IMMIGRATION

MEDICAL EXAMINATION REQUIREMENT FOR GREEN CARD

	Gail S. Seeram

By GAIL S. SEERAM

When a foreign national is trying to immigrate to the United States or adjust his or her status in the United States, a medical examination is required. Many foreign nationals are unclear as to the purpose and scope of the medical examination. Medical examinations are necessary to verify good health and admissibility to the United States on medical grounds.

All medical examinations include:

* Physical Examination: applicants are required to have a physical examination (to include complete disrobing), and a mental status evaluation.

* Tuberculin (TB) Skin Test: All applicants 2 years of age and older are required to have a tuberculin skin test (TST).

* Serologic (Blood) Test: All applicants 15 years of age and older are required to have serologic (blood) tests for HIV and for syphilis. Applicants under age 15 can be tested for HIV or syphilis if there is reason to suspect the possibility of infection. Civil Surgeons and Panel Physicians are required to provide pre-test counseling to all applicants who take the HIV test. If you are found to have HIV infection, the Civil Surgeon must provide you with post-test counseling.

* Vaccinations: Most applicants need to show that they are current with all vaccinations recommended by U.S. public health officials. You should have vaccinations for mumps, measles, rubella, polio, tetanus, diphtheria toxoids, pertussis, influenza type B and hepatitis B. If you are unable to submit all your vaccination records at the time of the exam, or if you have never had certain vaccines, the Civil Surgeon or Panel Physician can administer them to you. It is important to not try to fulfill your vaccination requirements before you meet with the Panel Physician or Civil Surgeon, in case it is not medically appropriate for you to have one or more of the required vaccines.

What if I am pregnant?

If you are pregnant, you are required to have a medical exam, but some parts of it may be postponed until after delivery of your baby, depending on the circumstances of your case. If you have any concerns, you should discuss them with your family doctor before the medical exam, with the Civil Surgeon, or with the Panel Physician. What if vaccinations are contrary to my religious beliefs or moral convictions?

If you have firmly held religious or moral beliefs that do not permit vaccinations, you may still be eligible for adjustment of status. You will need to apply for a waiver of vaccination requirements.

What happens after the medical exam?

After the medical exam is complete, the Panel Physician (if you are abroad) or the Civil Surgeon (if you are in the United States) will certify the results on the appropriate forms and place them in a sealed envelope. DO NOT OPEN THE SEALED ENVELOPE. Turn in your envelope with your immigration application to your attorney or the office that requested the medical examination.

Who gives the medical exam?

Medical examinations are given by licensed and experienced doctors, called Civil Surgeons (in the U.S.A.) and Panel Physicians (outside of the U.S.A.). Doctors who qualify as Civil Surgeons or Panel Physicians receive special and on-going immigration oriented medical training and policy updates. Note: A medical exam performed by a doctor NOT approved by U.S. Citizenship and Immigration Services (USCIS) will not be recognized.

Gail S. Seeram, an immigration attorney, handles cases involving family petitions, business/investors visas, citizenship, deportation, asylum, work authorization and extension of status. Call her office toll free at 1-877-GAIL-LAW (1-877-424-5529) or send an email at [email protected].

	Dilip Patel

U.S. SUPREME COURT ISSUES FAVORABLE DECISION IN DRUG POSSESSION
By GERALD P SEIPP AND DILIP PATEL, Attorneys-At-Law

On Dec. 5, 2006, the U. S. Supreme Court issued an important immigration law decision, Lopez v. Gonzales, 2006 WL 3487031 [also available free of charge on findlaw.com], which will grant new opportunities for many aliens to defend deportation from the United States.

Jose Lopez, a native of Mexico, obtained his legal residency (�Green Card�) in 1990. He was arrested in South Dakota in 1997 and pleaded guilty to cocaine possession. He served 15 months of a five-year prison sentence. While his offense was considered a felony under South Dakota law, a first offense for possessing cocaine is only a misdemeanor under federal law. An immigration judge ordered Lopez�s deportation and the Board of Immigration Appeals, a Department of Justice agency, and the Eighth Circuit Court of Appeals upheld the removal order.

