Meer S. Ali v. MICHAEL B. MUKASEY, Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2462
MEER S. ALI,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A78-857-590
____________
ARGUED FEBRUARY 14, 2008—DECIDED SEPTEMBER 8, 2008
____________
Before MANION, ROVNER, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. 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

-- 1 of 8 --

2 No. 07-2462
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 begin-
ning 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.
I. BACKGROUND
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 em-

-- 2 of 8 --

No. 07-2462 3
ployed since that time therein in violation of his admit-
tance.”
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.
II. ANALYSIS
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).

-- 3 of 8 --

4 No. 07-2462
The H-1B visa comes with certain conditions. As rele-
vant 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 nonfrivolous 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 ad-
mitted as a nonimmigrant and who has failed to main-
tain the nonimmigrant status in which the alien was
admitted . . . or to comply with the conditions of such
status, is deportable.” 8 U.S.C. § 1227(a)(1)(C)(i). The
question here is whether Ali complied with the con-
ditions of the H-1B visa he received to enter the United
States in July 2000.
During the hearing before the immigration judge,
Special Agent O’Sullivan testified that on the day Ali

-- 4 of 8 --

No. 07-2462 5
was taken into custody, Ali admitted he had been
working for T & L Foods for approximately 40 hours per
week beginning in March of 2002. Working at T & L on
August 20, 2002, the day of the raid, did not alone
render Ali deportable, as T & L had filed a new petition
on his behalf in June 2002 that allowed him to begin
working there as of the petition’s filing. But if Ali had
started working for T & L in March, then he began
working for T & L three months before it filed its petition
on his behalf in June 2002. As a result, he would be
deportable for failing to comply with the conditions of his
visa.
Ali, however, seizes on a discrepancy in the Form I-213
that Special Agent O’Sullivan completed. On the form,
Special Agent O’Sullivan stated in one place that Ali
said he had been working for T & L since March 2002,
while a few lines later the form states that Ali said he
began working at T & L in March 2000. Special Agent
O’Sullivan testified at the hearing that the “2000” notation
on the form reflected a typographical error and that the
correct date was March 2002. Ali maintains that the
inconsistency on the form renders it unreliable. And
because Special Agent O’Sullivan relied on his form
when he testified at the hearing, Ali maintains that
Special Agent O’Sullivan’s testimony cannot be credited.
We disagree.
The immigration judge was justified in concluding that
the form’s single reference to March “2000” was a typo-
graphical error. A statement that Ali had worked at T & L
since March 2000 would not make sense in this case as

-- 5 of 8 --

6 No. 07-2462
Ali did not arrive in the United States until July of that
year, a fact noted elsewhere on the form. Moreover, we
would be more concerned about the discrepancy on
the form if using one date over the other affected the
result. In this case, however, whether Ali had started
working at T & L in March 2000 or March 2002, the end
result is the same. Both dates are before T & L filed its
petition on Ali’s behalf, so Ali could not have lawfully
started working at T & L on either date. Cf. Rosendo-Ramirez
v. I.N.S., 32 F.3d 1085, 1088-89 (7th Cir. 1994) (finding
no error in admission of Form I-213 as evidence of
deportability even though the form was carelessly drafted).
Finally, the letter Ali submitted into evidence from
Everest Consulting Group does not help him. This letter,
dated May 15, 2002, states that Ali was a full-time
Everest employee and had been working for the
company since August 22, 1999 as a software engineer.
Even so, that does not foreclose the possibility that Ali
was working for both Everest and T & L at the same
time, and there is no evidence in the record from T & L,
Ali or anyone else that Ali had not been working at T & L
since March 2002. Although working two jobs is by no
means easy, it is also a reality for many. On this record,
then, the immigration judge was justified in finding
that Ali began working at T & L in March 2002, and we
decline to set aside the determination that Ali was
deportable for beginning to work at T & L before the
terms of his visa allowed him to do so.

-- 6 of 8 --

No. 07-2462 7
B. Arrest and Examination by Same Agent
Ali also argues that Special Agent O’Sullivan violated
8 C.F.R. § 287.3(a), which provides that “an alien arrested
without a warrant of arrest . . . will be examined by an
officer other than the arresting officer.” The provision
further states that “[i]f no other qualified officer is
readily available and the taking of the alien before
another officer would entail unnecessary delay, the arrest-
ing officer, if the conduct of such examination is a part
of the duties assigned to him or her, may examine the
alien.” Id.; see also Martinez-Camargo v. I.N.S., 282 F.3d 487,
490-92 (7th Cir. 2002). Ali maintains that because he was
arrested during the execution of a search warrant, not
pursuant to a “warrant of arrest,” the regulation governs.
We cannot reach Ali’s argument, however, because
his brief to us marks the first time that he raised this
argument. An alien must exhaust all available admin-
istrative remedies that are available as of right before
we can review a claim. See 8 U.S.C. § 1252(d)(1); Huang v.
Mukasey, 525 F.3d 559, 564 (7th Cir. 2008). Exhaustion is
not required when there is a fundamental, substantive
constitutional violation, Bosede v. Mukasey, 512 F.3d 946,
952 (7th Cir. 2008), but that is not the case here.
Ali has been represented by counsel throughout the
deportation proceedings, yet he did not mention 8 C.F.R.
§ 287.3(a) before the immigration judge or before the
Bureau of Immigration Appeals. Nonetheless, Ali main-
tains that his general argument that the immigration
judge erred by relying on the Form I-213 to find him
removable was sufficient to preserve his claim based on

-- 7 of 8 --

8 No. 07-2462
a violation of 8 C.F.R. § 287.3(a). But a claim that Special
Agent O’Sullivan should not have both questioned and
arrested Ali is a much different argument than a claim
that the information on the form was insufficient to find
him deportable. Ali’s arguments to the immigration
judge and the BIA gave no hint of an argument based on
his arrest by the same person who examined him, so we
lack jurisdiction to review this claim. Cf. Huang, 525 F.3d
at 564 (broad argument not sufficient to exhaust time
bar issue before BIA where petitioner did not raise time
bar to BIA).
III. CONCLUSION
Accordingly, we DENY Ali’s petition for review.
9-8-08

-- 8 of 8 --