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
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 beginning 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-
No. 07-2462 3

ployed since that time therein in violation of his admittance.”

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 support 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).
4 No. 07-2462

The H-1B visa comes with certain conditions. As relevant 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 admitted as a nonimmigrant and who has failed to maintain 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 conditions 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
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 typographical error. A statement that Ali had worked at T & L

since March 2000 would not make sense in this case as
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.
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 arresting 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 administrative 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 maintains 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
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