Nation Of Immigrators

Nation Of Immigrators

A public policy blog on America's dysfunctional immigration system

Immigration Voices: Baring My Teeth at I-9 Enforcement Inequalities

Posted in Enforcement/USICE, Guest Columns, I-9s, State Immigration Laws

[Blogger's note:  Here we go with another guest column from Nicole (Nici) Kersey who offers a witty, wise and worthy post on the inequities and inanities of the worksite enforcement scheme concocted by Congress in 1990, a flawed system of employer deputization of governmental functions largely maladministered by various agencies of the Executive Branch.  Worse yet for employers, the states too are getting into the act.  Witness last week's California Supreme Court decision, Salas v. Sierra Chemical Co., which held that claims of undocumented workers who present false documentation during the I-9 process are enforceable against employers under state antidiscrimination and worker protection laws , despite the defense of federal immigration-law preemption  -- at least until the employer receives notice that the worker is unauthorized for employment.  So the broken enforcement scheme creates ever more headaches and hurdles for employers.]

Baring My Teeth at I-9 Enforcement Inequalities

By Nicole (Nici) Kersey

I admit it.  I know more about quidditch than about soccer.  The World Cup holds little interest for me, aside from the occasional glimpse of impressive Chilean, French, or Honduran abs[1].  (And, lucky for me, I can skip the games and jump to VH1’s “Best Soccer Abs” contest to see the most rippling of 6-packs.)

dick-cheney-growling

So as the rest of the world holds its breath while these guys run up and down the field, apparently biting one another and causing Adidas to pull “teeth-baring” ads, I’ve been holed up in my office working and, for fun, binge watching Orange is the New Black.  I read the book before it became a series, but when my nearly 4-year-old daughter asked me (completely out of the blue[2]) – “Mommy, why are you probably going to die in jail?” – I thought I should study up.

The World Cup and the New Black both got me thinking about the assumptions people make based on appearances or accents.  In many ways, soccer and prison are great equalizers.  You can play soccer no matter what your size, gender, citizenship status or national origin.  And in jail, while race, gender, and age may divide inmates more dramatically, those who may never have come into contact on the outside become roommates (at least they do on tv), wear the same clothes regardless of wealth, and eat the same food.

In the immigration world, employers face a number of dilemmas every day, driven largely by the appearance or voice of employees or applicants:

  • When to ask if someone is authorized to work in the U.S.
  • Whether to ask what a job applicant’s immigration status is
  • Whether to refuse to sponsor a visa
  • When to refuse a document presented as proof of work authorization
  • When and how deeply to investigate a tip indicating that a worker or group of workers lacks work authorization
  • Whether to terminate a worker’s employment if the individual comes forward with a new SSN/identity and admits that he was previously not authorized to work
  • What type of document an employee must present to prove work authorization (and whether the employer can specifically ask for that document)

These are just a few examples that lead to seemingly awkward situations in which a recruiter cannot ask the applicant with the great French accent whether he’s from France or Canada; and an HR manager is warned not to tell the new intern that she needs to see his I-20, even when that’s the only document he could possibly present to prove work authorization.   Because of confusion about the proper questions to ask on a job application, employers find themselves rescinding job offers to new hires who turn out to be H-1B employees.

And employers who work hard to ensure equality, making no assumptions based on appearance, native language, a foreign-sounding accent, or citizenship status, face a serious and unjust risk:  if it turns out that those employees lack work authorization, the employer faces a greater likelihood of penalties for Form I-9 paperwork violations and increased fine amounts, even if the employer had no reason to know that the employees were unauthorized.

Under ICE policy, employers who would otherwise receive a Warning Notice for paperwork violations (avoiding fines), must instead receive a Notice of Intent to Fine (NIF) in “instances where unauthorized aliens were hired as a result of substantive paperwork violations.”  While this policy implies that the paperwork violation must have actually caused the employer to hire someone who was not authorized to work, in practice ICE need not prove causation: correlation is sufficient.  (If causation could be shown, one might expect ICE to charge the employer with a knowing hire violation instead of – or in addition to – a paperwork violation.)

Once the employer is on the hook for fines, ICE increases the base fine amount by 5% for each I-9 relating to an unauthorized worker.  (An increase is suggested by the regulations, though no specific percentage is set out.)

This leaves employers, particularly in the construction, hotel, manufacturing, and restaurant industries particularly vulnerable.  They’ve been effectively deputized and asked to enforce the immigration laws.  They are prohibited from discriminating based on citizenship or national origin.  They must accept documentation as proof of identity that reasonably appears to be genuine and to relate to the employee presenting it.  Yet if they make a substantive error on the Form I-9 (such as attaching copies of the employee documentation to the form instead of writing the data in Section 2; or failing to make the employee input his A# in Section 1 of the form), and the employee turns out to lack work authorization, the employer is at a high risk for high-level fines (again, even if the employer did not have any reason to suspect that the employee was not work-authorized).

An employer in another industry (such as the banking or consulting industry) is at a much lower risk, even with a high rate of paperwork errors, simply by virtue of the makeup of its applicant pool and the birthplace of its employees.  The employer is less likely to be inspected by ICE in the first place.  If inspected, it is more likely to receive a Warning Notice for its paperwork violations, and if fined, the fines will be lower due to the lack of unauthorized workers.

In the end, it seems that while employers are prohibited from discriminating, government policy encourages them to do so.

And now … back to the best abs contest, where Chile and Portugal are on even footing with the French.  Though when determining a winner here, I think it’s okay to take a foreign-sounding accent into account.


[1] The Spanish and Portuguese are in the running as well.

[2] Okay, so we took her to see Muppets Most Wanted, which has resulted in a much more detailed discussion of gulags, jails, thieves and burglars than I ever expected to have with my child.

The Immigration Pony in Eric Cantor’s Defeat

Posted in Congress on Immigration, Employment-Based Immigration, Family Immigration, Foreign policy, GOP on Immigration, Immigration Reform

Steve Case quoting Nelson MandelaThe usual voices said trite things when a sliver of Richmond, Virginia Republican primary voters last Tuesday rejected Eric Cantor’s bid to continue as Majority Leader in the House of Representatives.  With a margin of just over 7,200 votes out of roughly 62,000 cast, David Brat, a college economics professor and Johnny-one-note who beat the anti-amnesty drum with gusto, eked out a victory over a powerful politico and unleashed a flood of prognosticators who argue that immigration reform in this Congress is dead.

