of the plea agreement.  In addition, to be eligible for 212(c) relief, the individual must not have been convicted and served more than five years in prison after Nov. 29, 1990.  If the individual was convicted before Nov. 29, 1990, and served more than five years after this date, he or she is still eligible for 212(c) relief.   An individual who was convicted after Nov. 29, 1990, is ineligible for 212(c) relief if he has served more than five years in prison.

Lastly, to be eligible for 212(c) relief when the individual is charged under Section 237 or the former Section 241, the charge of removability must have a statutory counterpart in section 212.   An “aggravated felony” under Section 237 may not necessarily have a statutory counterpart in Section 212.     Nevertheless an argument can be made for fitting many aggravated felonies into the definition of a crime involving moral turpitude in Section 212.   In general, in order to establish a claim under 212(c), the equities of granting the waiver need to outweigh the negative aspects of the particular case.  This needs to be done with the use of sufficient supporting documentation by an astute criminal defense or immigration attorney on behalf of the lawful permanent resident seeking the waiver under the former Section 212(c).  The facts of the particular case, including the lawful permanent resident’s prior arrest/criminal history, if any, could obviously affect his or her prospects of prevailing on the 212(c) claim.  That being said, a lawful permanent resident who is convicted of an “aggravated felony” may be subjected to removal proceedings. However, the availability of the 212(c) waiver still offers him/her some glimmer of hope.

Rob C. Tonogbanua, Esq.
Dickie McCamey & Chilcote, P.C.
www.dmclaw.com

Adjustment Status for K-2 VISA Holders: Deciphering the ‘Aging Out’ Problem

The Immigration and Nationality Act, or INA, indicates that the child of a fiancée who accompanies or follows to join his parent may enter the United States with a K-2 visa. The child is defined as an unmarried person under the age of 21.  Prior to the 1986 Immigration Marriage Fraud Amendments to the act, or IMFA, a fiancée visa holder automatically obtained legal permanent residence upon his or her marriage to a U.S. citizen.   After the IMFA was promulgated, the K-1 fiancées were given the opportunity to apply for their green cards rather than obtaining that status automatically prior to 1986.       

The issue that was not explicitly addressed by the IMFA was the issue as to whether K-2 visa holders (the children under 21 of K-1 fiancées) were able to apply for adjustment of status.   To alleviate this problem, the attorney general assisted in the enactment of federal regulations providing a basis for K-2 visa holders to adjust their status to lawful permanent residents. The former INS established that the adjustment of status of a K-2 visa holder derives from the parent’s newly acquired status as the spouse of a U.S. citizen. The issue that arose before the Immigration Service was determining whether the K-2 visa holder must have been under 21 at the time his or her adjustment of status application was decided or simply under 21 at the time the adjustment of status application was filed.

The answer to this question is extremely critical.  If the Immigration Service determines that the K-2 visa holder must be under 21 at the time his or her adjustment of status application is decided, then many K-2 visa holders could conceivably “age out.” This means that many K-2 visa holders will miss their window of opportunity to become lawful permanent residents because they will likely be over the age of 21 by the time their adjustment of status applications are fully adjudicated, especially given the backlog of such applications before the USCIS.  On the other hand, if the Immigration Service determines that the K-2 visa holder must merely be under 21 at the time his or her adjustment of status application is filed, then there will no longer be an “age out” problem. That is, so long as the adjustment of status application on behalf of the K-2 visa holder was timely filed when he or she was under the age of 21, then he or she can become a lawful permanent resident even if the adjustment of status application is fully adjudicated when the applicant is over the age of 21.

Fortunately, there is a district court case in Northern California, Verokin v. Still (2007), that held that the K-2 visa holder must merely have been 21 at the time his adjustment of status application was filed in order to be eligible to apply for adjustment of status.  In 2008 and 2009, there have been other district courts across the United States that have followed suit, thereby correcting the problems created by the local Immigration Processing Centers that erroneously denied the adjustment of status applications of K-2 visa holders because those applicants were over 21 at the time their applications were decided.  Now, it is abundantly clear:  So long as the K-2 visa holder was under 21 at the time his adjustment of status application was filed with the USCIS (and assuming all other eligibility requirements under the INA are met), then the K-2 visa holder should be granted the opportunity to become a lawful permanent resident.  This is wonderful news for many parents who previously believed that their K-2 children were in a terrible predicament.

Rob C. Tonogbanua, Esq.
Dickie McCamey & Chilcote, P.C.
www.dmclaw.com

The E-Verify System of DHS: Is It an Effective Means of Preventing the Hiring of Illegal Aliens?

