Section 1101 - Definitions
91 Analyses of this statute by attorneys
The Supreme Court Update - April 29, 2024
Dorsey & Whitney LLPApril 30, 2024
ver the plaintiff’s remaining state-law claims pursuant to 28 U.S.C. § 1367.Bufkin v. McDonough, No. 23-713: This case involves a veteran’s benefit claim for post-traumatic stress disorder. The question presented is: Whether the U.S. Court of Appeals for Veterans Claims must ensure that the benefit-of-the-doubt rule in 38 U.S.C. § 5107(b) was properly applied during the claims process in order to satisfy 38 U.S.C. § 7261(b)(1), which directs the court to “take due account” of the Department of Veterans Affairs’ application of that rule.Bouarfa v. Mayorkas, No. 23-583: This immigration case concerns the availability of judicial review of certain proceedings under the Immigration and Nationality Act (INA). Congress has provided that “no court shall have jurisdiction to review” certain enumerated immigration decisions, as well as “any other decision or action” by the Secretary of Homeland Security “the authority for which is specified” to be in his “discretion” under Title II of the INA, 8 U.S.C. § 1101 et seq.; 8 U.S.C. § 1252(a)(2)(B)(ii). The question presented is: Whether a visa petitioner may obtain judicial review when an approved petition is revoked on the basis of nondiscretionary criteria.
Corporate Transparency Act: Reporting Beneficial Ownership Starting January 2024 - Update
Schwabe, Williamson & Wyatt PCM. John WayDecember 12, 2023
and will remain exempt for a period of 180 days following the loss of its tax-exempt status.A charitable trust or charitable split interest trust described under section 4947(a)(1) or (2) (26 U.S.C. §4947) of the Code is exempt.See Chapter 1.2 (Exemption #19) of the Guide and FAQ L.1 (on-line version dated 9/29/2023; PDF version dated 9/18/2023).Entity assisting a tax-exempt entity (Exemption #20)—An entity qualifies for this exemption if all four of the following criteria apply: (i) the entity operates exclusively to provide financial assistant to, or hold governance rights over, any tax-exempt entity described in Exemption #19 above, (ii) the entity is a United States person as defined in section 7701(a)(30) (26 U.S.C. §7701) of the Code, (iii) the entity is beneficially owned or controlled exclusively by one or more United States persons that are United States citizens or lawfully admitted for permanent residence (as defined in section 101(a) of the Immigration and Nationality Act (8 U.S.C. §1101), and (iv) the entity derives at least a majority of its funding or revenue from one or more United States persons that are United States citizens or lawfully admitted for permanent residence.(b) Large operating company exemption(Exemption #21)—An entity qualifies for this exemption if all six of the following criteria apply:The entity employs more than 20 full-time employees, when applying the meaning of full-time employee provided in 26 C.F.R. §54.4980H-1(a) and 54.4980H-3; For purposes of 26 C.F.R. §54.4980H-1(a) and 4980H-3: (i) “employee” means “an individual who is an employee under the common-law standard,” but a “leased employee,” a sole proprietor, a partner in a partnership, a 2-percent S corporation shareholder, or a worker described in Section 3508 is not an employee (26 CFR 54.4980H-1(a)(15), and (ii) “full-time employee” within 26 CFR 54.4980H-1(a) and 54.4980H-3 are based on hours of service, monthly equivalency, or weekly rule, depending on the circ*mstances.The refe
Corporate Transparency Act: Reporting Beneficial Ownership Starting January 2024
Schwabe, Williamson & Wyatt PCM. John WayOctober 28, 2023
d will remain exempt for a period of 180 days following the loss of its tax-exempt status.A charitable trust or charitable split interest trust described under section 4947(a)(1) or (2) (26 U.S.C. § 4947) of the Code is exempt.See Chapter 1.2 (Exemption #19) of the Guide and FAQ L.1 (on-line version dated 9/29/2023; PDF version dated 9/18/2023).Entity assisting a tax-exempt entity (Exemption #20)—An entity qualifies for this exemption if all four of the following criteria apply: (i) the entity operates exclusively to provide financial assistant to, or hold governance rights over, any tax-exempt entity described in Exemption #19 above, (ii) the entity is a United States person as defined in section 7701(a)(30) (26 U.S.C. § 7701) of the Code, (iii) the entity is beneficially owned or controlled exclusively by one or more United States persons that are United States citizens or lawfully admitted for permanent residence (as defined in section 101(a) of the Immigration and Nationality Act (8 U.S.C. § 1101), and (iv) the entity derives at least a majority of its funding or revenue from one or more United States persons that are United States citizens or lawfully admitted for permanent residence.