Those of us who still believe reform will happen, if not soon but inevitably, are likely to be derided as incurable optimists, much like the young boy in Ronald Reagan’s “pony in the manure” joke.  As I explained, however, to Roy Maurer, Online News Manager/Editor for the Society of Human Resources Management (“Does Cantor Loss Signal the Demise of Immigration Reform?”):

Eric Cantor’s loss is not a death blow to immigration reform.  The economic and moral imperative to resolve an issue of this magnitude is far larger than one individual’s loss in the primary to talk-media stoked anti-amnesty rantings.  Changes will occur as leaders come to the fore — whether, for example, by Majority Leader Boehner with incremental action in the House or by President Obama through executive orders, or by others.  The struggle for reform is not over;  it may be slowed a bit, but the country’s prosperity and its social fabric depend on fixing this broken system.

Immigration reform is not dead because Americans, by an overwhelming margin of 62% in recent polling, favor enacting a pathway to citizenship for undocumented people in our country.  It is not dead because the following problems will not go away merely because 7,200 or so Republicans in Virginia tossed out Eric Cantor (who — unlike steadfast reformer Lindsey Graham, a victor in his GOP primary — blew hot and cold on amnesty versus reform):

These problems will only fester until our politicians realize that the American people have had enough.  Meantime, advocates for reform will continue pushing, while opponents use the techniques of distortion and diversion to forestall the inevitable.  Leaders will emerge.  As Steve Case reminded us with the words of Nelson Mandela, “it always seems impossible, until it’s done.”

Immigration Voices: Dr. No vs. the League of Extraordinary Aliens

Posted in Extraordinary Ability, Guest Columns, O-1 Visas, Requests for Evidence (RFEs), USCIS, USCIS Ombudsman

survey questionnaire

[Blogger's note:  An anonymous immigration lawyer offers this lament on the woeful quality of adjudications at U.S. Citizenship and Immigration Services (USCIS).  For related wailing, see:  “ 'I Hate [Bleep]ing Immigration Law’ — Whenever I Get an Unjust Request for Evidence,” “End the Tyranny of Immigration Insubordination,” and “Immigration Indifference – The Adjudicator’s Curse.”]

Dear Immigration Colleagues:

On my doctor’s advice, I am considering changing careers. Like perhaps many of you, helping clients overcome unreasoned decisions and ludicrous requests for evidence year in and year out has taken its toll on my blood pressure. The quality of adjudications by USCIS seems to be declining even further, unfortunately, and I figure now is the time to get out while I am still living.

A string of recent O-1 RFEs [Requests for Evidence], and NOIDs [Notices of Intent to Deny] from the USCIS California Service Center reveal a new disturbing trend.  The best and brightest, including the very STEM PhDs to whom the Senate and much of the House would essentially just give green cards, now find themselves in the crosshairs of the USCIS such that they are being prevented from even coming to work, or continuing to work, temporarily. We just recently received a Notice of Intent Deny, for example, for the fifth O-1 extension for the CEO and founder of a very successful U.S. technology company.

Unfortunately, the example above is not a one-off training issue, despite what the USCIS brass might say when they read this piece ( I will be sending it to them). We have confirmed with other colleagues that O-1 petitions filed for top notch STEM PhDs, supported by voluminous awards, recommendations, patents, and publications are being stopped in their tracks, and told that such evidence does not show that they meet any of the O-1 criteria.  Do these government officials know that these are the guys whom just about everybody in Congress agrees we should actually be encouraging to come here? Shouldn’t this general understanding of our policy inform officers’ discretion in these matters?   Where is the disconnect between us, our duly elected officials, and the officers adjudicating these cases?

Bureaucrats like the one who is intent on denying our client’s case can have a profoundly negative impact on peoples’ businesses and lives, not to mention the U.S. economy as a whole. Sometimes, this can be fixed. The impact on an attorney’s health year after year, however, may not be reversible. That is why I figure it is time leave.  Of the many careers I have considered, I have thought about becoming a screenwriter of spy thrillers. Dealing in fiction, where no one actually gets hurt by rogue government officials, would seem to be a better way to live a longer, healthier life.  Before I make the leap, I wanted to share with you my pitch for one screenplay idea. It is a sequel to one of the early James Bond thrillers, with a science fiction twist (Please be gentle in your criticism. My nerves are a bit weak these days).

Here it is:

 Title:  Dr. No vs. the League  of Extraordinary Aliens

 Dr. No is back, and this time he is ready to do some real damage. He, and his evil “Culture of No” agents, have  infiltrated the  elite government sub-department responsible for bringing the  “League of Extraordinary Aliens” to earth.  Members of the League comes to us from far off planets like, Europater, and Asiater, and use their super powers to help solve Earth’s biggest problems, like  economic stagnation, global warming, and low quality Hollywood entertainment.

 In reality, Dr. No has never left. He and his agents have operated their secret organization, SPECTRE [Society to Prevent Economic, Cultural and Technological Revitalization and Enhancement] from deep beneath a dark and ominous missile factory somewhere in Orange County.  They have lurked in the shadows,  sporadically attacking international business, and technological innovation to serve what could only be their ultimate goal:  returning society to the Middle Ages.  Now they are going all out. SPECTRE has managed to turn its weapons, the RFE explosive device and NOID blaster, on our last hope for progress, the League of Extraordinary Aliens. Even that most righteous protector of the League, Ombuds Man, is rendered powerless in the face of SPECTRE’s firepower. …

 That is as far as I have gotten with the screenplay. I still need help coming up with an ending, and am having a hard time imaging a happy one.  I look forward to your ideas.

L-1 Petitioners Beware: USCIS Confirms Plans to Expand FDNS Site Visit Program

Posted in Fraud Detection & National Security (FDNS), Guest Columns, L-1 Visa, Uncategorized

L-1 Petitioners Beware:

USCIS Confirms Plans to Expand FDNS Site Visit Program

By Maura K. Travers and Angelo A. Paparelli

History is about to repeat itself. Fraud Detection and National Security (FDNS), a directorate of  United States Citizenship and Immigration Services (USCIS), is set to embark on another foray of surprise visits to Corporate America, seeking to determine whether employers petitioning for work-based immigration benefits have kept their word.

Crime Scene Investigator

First employers of R-1 religious workers were the target of scrutiny, and then sponsors of H-1B workers in specialty occupations heard the knock on the door (see  ”Immigration Promises Made, Debts Unpaid,” “Immigration Mission Creep and the Flawed H-1B Report on Fraud and Abuse,” and “A Cancer within the Immigration Agency“).

Soon petitioners seeking L-1 intracompany transferees should expect an FDNS site visit.  Just as with the R-1s and H-1Bs, perceived abuses have led to these visitations (see U.S. Department of Homeland Security, Office of Inspector General Reports, “Implementation of L-1 Visa Regulations,” and “Review of Vulnerabilities and Potential Abuses of the L-1 program,”  and “What the ‘L’ is Going on with USCIS?”).