The E-Verify System used to be called the Basic Pilot/Employment Eligibility Verification program.  It was originally created by Congress in 1997 as a voluntary pilot program designed to give employers a faster, electronic way of verifying an employee’s Social Security numbers.  This program, now called E-Verify, is run by the Department of Homeland Security in conjunction with the Social Security administration.  It is used today by almost 70,000 employers nationally.  It is primarily a voluntary program in all states except Arizona.

Advocates of the program say that its use by employers is a necessary step toward curtailing the hiring of undocumented workers.  Proponents also suggest that the use of the E-Verify System by employers will free employers from having to become “document” experts by allowing the employers to utilize an electronic system of determining whether an employee is legally eligible to work in the United States.  Moreover, by preventing illegal aliens from securing jobs with U.S. employers, proponents argue that the E-Verify System will allow more qualified U.S. Workers to secure much needed jobs over illegal aliens, especially in our turbulent economy.

Opponents of the E-Verify System, however, point to the system’s low accuracy rate (approximately 94 percent) and the strong possibility that qualified workers, including legal immigrants, will either not be hired into these positions or fired because the system had erroneously indicated that these employees were ineligible for employment in the United States.

Under the current program, workers who are given a “tentative non-confirmation” (meaning that there is a discrepancy with the Social Security number they have provided), have eight business days to resolve the discrepancies in the federal database.  Employers who voluntarily use the E-Verify System are not punished if they are found to unknowingly hire an undocumented worker. 

This month all federal contractors and subcontractors will have to start using the program when hiring new employees.  In addition, a recent version of the American Recovery and Reinvestment Act passed by the House of Representatives included the E-Verify mandate that all employers receiving federal stimulus money utilize the E-Verify System.  Obviously, this has stirred the debate even further between advocates and opponents of the E-Verify System.

Whether the final Stimulus Package includes the E-Verify mandate remains to be seen.  What is clear is that employers do need a fast and effective way to determine whether current or potential employees are eligible to work in the United States. The question is whether the E-Verify System operated by DHS is the means of fulfilling that goal.  Only time will tell whether this system is the answer. 

Rob C. Tonogbanua, Esq.
Dickie McCamey & Chilcote, P.C.
www.dmclaw.com

The E-2 Visa Category: A Viable Pathway for Pursuing the American Dream or a Dead End?

Nationals of countries that have treaties designed to promote trade and investment between the United States and the other countries can obtain visas to work in the United States. These visas are called E-visas.   There are two types of E visas:  E-1 Treaty Trader and the E-2 Treaty Investor.  The E-2 visa category is useful for entrepreneurs, managers and employees who need to live in the United States to oversee a major investment made by the foreign national. The treaty investor must have invested or be in the process of investing a substantial amount of capital in an enterprise that he or she will develop and direct and that will not be a marginal enterprise entered into solely to earn a living.           

Nationals of qualifying treaty countries who have made a significant investment in the United States may qualify for Treaty Investor status.  There is no set minimum level of investment that may qualify for E-2 visa status, but the lower the investment the less likely one is to qualify.  Not only must the investment be in an operating business, but a substantial part of the investment must have been made before applying for E-2 status.  Moreover, employees of qualified treaty persons or business organizations may be classified as investors if they have the treaty nationality.  However, eligibility for E-2 status on the basis of employment with a qualified person or organization requires an appropriate position. The duties must be executive or supervisory. 

On the surface, the E-2 visa category appears to be a viable pathway into the United States for entrepreneurs willing to make a substantial investment in an enterprise in the United States.  In 2006, there were 164,795 E-2 visa admissions in the United States, up from 143,786 in 2005.    There is one significant problem with the E-2 Visa category, however.   Although the holder of the E-2 visa can renew their visa every two years, this individual will never be permitted under the current USCIS guidelines to apply for lawful permanent residence here in the United States.  These visa holders cannot work outside their enterprise to supplement their income.  They cannot obtain a homestead exemption nor can they obtain permanent driver’s licenses.    If these E-2 visa holders retire or sell their businesses, they must return to their native country.    These E-2 visa holders can only apply for lawful permanent residence if they switch to a different visa category to the extent that they can do so.   

In short, although the E-2 visa category is a viable way for a foreign national to gain entry into the United States under the guise of making a significant investment in an enterprise in the United States, this visa category really does not afford the foreign national the opportunity to become a lawful permanent resident and ultimately a U.S. citizen if that is his or her goal.  Unless there is some type of immigration reform that would eventually allow the E-2 visa holder the opportunity to apply for lawful permanent residence, the E-2 visa really does not help the foreign national who holds it in the long run. 

Rob C. Tonogbanua, Esq.
Dickie McCamey & Chilcote, P.C.
www.dmclaw.com