(b) Large operating company exemption(Exemption #21)—An entity qualifies for this exemption if all six of the following criteria apply:The entity employs more than 20 full-time employees, when applying the meaning of full-time employee provided in 26 C.F.R. § 54.4980H-1(a) and 54.4980H-3 For purposes of 26 C.F.R. § 54.4980H-1(a) and 4980H-3: (i) “employee” means “an individual who is an employee under the common-law standard,” but a “leased employee,” a sole proprietor, a partner in a partnership, a 2-percent S corporation shareholder, or a worker described in Section 3508 is not an employee (26 CFR 54.4980H-1(a)(15), and (ii) “full-time employee” within 26 CFR 54.4980H-1(a) and 54.4980H-3 are based on hours of service, monthly equivalency, or weekly rule, depending on the circ*mstances.The ref
Court Rules Against Navajo Water Rights, Statutory Habeas Corpus – SCOTUS Today
Epstein Becker & GreenJune 23, 2023
estioning whether the Court should recognize the “breach-of-trust” concept at all. The eloquent Gorsuch dissent argues that the case is “not about compelling the federal government to take ‘affirmative steps to secure water for the Navajos’ . . . [but] is far more modest.” He thus suggests that the case is about no more than formulating a plan to identify the specific water rights that the United States holds in trust for the tribe and to stop misappropriating them. In a sense, Gorsuch is asking the Court to consider a detailed historical background, while the majority, applying usual conservative textual analysis, focuses entirely upon the operative document—the 1868 treaty—and finds no specific language in it that grants the right that the tribe seeks. One easily can see why the three liberals joined Justice Gorsuch.Justice Kavanaugh also wrote the Court’s opinion inPugin v. Garland(disposing of two related cases) holding that anoffense may “relat[e] to obstruction of justice” under 8 U.S.C. §1101(a)(43)(S) even if the offense does not require that an investigation or proceeding be pending. The result of the two cases in which the petitioners were convicted of aggravated felonies—dissuading a witness from testifying and being an accessory after the fact—that did not relate to pending official matters is their being subject to removal from the United States. Having amended the law in 1990, Congress provided that noncitizens convicted of a federal or state crime constituting an “aggravated felony” are removable from the United States. Congress expanded the definition of “aggravated felony” in 1996 to include offenses “relating to obstruction of justice.” The majority turned to dictionary definitions, federal laws, state laws, and the Model Penal Code to show that federal or state obstruction offenses “relat[e] to obstruction of justice” even if the offense does not require that an investigation or proceeding be pending. Interestingly, the dissenters inPuginsomewhat mirrored the roster of d
The Supreme Court Update - June 22, 2023
Dorsey & Whitney LLPSteven WellsJune 23, 2023
mpetition from other states, the Tribe sued the federal government, asserting a breach-of-trust claim from the 1868 treaty and seeking to compel the federal government to take affirmative steps to ensure the Tribe maintained access to sufficient water supply. Several states intervened against the Tribe to assert their competing water rights. Today, in a 5-4 decision authored by Justice Kavanaugh, the Court ruled against the Tribe and held that the 1868 treaty “contained no ‘rights-creating or duty-imposing’ language that imposed a duty on the United States to take affirmative steps to secure water for the Tribe.” Justice Gorsuch dissented and was joined by Justices Sotomayor, Kagan, and Jackson.View the Court'sdecision.Pugin v. Garland, No. 22-23: This immigration law and statutory interpretation case resolved a circuit split over which laws qualify as “aggravated felony” offenses “relating to obstruction of justice” that can justify a noncitizen’s removal from the United States under 8 U.S.C. §§ 1101(a)(43)(S), 1227(a)(2)(A)(iii). The Ninth Circuit held that a state conviction could only qualify as an offense “relating to