My husband died in 1991 due to a severe stroke.  He left behind two sons, one daughter and me.  My husband applied for permanent residence on October 8, 1985, under the fourth family-based preference (Brother/Sister of U.S. Citizen.)  In October 1997, we received a letter from National Visa Center telling us that our case was being forwarded to the U.S. Consulate in Islamabad.  But due to my husband's tragic death, I did not pursue my case at that time.  Now I have decided  that I should continue my case.  I would like to know if I should proceed with this case or have my U.S. citizen sister file on my behalf.

Your ability to obtain an immigrant visa was based on your husband's case; you and your children were only derivative beneficiaries.  Once he died, you and your children were no longer eligible to immigrate under the fourth family-based preference.  If you wish to immigrate to the United States, you will need to have your U.S. citizen sister file a petition on your behalf.  However, the fourth family-based preference is subject to a considerable backlog; it took 12 years for your husband's case to become current.  You will probably have to wait about that long for your case to become current. 

I am a Canadian citizen in the United States on an H-1B, which expires in May 2002.  However, I was laid off 7 months ago.  Since then I have engaged in unauthorized self-employment.  My wife has an H-1B and I have not made an application for permanent residence.  I have now been offered a position in the United States, which is similar to my previous job.  The prospective employer is prepared to assist me to obtain work authorization.  I have not made any misrepresentations to the Immigration and Naturalization Service ("INS") nor am I excludable on other grounds.  I meet the criteria for TN status.  If I go back to Canada and present myself at a Port of Entry and apply for a TN, will I be denied entry based on the violation of the H-1B?

I just wanted to clarify that, once you were laid off, your H-1B actually terminated.  Under INS regulations, you had only ten days from that date to depart from the United States.  The expiry date on your Form I-94 is irrelevant at this point.  By remaining in the United States beyond the permitted period, you violated your status.  This was in addition to the violation of status resulting from your unauthorized self-employment.  If the INS discovers the violation of status, you will be subject to removal.  Unlawful presence will also begin to accrue for the purposes of the three- and ten-year bars.  However, based on the information you have provided, it appears as though the INS is not yet aware of this violation. 

As for misrepresentations, if you left the United States after you were laid off an re-entered using your invalid Form I-94, it is arguable that you misrepresented your status to gain entry.  This might cause the INS to allege material misrepresentation.  However, for the purpose of this question I will have to assume that this did not occur. 

You have claimed that you are eligible for TN status, but have not provided any information regarding your job.  Not all aliens who qualify for H-1B will also qualify for a TN.  However, for the purpose of this question I will have to assume that you are eligible for TN status. 

Assuming that you qualify for a TN and are not excludable on any other grounds, a prior violation of status itself is not actually a ground of exclusion.  However, the INS *may* still use it to deny you admission as a TN when you apply at a port of entry.  This is because persons in TN status are subject to s. 214(b) of the Immigration and Nationality Act ("INA"), which states that you are presumed to be an intending immigrant unless you can overcome the presumption with evidence.  The fact that you remained in the United States past the period authorized and that you engaged in unlawful employment may suggest that you do not respect immigration laws and that you intend to remain in the United States permanently.  Of course, immigrant intent is a very discretionary issue.  It is still possible to argue that you have nonimmigrant intent, but given the fact that you have overstayed for seven months and engaged in unlawful employment, you have a difficult burden to overcome. 

Also, it is *possible* that the INS will not ask you about previous violatations of status at the time that you apply for entry, since your old Form I-94 would not have expired yet.  Although you would need to tell the truth if they asked about your previous status and/or your activities while in the United States, the issue might not come up.  If it does not, you may be admitted without problems.  If it does, you may be denied admission on the basis of INA 214(b).  If you are denied entry, you will probably have to try some other nonimmigrant status that recognizes dual intent (such as an H-1B.)

I am a physician who has been hired by an emergency medicine company in the United States.  My job title is Director of Emergency Medical Education.  This position also comes with a clinical appointment to a medical university.  My work will involve both medical education and clinical work too.  Medical teaching usually requires bed side teaching.  My question is, not that H-1B's are now unavailable, can I go down on a TN, eventhough I will be doing clinical teaching?

The INS Inspectors Field Manual ("IFM") states that foreign medical school graduates seeking temporary entry as TN nonimmigrants may not engage in direct patient care. However, patient care that is incidental teaching and/or research is permissible. 

Although no clear rules exist for determing when patient care is incidental, the IFM states that patient care is incidental when it is casually incurred in conjunction with the physician's teaching or research.  To determine if the patient care will incidental, factors such as the amount of time spent in patient care relative to teaching and/or research, whether the physician receives compensation for such services, whether the salary offer is so substantial in teaching and/or research that direct patient care is unlikely, or whether the physician will have a regular patient load, should be considered by the INS officer. 

This is clearly a very discretionary issue, decided on a case-by-case basis by the inspecting INS officer.  You would need to schedule a formal consultation with me if you wanted me to consider the likelihood of your getting a TN in this specific case.