The issue in the Lopez case was complex and had divided the circuit courts in trying to interpret how the federal immigration and drug laws apply in the analysis of the various state criminal drug laws. Stating the issue in simple terms: �Can a drug possession conviction, which is a felony under state law, be an �aggravated felony� under the U.S. immigration laws, even if the conduct resulting in the conviction would only be a misdemeanor if the case had been prosecuted in the federal court?� Eight of the nine Supreme Court Justices said, �No.�

This issue is particularly important for aliens convicted of felony drug possession crimes in the state of Florida, because the Eleventh Circuit Court of Appeals, which has jurisdiction for cases arising in the immigration courts in Florida, determined, in the case of U.S. v. Simon, 168 F.3d 1271 (11th Cir. 1999), that such a crime is considered an aggravated felony even if it would be a misdemeanor under the federal drug laws. If the same alien became subject to an immigration court hearing in California, the same Florida conviction would not have been considered an aggravated felony, because the Ninth Circuit Court of Appeals, had ruled to the contrary. Savvy immigration lawyers were known to advise their Floridian clients, who had these crimes, to move to a state within the Ninth Circuit to either file their citizenship applications, if eligible, or at least to be in a safer place in the event they were to become subject to removal proceedings.

It is important to understand that the term �alien� includes lawful permanent residents of the U.S., since �alien� is defined as anyone who is not a national or citizen of the U.S. We sometimes are confronted with situations where the client lawfully immigrated to the U.S. with his or her family as an infant, but is nevertheless without recourse to assert a defense to deportation as a result of a criminal escapade, because the family never got around to pursuing applications for citizenship.

In addition, under U.S. Immigration law, �conviction� is broadly defined to include any disposition that involves a plea or finding of guilt, or a no contest plea, even if adjudication of guilt is withheld, if any punishment whatsoever (for example, fine or probation) is imposed. Indeed, many aliens walk out of the criminal court with confidence that their minor criminal disposition will not be a problem for their immigration status, only to later discover that they are subject to mandatory detention and deprived of any realistic defense to avert removal from the U.S.

For an alien convicted of one of or more aggravated felonies, which are included in a long list of crimes � some of which are very serious and some of which may be considered as relatively innocuous � the consequences are very severe. In many situations the alien will be subject to mandatory detention while his or her removal case is pending. Such aliens will not be eligible to apply for asylum, or cancellation of removal, or even voluntary departure. Moreover, the so-called �aggravated felons� are not allowed to petition the federal courts for many types of claims. An alien convicted of an aggravated felony after Nov. 30, 1990 can never show the required good moral character to naturalize as a U.S. citizenship, even if she or he had served in the U.S. military.

For an alien with a pre-April 24, 1996 aggravated felony conviction, relief from deportation is still possible, thanks to the U.S. Supreme Court�s 2001 decision in INS v. St. Cyr, 533 U.S. 289 (2001), which held that an alien cannot be deprived of relief under repealed section 212(c) of the Immigration and Nationality Act, if the conviction involved a guilty plea. However, now that it has been 10 years since the 1996 legislation was signed into law, we see few cases involving pre-1996 convictions.

There are many permanent resident aliens who find themselves in the same type of predicament as faced by Lopez. It has been reported that, in 2005, about 77,000 immigrants were deported from the U.S. because of criminal records, and that about 7,000 of these had arrests for drug possession. In light of the Supreme Court�s ruling, many more resident aliens will now be permitted to apply for relief from removal, including what is called �cancellation of removal.� This relief is a discretionary remedy and involves the immigration judge�s balancing of the relevant negative and positive factors presented by the alien�s situation. To be eligible for cancellation the alien must have at least five years of lawful permanent residence (�Green Card Status�) in the U.S. and a minimum of seven years presence following a lawful admission.