obstruction of justice” if there was an investigation or proceeding pending at the time of the offense. The Fourth Circuit reached the opposite conclusion. Today, in a 6-3 decision authored by Justice Kavanaugh, the Court agreed with the Fourth Circuit. The Court relied on an “extensive body of authority—dictionaries, federal laws, state laws, and the Model Penal Code" along with “common sense” to conclude that “individuals can obstruct the process of justice even when an investigation or proceeding is not pending.” Justice Jackson filed a separate concurrence andJustice Sotomayor dissented and was joined by Justices Gorsuch and Kagan.View the Court'sdecision.Yegiazaryan v. Smagin, No. 22-381: This case clarified the definition of a “domestic injury” for allegations arising from the Racketeer Influenced and Corrupt Organizations Act (RICO Act). In this case, Vitaly Smagin
Three-Year Foreign Domicile Requirement for E-Visa Applicants
Jackson Lewis P.C.William ManningApril 26, 2023
Buried in the nearly 2,000-page National Defense Authorization Act (NDAA), P.L. 117-263, signed into law by President Joe Biden on December 23, 2022, is a provision requiring E visa applicants who acquired their citizenship in an E-visa-qualified country by way of an investment to have been domiciled in that country for a continuous period of at least three years prior to applying for an E-1 or E-2 visa to enter the United States.Section 5902 of the NDAA reads as follows:(B) Modification of Eligibility Criteria for E Visas. – Section 101(a)(15)(E) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(E)) is amended –(1) In the matter preceding clause (i) —(A) By inserting “(or, in the case of an alien who acquired the relevant nationality through a financial investment and who has not previously been granted status under this subparagraph, the foreign state of which the alien is a national and in which the alien has been domiciled for a continuous period of not less than 3 years at any point before applying for a nonimmigrant visa under this subparagraph)” before “, and the spouse ‘’; and….This amendment undercuts the ability of countries with CBI programs (including Bulgaria, Egypt, Grenada, Jordan, Macedonia, Montenegro, and Turkey) to attract investment by offering the possibility of obtaining a United States E visa. It also makes it more difficult for citizens of countries that do not have E agreements with the United States to obtain a visa allowing them to move to the United States for trade or investment.Persons who have previously been granted E-visa status are exempted from
The BEA Survey of Foreign-Owned Businesses Is Coming Around Again
Stroock & Stroock & Lavan LLPFebruary 25, 2023
process.It is important to note that the information provided to BEA in the survey response may only be used by BEA for statistical and analytical purposes.BEA is prohibited by law from granting another agency access to its survey responses for tax, investigative, or regulatory purposes.Please contact our team members if you have any questions concerning the forthcoming BE-12 filing process, ongoing compliance with the annual BE-15 filing requirement, and/or the initial BE-13 filing process.[1] See 15 C.F.R. § 801, available at: https://www.govinfo.gov/content/pkg/FR-2022-09-29/pdf/2022-21113.pdf[2] See https://www.bea.gov/system/files/2022-02/Which-form-do-I-file.pdf[3] The standard for being “acquired” concerning the BE-13 survey is the same as it relates to the BE-12 survey: at least 10 percent of the U.S. business’ voting securities are owned by a foreign person.[4] See 22C.F.R. § 120.16 - Foreign person means any natural person who is not a lawful permanent resident as defined by 8 U.S.C. § 1101(a)(20) or who is not a protected individual as defined by 8 U.S.C. § 1324b(a)(3). It also means any foreign corporation, business association, partnership, trust, society or any other entity or group that is not incorporated or organized to do business in the United States, as well as international organizations, foreign governments and any agency or subdivision of foreign governments (e.g., diplomatic missions).[5] See 31 C.F.R. § 129.2(f) – Foreign parent means any foreign person who owns or controls, directly or indirectly, 10 percent or more of the voting securities of an incorporated United States business enterprise, or an equivalent interest in an unincorporated United States business enterprise.[6] See 15 C.F.R. § 801.10(b).[7] See Description of Changes at 15 C.F.R. § 801.