Here’s the scoop.  In an April 24, 2014 stakeholder teleconference, FDNS’s Associate Director, Sarah Kendall, confirmed plans to expand the Administrative Site Visit and Verification Program (ASVVP) to include all L-1 employers.

Background

Under ASVVP, FDNS Officers conduct random, unannounced pre- and post-adjudication site inspections to verify information contained in certain visa petitions (typically, H-1B petitions).  In fiscal year (FY) 2011, FDNS performed more than 17,000 ASVVP site visits, an increase of over 2,000 visits from the previous fiscal year.

Context

The expansion of the site visit program comes in response to an August 2013 report released by the U.S. Department of Homeland Security’s Office of Inspector General (OIG) analyzing USCIS’ L-1 intracompany transferee program and suggesting ways to reduce fraud and standardize adjudications across the program.  Initial evidence suggested that USCIS would focus this expanded site visit effort on extensions of individual L-1 new office petitions originally filed with USCIS Service Centers.

Update

During the April 24th teleconference,  USCIS confirmed plans to administer a phased roll-out of ASVVP to include site visits to all L-1 employers.  Although listeners were left wanting for specific details regarding an anticipated timeline for this phased expansion, USCIS confirmed that the first phase will focus on all L-1A extension petitions filed with USCIS.  Furthermore, USCIS confirmed that a pilot program and inspector training are scheduled to be completed by the end of FY 2014.

In line with the existing ASVVP, L-1 site visits will be conducted randomly based on data gathered from Form I-129.  Although USCIS indicated that it ultimately plans to include L-1 Blanket applicants in the site visit program, the agency did not specify what data will be utilized for the random selection process, because L-1 Blanket applicants do not file Form I-129 with USCIS.

USCIS indicated several areas that inspectors will focus on during L-1 site visits:

  • Does the business exist?
  • Does the business appear to be ‘in business?
  • Was contact made with the signatory of the petition or the Human Resources representative?
  • Did the signatory or Human Resources representative have knowledge of the petition and of the beneficiary?
  • Was the beneficiary available to be interviewed?
  • Was the beneficiary working for the business?
  • Was the beneficiary knowledgeable, forthcoming, and performing same duties as represented in the petition?
  • Is the beneficiary being paid the salary as indicated in the Petition?

Anticipated Issues

While USCIS attempted to assure stakeholders that the random site visit program should raise no concerns for honest L-1 employers, listeners may have been left with a different impression.  It is evident that USCIS has not reconciled some key differences between the H-1B and L-1 visa categories with respect to specific site visit protocols.  For example, in order to file an H-1B petition, an employer must first obtain an approved Labor Condition Application (LCA) from the Department of Labor (DOL).[1]  The LCA includes an attestation to the DOL that the employer will offer the H-1B nonimmigrant the prevailing wage in the intended geographic area of employment.[2]  As such, an employer must accurately indicate the H-1B beneficiary’s salary and worksite location in the petition to ensure compliance with the law.

However, there is no LCA requirement in the L-1 context.  Therefore, the DOL does not regulate L-1 salaries within specified geographic areas.  In fact, an employer is not required to file an amended L-1 petition unless: (1) there is a change in the L-1 beneficiary’s capacity of employment (i.e., from a specialized knowledge position to a managerial position); (2) there is a material change to the L-1 beneficiary’s job duties affecting L-1 eligibility; or, (3) there is a change in the qualifying relationship between the U.S. petitioner and its foreign entities.[3]

As such, under the current law, an L-1 beneficiary’s worksite, salary, and job duties are subject to change without notice to USCIS. Therefore, FDNS inspectors relying on data contained in the Form I-129 may not possess the most up-to-date information at the time of inspection.  An L-1 employee selected for inspection may no longer be present at the worksite indicated in the petition.  Furthermore, it is not entirely clear what USCIS hopes to gain by auditing information about the salaries and job duties of L-1 beneficiaries, considering there is no regulatory requirement for continued compliance with the original petition.

According to the agency, the initial site visit will not be determinative. If the beneficiary has moved to a different work site, the site inspector will follow up with the company to confirm the L-1 beneficiary’s new work site, salary, and job duties.  The site inspector will take into account the particularities of the L-1 category into consideration before completing a compliance review report and submitting it for supervisor review.  However, it remains unclear how follow-up with the employer will occur and how the supervisor review process will work in practice.

While compliance in the H-1B context is straight forward due to the LCA requirement, the standard for compliance in the L-1 context is less clear.  To date, USCIS has provided little guidance regarding L-1 compliance.  Therefore, sending FDNS officers on site visits to investigate employers’ compliance with the L-1 program seems frivolous at best.

Preparing for the Foreseeable

With or without further guidance from USCIS, L-1 employers should be prepared for FDNS site visits.  Employers should take these visits seriously and contact an immigration attorney as soon as an FDNS site visitor appears.  Identify procedures in advance to prepare for an unannounced FDNS worksite visit and notify all personnel of these procedures.  Always provide complete and accurate information whether requested to do so onsite or subsequently via email.  According to USCIS, the ASVVP is a voluntary program.  The employer has a right to terminate a site visit at any time.  If the officer has not gathered the required information, the officer will follow up with the employer via telephone or email to obtain additional information to complete the compliance review.  An attorney can help prepare a timely and thorough response.

Employers should conduct an internal review of the employment of all L-1 employees to ensure that their job duties, worksites and salaries are readily available.  Retain complete copies of all I-129 petitions and paperwork.  Ensure that foreign national employees and their managers are aware of the content of the I-129 petition and supporting documentation.  While there is currently no requirement to file an amended L-1 petition due to minor changes in employment, employers should be prepared to provide complete and accurate information about L-1 beneficiaries to site inspectors either on site or in response to follow-up inquiries by an inspector.  For general background on investigation preparedness, see “No Skating on Thin ICE: Using Enforcement Preparedness Policies to Prevent Drowning in Frigid Immigration Waters.”


[1] 8 CFR §§214.2(h)(4)(i)(B)(l) and 214.2(h)(4)(iii)(B)(l); 20 CFR §655.700(a)(3) and (b); INA §212(n)(1).

[2] INA §§212(n)(1)(A)-(D); AFM ch. 31.3(b): H-1B Classification and Documentary Requirements.

[3] 8 CFR §214.2 (l)(7)(C)

USCIS Gets an EB-5 Earful at Immigration Listening Session

Posted in EB-5, Investor Immigration, USCIS

earful.jpg[Blogger's note:  For EB-5 stakeholders interested in learning more about the USCIS Listening Session, you can register for "EB-5 Immigrant Investor Update,"  a webinar presented by members of Seyfarth Shaw LLP's EB-5 Immigrant Investment Team on May 13, 2014.  Topics include: 

• The April 23, 2014 USCIS’s stakeholders listening session

• FINRA’s recent notices and how to spot key trends in EB-5 regulation

• Recent subpoenas issued by the SEC and what these enforcement efforts may mean for you

• Brokerage issues and Investment Advisor registration requirements

• Senator Coburn’s requests to regional centers for EB-5 program data.]