For long term permanent residents with strong family ties, steady employment, evidence of filing of tax returns and demonstrated rehabilitation � assuming that criminal behavior was not particularly heinous � the chances are quite favorable that cancellation will be granted. The law provides that this remedy can only be granted a single time. One lesson we instill in all our clients is to seriously consider filing for U.S. citizenship at the earliest opportunity, because, among the other benefits, a U.S. citizen cannot be deported. One final important caution is that if you have ever been arrested or charged with a crime, make sure that your situation is reviewed by an experienced immigration attorney for all its immigration consequences before you travel abroad or make any immigration-related applications. Dilip Patel is a Board Certified Immigration Attorney. He is the founder of the Dilip Patel, P.A. law firm (www.dplawfirm.com) and has practiced business and immigration law in the Tampa Bay area since 1990. Gerald P. Seipp recently joined the Dilip Patel, P.A. law firm. Patel and Seipp can be reached at (727) 712 0066 or by email at [email protected]

	Nikhil Joshi

LABOR LAW

IMPLICATIONS OF MERGERS AND ACQUISITIONS � PART III
By NIKHIL N. JOSHI, J.D., M.B.A.

This is the last of a three-part series of articles on the labor law-related challenges that entrepreneurs can face when they grow their businesses in part due to acquisitions of other properties that present an opportunity to enter a new market, to obtain greater economies of scale or to gain other value-added benefits.

As stated in prior articles, with the growth of mergers and acquisitions of such properties, it is incumbent upon those individuals considering acquisition to conduct a thorough due diligence, beyond mere financial review, of the properties under evaluation. We have already discussed the impact of the general employment laws and the labor (union-related) laws. Today, we will consider the three remaining areas, including the �employee benefits laws,� the immigration laws and the laws governing mass layoffs.

EMPLOYEE BENEFITS LAWS

As part of its due diligence, the purchaser must seriously evaluate any retirement and/or benefit plans put into effect by the seller. The laws governing employee retirement and welfare benefits are extremely complex. Their application to the benefits implemented at the seller�s workplace, and thus any legal obligations that may arise, must be examined by experienced labor counsel, auditors and tax counsel to ensure compliance.

This examination is even more critical in the event the seller�s benefit plans are part of a multi-employer pension and benefits plan administered by a union. In the latter situation, the seller has a fiduciary responsibility to ensure the pension plan is not under-funded. If the plan is under-funded, the seller and, in some cases, the buyer may be assessed liability and steep financial penalties for the failure to adequately fund the plan under the federal labor and benefits laws.

IMMIGRATION LAWS

Under the Immigration and Reform Control Act of 1996, the purchaser is responsible for ensuring that all immigration-related documentation applicable to the seller�s employees complies with the law. To wit, as the successor employer, the purchaser must review the I-9 Forms for all employees who will continue working for the purchaser to ensure that they remain eligible to work in the United States. It is recommended that the employees be asked to freshly complete I-9 forms when the new owners take over.

Moreover, certain positions in transient businesses such as hotel or resort operations may be staffed by workers of foreign origin who hold special work visas. These visas may be particular to the employer/business and may limit the worker to the specific position held. Immigration compliance issues may arise if there are any changes to the position or any changes to the employing entity. As a result, if the purchaser would like to continue the relationship with a worker on a visa in compliance with the immigration laws, it may have to evaluate the options available to amend the employment-based visa petition.

LAYOFFS

In some cases, if the purchaser is not acquiring the rights to retain the workforce of the seller, which will result in the termination of the seller�s employees, then the seller may have to comply with obligations under the federal Worker Adjustment and Retraining Notification Act (WARN) and state and/or local laws dealing with mass layoffs and closings. Employers who are covered under these laws have obligations to provide advance notice to employees who will be affected by the mass layoff or closing and, in some cases, to the municipality and state where the business resides.

Failure to do so may result in penalties being assessed against the employer in addition to the monetary remedies available to the employees who were not provided such notice. To determine whether your business is subject to these laws, please consult with your labor counsel as the threshold for coverage and compliance varies depending on the circumstances of the closure or layoff.

The information presented in this article is general in nature. Nothing in this article is intended to provide specific legal advice. Please contact your labor counsel or other counsel if you have any particular issues that require attention.

Nikhil N. Joshi, a labor counsel with concentration in Human Resources Management at Kunkel Miller & Hament, P.A. in Sarasota, can be reached at 800-828-7133 or e-mail [email protected]