The Supreme Court Update - January 13, 2023
Dorsey & Whitney LLPSteven WellsJanuary 17, 2023
maintain a RICO Act action based only on injury to intangible property.Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, No. 22-227: This statutory interpretation and federal Indian law case considers the extent of sovereign immunity for Native American tribes. The question presented is: Whether the Bankruptcy Code expresses unequivocally Congress’ intent to abrogate the sovereign immunity of Indian tribes. Specifically, whether Native American tribes are encompassed within the Code’s residual clause abrogating sovereign immunity for “other foreign or domestic government[s].”Pugin v. Garland; Garland v. Cordero-Garcia, Nos. 22-23, 22-331: These consolidated cases involve interpretation of the Immigration and Nationality Act (INA). Under the INA, a noncitizen who is convicted of an “aggravated felony” is subject to mandatory removal and faces enhanced criminal liability in certain circ*mstances. One aggravated felony is “an offense relating to obstruction of justice.” 8 U.S.C. § 1101(a)(43)(S). The question presented is: To qualify as “an offense relating to obstruction of justice,” 8 U.S.C. §11001(a)(43)(S), must a predicate offense require a nexus with a pending or ongoing investigation or judicial proceeding?
International Students and Their Dependents — F-2 Visas and Work and Study Authorization
Freeman LawMay 18, 2022
On April 30, 2022, Freeman Law posted my blog that provided a brief overview of international students in the U.S. pursuant to an F-1 visa and the limited circ*mstances under which those visa-holders may work in the U.S. See International Students, F-1 Visas, Graduation an . . . Work in the U.S.? Since that blog hit the Freeman Law webpage, I was accosted with questions about dependents of the F-1 student visa holder. This blog serves to supplement that previous blog, with a focus on the F-2 visa holder.Dependents of an F-1 visa holder are within the scope of the definition of “immigrant” contained in 8 U.S.C. § 1101(a)(15)(F), which defines “immigrant” to include “the alien spouse and minor children of any alien” having a residence in a foreign country which he or she has no intention of abandoning, who is a bona fide student qualified to pursue a full course of study at an established academic institution (i.e., the F-1 student), if such spouse or minor children are accompanying or following to join such F-1 student. See also 26 U.S.C. § 1201 (Issuance of visas).
International Students, F-1 Visas, Graduation and . . . Work in the U.S.?
Freeman LawMay 6, 2022
After graduation, those international students—many of whom come from less fortunate circ*mstances—seek to give back to the local U.S. community that provided so much opportunity, and many of this writer’s nonprofit organization clients—religious organizations, churches, and social service providers—are likewise eager to bring those international students into the workplace fold.Pause.An F-1 visa is not likely an appropriate vehicle for an international student’s post-graduation work in the U.S.Student visas (F-1) are authorized by United States Code (8 U.S.C. § 1101(a)(15)(F)) – “an alien having a residence in a foreign country which he has no intention of abandoning, who is a bona fide student qualified to pursue a full course of study and who seeks to enter the United States temporarily and solely for the purpose of pursuing such a course of study . . . at an established [and qualified and approved] college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in an accredited language training program in the United States . . .”) (emphasis added).The Regulations (specifically, 8 C.F.R. 214.2(F)(9)) authorize qualified and limited conditions when an F-1 visa student may work—on campus and off campus—during the student’s course of study.