USCIS Gets an EB-5 Earful at Immigration Listening Session

On April 23, 2014, U.S. Citizenship and Immigration Services (USCIS) — the component of the Department of Homeland Security (DHS) that administers the EB-5 Immigrant Investor Program — held an important “Listening Session” with the stakeholder community.  

EB-5 Program Chief, Nicholas Colucci, flanked by representatives of the Offices of Policy, Chief Counsel and Public Engagement, and by Dr. Winslow Sargent, Chief Counsel to the SBA’s Office of Advocacy, explained that the session is a prelude to the promulgation of new EB-5 regulations. These new rules, he noted, would enhance program predictability and consistency by better defining substantive eligibility requirements and establishing consistent filing requirements.  He added that the new regulations are but one step in transforming the EB-5 program, noting that the agency concurred in the December 2013 recommendations of the DHS Office of Inspector General that USCIS take additional measures, which he did not describe, to address EB-5 fraud and national security concerns.

The Listening Session — which Mr. Colucci noted was held in deference to Executive Order 13563 (“Improving Regulation and Regulatory Review”)  – covered a wide array of suggestions including proposals for new legal rights and interpretations, greater access to accurate program data and improvements in investor protection, the impact of immigrant visa quota backlogs and the need for greater speed and predictability of adjudications.  

Legal Rights and Interpretations

Private attorneys and others on the call made a number of suggestions:

  • Allow each party with a material stake in the outcome of an EB-5 adjudication — an I-924 request for designation as a regional center or amendment; an I-526 immigrant investor petition to be found classifiable as a qualifying EB-5 investor; and an I-petition to remove conditions on permanent residence — to have a right to be heard before the agency and to be represented by separate counsel (at present only a regional center is represented in an I-924 proceeding, and only the immigrant investor is represented in I-526 and I-829 petition).
  • Allow investors who are members of limited liability companies (LLCs) to be treated on par with limited partners in establishing that “the petitioner is or will be engaged in the management of the new commercial enterprise” under 8 CFR § 204.6(j)(5)(iii).
  • Interpret the corporate restructuring or reorganization provision of 8 CFR § 204.6(h),
  • which holds that a new commercial enterprise may consist of the “purchase of an existing business and simultaneous or subsequent restructuring or reorganization such that a new commercial enterprise results,” consistently with traditional notions of corporate law allowing the formation and recognition of a new legal entity that acquires a predecessor’s assets, and thus overrule contrary interpretations found in Matter of Soffici, 22 I&N 158 (Assoc. Comm’r, Examinations 1998) [the caller mistakenly referred to Matter of Izummi, a different precedent decision] and the May 30, 2013 USCIS EB-5 policy memorandum. In other words, as another attorney later noted, asset acquisitions should be treated as new commercial enterprises. 

  • Given the delays of adjudication and the need for careful due diligence on potential investments, allow prospective EB-5 investors to enter as B-1 business visitors and provide them with work and travel-abroad permission while they evaluate and make a suitable employment-creation investment. 
  • Allow an investor to cure a perceived problem with the investment subscription documents, say, a prohibited redemption right that would deny the “at risk” nature of the investment, by permitting amendments to these documents rather than denying the case entirely, or, requiring a refiling and payment of a duplicate filing fee. 
  • Take into account and adjust for the foreseeable impact of immigrant visa quota backlogs that artificially change the measuring period in which the jobs per EB-5 investor must be created and prolong project liquidation and ultimate distributions to EB-5 investors beyond the prevalent five year holding period. The caller also suggested that the measuring periods for the I-526 approval (2-1/2 years) and the I-829 approval (up to 3 years) need to be reconciled. 
  • Revise the current Targeted Employment Area (TEA) concept involving discrete areas within counties as determined by state officials into a regional TEA principle based on the recognition that “where jobs are created [is] not necessarily where people live.” Also, extend TEA designation authority to all U.S. territories and to federally recognized Indian nations. 
  • The validity of a TEA determination should also be extended beyond the one-year period currently permitted. 
  • Reconsider the Tenant Occupancy concept so that retained jobs are considered acceptable. 
  • Make clear that the EB-5 program as provided by statute is only concerned with the fact that jobs are created and not with the duration of jobs once they have been created. 
  • Allow investors to port an approved project to a different regional center in case an existing regional center loses its designation.
  • Create an administrative presumption that the infusion of investment funds would create a presumed number of jobs or use more flexibility in accepting job-creation methodology.
  • Change the definition of how net losses are determined for a troubled business by moving away from Generally Accepted Accounting Principles (GAAP) which are prohibitively expensive to document for small businesses because GAAP will be phased out in favor of international financial reporting standards.
  • Clarify that investors in a direct EB-5 project who receive a salary are not necessarily receiving a redemption or return of their investment.
  • Allow investors whose I-824 petition for removal of conditions USCIS has denied to file motions to reconsider and/or reopen (MTRs) with the regional service center and appeal to the USCIS Administrative Appeals Office (AAO) rather than require immediate referral to an immigration judge at a removal hearing.  The caller noted that the immigration courts are backlogged for months or years, thus leaving the conditional permanent resident in a legal limbo for an inordinate period.  The caller could have also noted that the regional service centers and the AAO presumably would have more time and greater expertise in EB-5 issues than the Immigration and Customs Enforcement Trial Attorneys and the Immigration Judges who deal with a plethora of other immigration factual and legal issues in removal proceedings.  The caller could also have observed that, since the issues at the I-824 stage often involve a regional center, the center should likewise have the right to file an MTR or an AAO appeal.

Investor Protections and Anti-Fraud Measures

Various callers expressed concern about the need to stem fraud and enhance the protection of EB-5 investors, urging the adoption of specific regulations:

  • Hold regional centers liable for misrepresentations by overseas brokers and require the centers to maintain and monitor marketing materials.
  • Monitor changes and amendments to governing subscription and operating documents and allow investors to object in writing to USCIS.
  • Extend the same benefit of counting indirectly created jobs accorded regional centers to direct EB-5 investors.
  • Require USCIS to mount an investor education initiative through U.S. embassies and consular posts and to release more regional center performance data and approval/denial outcomes. One caller, however, expressed concern that release of such data would likely be misleading because of the widespread “rent-a-regional-center” practice, and because some approvals have led to projects that failed. Investors should be encouraged to investigate the project rather than the regional center.  Regional center metrics would not address that issue. The caller also worried that new and more innovative regional centers would likely lose out in investor attention to long-established centers.  
  • Verify source of funds documentation by the issuing bank or other authority rather than accepting such documentation at face value. 
  • Provide a remedy for investors who are victims of fraud in cases where the I-526 is approved and the investor has become a conditional permanent resident (assuming that the invested funds have been lost or depleted and investors lack the financial ability to invest in another regional center).
  • Instructions to EB-5 forms should outline the most common types of requests for additional evidence to help investors and the regional centers submit information likely to lead to approval and project success.  The forms, another caller noted, should not request burdensome and irrelevant information.

Processing times, Rulemaking Process and Adjudication Procedures

Many callers expressed process concerns:

  • Allow the use of the Premium Processing Service to speed all adjudications and create sufficient funds to ensure and enhance program integrity.  Faster adjudications winnow out weak projects and facilitate the success of projects with solid prospects by leading to the speedier release of escrowed funds.
  • Charge a substantial annual regional center recertification fee to weed out inactive centers and help investors more readily identify successful centers and projects.
  • Institutionalize the informal process of email clarification of specific issues of concern in lieu of issuing long and burdensome requests for additional evidence.
  • Give priority adjudication processing to investors in the U.S. on work visas.
  • Once a set number of approvals of I-526s have been issued, e.g., three approvals, expedite the adjudication of all similar cases for investors in the same project.
  • Maintain the integrity of USCIS published processing times by publishing actual rather than targeted processing times.
  • Expedite I-924 adjudications for regional centers seeking to expand into contiguous areas to enhance investor confidence that a new project in an adjoining area will be approved.

* * *

As can be seen, USCIS has much to digest from the Listening Session’s cornucopia of proposed changes.  As two callers urged, however, USCIS should not rush to publish proposed rules without first engaging in the kind of “iterative process” or sounding out of concepts and lines of thinking with the stakeholder community — just as occurred with the May 30, 2013 policy memorandum — a document largely praised as providing practical and clear adjudication guidance.

Waiting in the Wings: A New Leader at the Immigration Helm

Posted in Congress on Immigration, Democrats on Immigration, EB-5, GOP on Immigration, Immigration Law Complexity, Immigration Reform, Immigration Regulations, L-1 Visa, Obama Administration on Immigration, USCIS

The dysfunctional immigration world continues to spin dangerously out of control. 

Do-nothing House Republicans (and five pusillanimous Democrats) commit political seppuku with the passage of the ENFORCE Act  – a going-nowhere bill which would authorize civil suits against the President to dissuade him from doing something to husband scarce prosecutorial resources and ameliorate the harsh consequences of deportation for noncriminal violators of immigration regulations.  As Rep. Luis Gutiérrez reminds us, prominent Republican House leaders advocated for the exercise of presidential authority and prosecutorial discretion before they turned against it — the only difference being that this time they cannot suffer the insufferable, namely, that it be used by President Obama.

For their part, House Dems file a discharge petition seeking a vote on the Senate-passed comprehensive immigration reform bill, S. 744, while Minority Leader Nancy Pelosi admits that the votes are not there to prevail, thus making the effort look like a stunt pursued for political advantage. 

Provocateur Ann Coulter spews anti-immigration vitriol at the gathering known as CPAC, the Conservative Political Action Conference, as she attacked “MSNBC, where they are celebrating the browning of America,” compared immigration reform to “rape,” claimed that immigrants would upend the Social Security and Medicare programs, and espoused vigilantism (“If you pass amnesty, that’s it. It’s over, and then we organize the death squads for the people who wrecked America”).

Elsewhere in the land, activists for comprehensive immigration reform fast, while undocumented immigrants are denied bar licenses in Florida, but allowed to practice law in California.

Meanwhile, a U.S. citizen child must travel to Rome for a visit with Pope Francis — a true friend of legal immigration — and gains the release of her dad from immigration detention. This happens just before the President and the Pope meet to discuss immigration, an act that would perhaps be more meaningful had the Obama Administration, in releasing its proposed FY 2015 budget, not reflected conflicting priorities and the malapportionment of heavier spending on immigration enforcement than on benefits and immigrant integration.

All this time, U.S. Citizenship and Immigration Services (USCIS) has continued since December to make do without a permanent leader.  Following the departure of Alejandro Mayorkas, the erstwhile and accomplished USCIS Director, appointed to serve as Deputy Secretary of Homeland Security, an acting director, career officer Lori Scialabba, has served as its interim leader and caretaker. While this beleaguered agency with a huge and hugely important mission and long-endemic problems has shown spunk and commendable results in some areas, such as public engagement, a new online “e-Request” form for simple-problem resolution, and the EB-5 immigrant-investor domain, growing problems only proliferate.

leonrodriguez.jpgThe President’s nominee as new USCIS Director, Leon Rodriguez, a seasoned federal prosecutor and Director of the Office for Civil Rights of the Department of Health and Human Services, may be recommended on April 3 in an Executive Business Meeting of the Senate Judiciary Committee.

Mr. Rodriguez, whose “grandparents fled anti-Semitism and poverty in Turkey and Poland in the late teens and early 20’s to come to Cuba where [his] parents were born,” only later to seek refuge from the Castro regime in the U.S., has offered tantalizing insights into how, if approved by the Senate, he might tackle the daunting job of USCIS Director, especially in reply to Sen. Grassley’s queries. 

In written answers to various Senators’ questions, he reaffirms his belief in the proper use of prosecutorial discretion and the need to protect internal agency whistleblowers from retaliation, agrees to meet with union representatives of USCIS employees, expresses support for recent USCIS reforms of the EB-5 program and states that in limited circumstances it is incumbent upon the USCIS Director to intervene in a pending case when the “outcome of adjudication is wrong, or when adjudication may present a legal, factual, or policy issue of broad application.”

Unfortunately, the Senators’ written questions to Mr. Rodriguez ignored many problems and challenges facing USCIS.

One of the most pressing is the L-1 intracompany-transferee visa category and the ever mounting rates of denials by USCIS of  employer petitions seeking L-1B “specialized-knowledge” workers.  As reported in the latest USCIS dataset (released through a Freedom of Immigration Act request by the American Immigration Lawyers Association), although as recently as FY 2006 the agency denied only 6% of L-1B petitions, rejections for lack of specialized knowledge jumped to 34% in FY 2013, after accelerating to 30% in FY 2012 – a five-fold increase in the denial rate even though the agency has not published any new regulation changing the adjudication standard. In a press release accompanying its recent report (““L-1 Denial Rates for High Skill Foreign Nationals Continue to Increase”), the National Foundation for American Policy (NFAP) observed:

Denial rates for L-1B petitions increased in FY 2012 and FY 2013 – after U.S. Citizenship and Immigration Services officials pledged in early 2012 to develop new proposed guidance, for public review and comment, in order to update and modernize the understanding of the specialized knowledge definition. The new proposed guidance never materialized and, in the eyes of employers and their attorneys, the situation has continued to provide inconsistent decision-making and the high levels of denials and Requests for Evidence have continued in the past two years.

The NFAP also noted an alarming nationality-based trend in L-1B denials adversely affecting Indian citizens (a pattern also observed and critiqued in this blog):

Based on an NFAP examination of data for FY 2011 and earlier, it appears much of the increase in the denial rate has been focused on Indian nationals. U.S. Citizenship and Immigration Services denied more new L-1B petitions for Indians in FY 2009 (1,640) than in the previous 9 fiscal years combined (1,341 denials between FY 2000 and FY 2008). In FY 2009, the denial rate of new L-1B petitions for Indians increased to 22.5 percent even though there had been no change in the regulations. In contrast, for Canada, the UK, China and other countries the denial rate in FY 2009 ranged from 2.9 to 5.9 percent for new L-1B petitions. USCIS did not release country-specific data for FY 2012 and FY 2013 but interviews with employers and attorneys indicate the problems with receiving approvals for L-1B petitions involving Indian nationals have continued.

The agency has not offered an explanation of the deterioration in L-1B approval rates or the harsher and disfavored screening of petitions for Indian workers.  Could this be a form of “taking-the-law-into-your-own-hands” in the face of perceived loss of IT jobs by U.S. workers?  Is it an off-the-shelf government a la Oliver North?  Or, is there “a bias [because] there is a sentiment that Indians are taking away American jobs“? 

Only a permanent and reform-minded USCIS Director, ushered forcefully through the Senate, even if Democrats are forced to deploy the “Nuclear Option,” would have the clout to address this disturbing trend in lawless adjudication.  Only an outsider with legal background sufficient to master the complexities of the Immigration and Nationality Act and a history of facing and overcoming entrenched bureaucratic lethargy and resistance, could fix the many daunting challenges still unaddressed at USCIS.  Let’s hope that Mr. Rodriguez is just such an individual and that his nomination is swiftly approved.

Senator’s Saucy Request Roils EB-5 Regional Centers

Posted in Congress on Immigration, EB-5, GOP on Immigration, Immigration Lawyers, Investor Immigration, Obama Administration on Immigration

Business man hushing.jpgImagine you’re the general counsel of Coca Cola (or of any other company that takes great pains to safeguard the internal secrets that endow the organization with competitive advantages over other firms in the same industry).  On your desk lands a letter from a U.S. senator in the minority party asking that your company turn over “voluntarily” a raft of legitimately sought business information as well as sensitive business secrets (in the case of Coke it would be its secret formula).

What do you do?

This is the dilemma faced by America’s EB-5 regional centers — organizations approved by U.S. Citizenship and Immigration Services (USCIS) to accept $500,000 or $1 million from foreign investors, each of whom hopes to create 10 full time jobs for American workers and thereby obtain a green card.  The senator in question is Tom Coburn, M.D., whose “oversight efforts,” he maintains, “are meant to shed light on various challenges facing the federal government that should be addressed by agency management and congressional oversight.”

A conceptual successor to Sen. William Proxmire, who until retirement in 1988, released his “Golden Fleece Award,” Sen. Coburn publishes “Wastebook,” which highlights what he asserts reflect the “Most Egregious Spending of 2013.”

Sen. Coburn, the Ranking Member of the Senate’s Homeland Security and Governmental Affairs Committee, has apparently issued to every one of the 440 USCIS-approved Regional Centers a letter seeking a reply by March 7, 2014 responding to each of the items below:  

• Any approval from USCIS to participate in the EB-5 program regarding the regional center and its business plan, including any subsequent recertification;

• The total annual amount of investment and the number of individuals by country of origin making investments through the regional center since it has been in operation;

• The name, address, and a description of each business in which the regional center has made an investment of funds and the number of jobs created by each investment;

• Any fees charged to EB-5 applicants or received by the regional center, including amount and description;

• A list of any current or former corporate officers of the regional center, including title, position, and dates of employment, and

• The name and address of any individual or entity — either foreign or domestic — that the regional center has an agreement with to provide legal, accounting, recruiting or consulting services, as well as a description of the service provided.

The letter comes as little surprise to close watchers of the EB-5 scene, particularly observers who paid attention to the Senate debate ultimately leading to the approval of President Obama’s nomination of the former USCIS director, Alejandro Mayorkas, to serve as Deputy Secretary of the Department of Homeland Security (DHS).  In seven pages of dense, three-column text published on December 20, 2013 in the Congressional Record (pp. S9072-S9079), the EB-5 regional center program figured more prominently than any other subject managed by Director Mayorkas during his four-year term at USCIS.  In the course of debate Republicans claimed that whistleblower complaints alleging improper intervention by Mr. Mayorkas into an EB-5 regional center adjudication, which triggered a long-simmering investigation by the DHS Office of Inspector General, should be concluded before a vote on the nomination.  For his part, Mr. Mayorkas denied the allegations, testifying at an earlier committee hearing that he made the decision to approve the regional-center designation request solely based on the facts and the law.  Democrats argued that the OIG investigation had become politicized and had produced no credible evidence of wrongdoing by Mr. Mayorkas.

Recognizing that the Mayorkas nomination would be approved by the majority party, Sen. Coburn nonetheless urged postponement of the vote:    

We should wait for this investigation to be completed. I know we are not going to; we are going to roll this right through here. It is a disservice to Mr. Mayorkas. It is a disservice to the American people. It is a disservice to this body. All that I have heard from people who know Mr. Mayorkas are positive things. It is positive, but a legitimate investigation is ongoing.

Undeterred by the approval of the Mayorkas nomination, Sen. Coburn apparently has determined that he will go directly to the source, circumvent USCIS and the DHS OIG, and seek extensive information from every approved regional center as well as from its trade group, the Association to Invest In the USA (IIUSA).  

While regional centers might consider ignoring the request, coming as it does from a single senator of the minority party, that path is fraught with risk.  Yet, voluntarily complying is also risky.  Sen. Coburn’s letter offers no assurance that the information provided — much of which may be viewed as proprietary and a trade secret — will be treated in confidence.  This is unlike similar information submitted to USCIS when filing a request for designation as a regional center, or when providing updated information on an annual basis on Form I-924A.  As the IIUSA reported in its Feb. 20 reply to Sen. Coburn:

It is important to note that our members may consider specific information included on Form I-924A to be proprietary and confidential, and to our knowledge USCIS has treated it so in responding to Freedom of Information Act (FOIA) requests for it.

Indeed, FOIA (5 U.S. Code § 552(b)(4)), expressly exempts from disclosure to third parties information submitted to Executive Branch departments and agencies that are “trade secrets and commercial or financial information obtained from a person and privileged or confidential [information].”  in turn, Presidential Executive Order 12,600 provides for pre-disclosure notice and an opportunity to object if an individual or business submits “confidential commercial information” to a federal agency and a third party requests it under FOIA.

Some may wonder why regional centers are concerned.  After all, the thinking goes, it comes with the territory, when dealing with a government program, that requests for data and documents ought be expected.  Aside from the lack of FOIA protection or other assurance of confidentiality from Sen. Coburn, the requests he makes involve clearly competitive data that may make it materially more difficult for one regional center among 440 others to attract qualified foreign investors.  His request asks for such internal, sensitive data as a regional center’s “business plans,” and a listing of the parties with which it conducts its business (including law firms), together with a “description of the service provided” — a subject that could well involve attorney-client privileged information.  Moreover, were these parties to be identified, presumably other regional centers might seek out their finite services as well, and thus impair their ability to serve existing center clients.  Why should Sen. Coburn, even if unwittingly, allow one regional center to leverage and exploit competitive commercial information amassed by another center?

Even more disturbing, the Senator’s request comes at an unhelpful time when — as reports of the latest Stakeholder Engagement of February 26, 2014 confirm — USCIS has moved aggressively to strengthen and improve the EB-5 program by increasing security concerns, program integrity, predictability and transparency.

Sen. Coburn’s request also may undermine the robust economic benefits that the EB-5 program has spawned if current and prospective regional centers conclude that participation in the EB-5 is unwise because it will result in the sharing of competitive secrets with third parties.  A FY2012 study by IMPLAN Group, LLC – the originators of the widely accepted IMpact PLANning (“IMPLAN”) econometric model which measures and forecasts economic impact  – found in peer-reviewed studies vetted by university economists associated with the Association for University Business Economic Research (AUBER) that the EB-5 program produced an economic impact which has increased dramatically over the prior two years.  IMPLAN’s FY 2012 study found that the EB-5 program had contributed more than $3.39 billion to U.S. GDP, supported over 42,000 U.S. jobs, and generated over $712 million in federal/state/local tax revenue.

While Sen. Coburn certainly is not prohibited from asking for information on the EB-5 program, he should temper his use of the requested information with a measure of caution and prudence. One especially helpful step he could take would be to assure all regional centers that he will exercise restraint and refrain from releasing confidential competitive information which would needlessly harm law-abiding regional centers that are doing precisely what Congress intended, namely, helping to create much-needed American jobs through the prudent use and management of foreign investors’ funds.

EB-5 Immigration Lawyers Wear Too Many Hats

Posted in EB-5, Immigration Lawyers, Legal Representation

Hats 2.jpgThe EB-5 employment-creation immigrant investor visa category continues to transcend its chutes-and-ladders early history.  This 24-year-old program — like many young adults of the same era — seems at last to be maturing in healthy ways.  Foreign investors have become more savvy.  Regulators are more attuned to the need for greater investor protection, as well as clear, consistently enforced rules and predictable adjudicative outcomes (including swift justice for law violators).  Seasoned dealmakers and developers, accustomed to raising substantial project capital from private equity markets, are now entering the field and bringing with them a set of industry practices that include robust law compliance as an inherent element of the fundraising business model.

Yet one practice lingers.  Immigration lawyers continue to wear too many hats.  The Bible and law school teach that serving two (or more) masters is a recipe for trouble.  So why then do so many reputable immigration lawyers think they can simultaneously represent the investor, the regional center and the project developers all in the same EB-5 transaction (while possibly also receiving finder’s or consulting fees on the side for procuring investors)?

The answers are only partly governmental.

U.S. Citizenship and Immigration Services (USCIS) and the State Department perpetuate the practice by allowing only one lawyer to submit a Form G-28 (notice of entry of appearance of attorney) in any given EB-5 benefits request, whether that be the request for approval of a regional center (Form I-924), the request for amendment of a regional center designation (Form I-924A), the EB-5 investor’s petition seeking classification as a conditional permanent resident (Form I-526), the application to register permanent residence or adjust status to conditional permanent resident (Form I-485), the immigrant visa application (Form DS-230), or the investor’s petition to remove conditions on residence (Form I-829). 

This governmental practice is unhealthy and unnatural.  Most federal agencies outside of the immigration world recognize that parties with distinct legal interests to protect deserve to be heard and represented by the respective legal counsel of their choice.  The Securities and Exchange Commission, for example, would never mandate or likely countenance that an investor’s counsel represent the interests of an issuer of securities, or vice-versa. Indeed, the adversarial system of justice is founded on the principle that the truth will out and justice will best prevail when conflicts of interest are minimized and each party to a controversy exercises the right to present evidence and legal argument in support of a particular position asserted before a neutral fact-finder/judge determining the truth and deciding on the correct legal outcome.   Not so, the immigration bureaucracy.  As I’ve blogged before, the government needs to stop forcing members of the bar and the several “publics” they serve to rely on only one lawyer to carry the legal water in a single immigration case where several distinct interests hang in the balance.

But archaic immigration rules don’t really explain why EB-5 lawyers practicing immigration law too often tend to represent multiple parties. Immigration attorneys can readily serve distinct parties in an EB-5 case quite well by developing lawful work-arounds through multi-counsel collaboration agreements. Thus, the immigration attorney representing the project or the regional center, with client consent, can provide to investor’s counsel submitting the Form I-526 or Form I-829 all of the deal- or project-related documents and data needed to establish eligibility for the particular immigration benefit sought.  Moreover, investor’s counsel, likewise with client consent, can and usually does undertake to provide the immigration lawyer representing the project or the regional center with timely notice and copies of all petition filings and any USCIS request for additional evidence, notice of intention to revoke petition approval or final decisions in a particular EB-5 investor’s petition.   Similarly, immigration deal counsel or regional center counsel can and should provide the immigrant investor’s counsel with any USCIS actions or correspondence involving regional-center designation or amendment.

So why then do immigration counsel wear so many EB-5 hats?  Is it some misguided paternalism (the desire to make sure all parts of the process are controlled by a single, control-freak lawyer/strategist)?  Is it a belief that the EB-5 project and its attendant investors are best served by the perceived efficiency and cost efficacy of using only one immigration lawyer or firm?  Or is it merely bottomed on a rapacious desire to squeeze out the largest dollar value of legal fees from each and every EB-5 deal?

I disclaim any clairvoyant ability to read the hearts and minds of my colleagues and thereby discern their underlying motivation for embracing joint client representation.  Instead, my purpose in posting is merely to suggest that multi-party immigration representation in EB-5 cases is foolhardy and dangerous.

If a deal fails, if EB-5 benefits are not achieved, or if one or more EB-5 investors fail(s) to receive green cards because too few jobs are created, then — as sure as the night follows the day  — disappointed and disgruntled parties will engage successor counsel to point the finger of blame at whomsoever has pockets that seem deep enough to pay amends and thereby effectuate some form of retributive economic justice. (For more on this topic, check out an article co-authored by securities lawyers, Gregory L. White and Mark Katzoff, and me, “Hot Topics in EB-5 Financings,” published in Forming and Operating an EB-5 Regional Center: A Guide for Developers and Business Innovators (ILW, 2014; Eds., L. Batya Schwartz Ehrens and Angelo A. Paparelli). Even if the multiple-fingers-in-multiple-pies immigration lawyer somehow prevails after all the finger-pointing exercises have been resolved, the process of deposition, discovery, settlement or trial will be enervating.

So, my esteemed and beloved colleagues, it is folly to think that your artfully crafted disclosures and mutual consents to joint representation will withstand close scrutiny and protect you.  

Instead, just say no! Don’t ever agree to represent more than a single party (or perhaps at most a class of similarly situated investors) in any multi-party EB-5 transaction, whether it be a pooled investment involving direct job creation, or a syndicated investment made through a regional center.  In my own case, the need for blissful sleep (and retention of my bar license) compel me to choose sides.  I shall only represent the project or the regional center in any syndicated investment (prospective client referrals without referral fees paid are gladly accepted) and I’ll look to my many talented sisters and brothers at the bar to represent the interests of the investor(s). 

We can do this together while practicing separately — that is, by each of us undertaking to represent only one party in any pooled EB-5 investment.   

Immigration Voices: “What the ‘L’ is Going on with USCIS?”

Posted in Employment-Based Immigration, L-1 Visa, USCIS

Frustrated woman.jpg[Bloggers Note:  Today's guest column comes from noted Atlanta-based business immigration lawyer, Eileen M.G. Scofield, who addresses a subject covered often before on NationOfImmigrators, the business-critical L-1 Intracompany Transferee visa category. (See, e.g., "The L-1 Intracompany Transferee Visa Facing Attack -- from All Branches of the Federal Government, Part I and Part II.  Eileen and I, together with Miami immigration attorney, Jeffrey A. Bernstein, will speak later this week on "Surviving the 'L' Landscape" at the 35th Annual Immigration Law Update South Beach, hosted by the South Florida Chapter of the American Immigration Lawyers Association. Although her article is written for an  immigration-attorney audience, it offers a useful background and fresh insights and practice pointers helpful to all readers. Note the image to the right is not Eileen Scofield; rather it depicts a frustrated individual whose level of obvious stress and angst mirrors that of the L-1 stakeholder community.]

What the “L” is Going on with USCIS?

By Eileen M.G. Scofield

 Introduction

L-1 filings were once familiar territory.  The statute and regulations provided a useful roadmap, and practitioners were soon comfortable navigating it with ease and efficiency.

As more experienced L-1 visa practitioners know, changes in the L-1 process in recent years necessitate changes in the way we approach the L-1 process.  Whereas the familiar guide provided by statutory, regulatory and judicial law was once sufficient; recent regulatory and policy changes have laid landmines, dug potholes, and strewn debris across the road, causing even the most experienced traveler to require a careful trek.  In order to survive the journey on this once-familiar landscape, now we m we must also pay attention to issues related to national security, fraud, politics, economics, various administrative directives, internal agency guidance into the L-1 diet in order to survive.

In light of these many issues, all practitioners need to revisit how they draft L-1 petitions, and as well, what they seek from the petitioner and beneficiary in the course of advising on L-1 petitions. And while the filing location and/or the A or B classification was often not in need of extensive analysis, in today’s environment, it is. Recent procedural changes at USCIS make the Request for Additional Evidence (“RFE”) more of an exception than a rule.  And once filed and approved, what later issues should be anticipated. While this discussion will focus overall on Service Center Based Filings, the overall guidance might add value to other filings as well.

By way of reference, this discussion focuses on changes in USCIS policy as they apply to L-1B petitions.  However, the same principals also affect L-1A filings as well.  The practice pointers in particular can easily be reworked to apply to L-1A specific concepts.

Upheavals in the L-1 Landscape: Changes Abound, Denials Increase, “New” Rules Appear – What Happened to L?   

On October 9, 2012, USCIS and AILA discussed a number of issues including the adjudication of L-1B visa petitions.[1]  There were two questions and answers on the agenda regarding adjudications of L-1B nonimmigrant visa petitions. One dealt with L-1B specialized knowledge in general, and the other focused on the significant impact on “new office” situations. Here is the question that was raised:

Question 6f: Statistics released by USCIS and a recent study by the National Foundation for American Policy[2] have shown that the rates of requests for evidence and denials for petitions in the L-1B classification have increased dramatically and that the standard for what qualifies under the L-1B classification has been severely limited (AILA Doc. Nos. 12082954 & 12020964). This has been a particular burden on new and emerging companies in the U.S. The increase in requests for evidence and denials has happened even as practitioners have been overly cautious in recommending the l-1B classification to their clients. On January 24, 2012, AILA submitted a memorandum to USCIS on the current interpretation of “specialized knowledge” (AILA Doc. No. 12012560). Please update us on USCIS’ review of the memorandum and on the long-promised L-1B memorandum. (Policy)

Response: USCIS continues to review the issues related to the interpretation of “specialized knowledge,” and is considering AILA’s memorandum of January 24, 2012 as part of this review.[3]

The February 2012 NFAP Policy Brief cited by AILA provided an analysis of data that revealed high denial rates for L-1 and H-1B petitions at the USCIS. NFAP surmised that the increased rate of denials has resulted in harming the competitiveness of US employers and has discouraged companies from bringing new business and jobs into the United States.[4] According to NFAP’s executive summary:

[t]he evidence indicates adjudicators or others at U.S. Citizenship and Immigration Services changed the standard for approving L-1B and other petitions in recent years, beginning in FY2008 and FY 2009. If one considers that in FY 2011 63 percent of all L-1B petitions received a Request for Evidence and 27 percent were issued a denial, that means U.S. Citizenship and Immigration Services adjudicators denied or delayed between 63 percent to 90 percent of all L-1B petitions in 2011.”[5]

This change in adjudication came about without any change in law or regulations before or during this same period. It is unclear, therefore, why such a significant change in adjudicatory procedures has changed. Practitioners can only conclude the changes result from unannounced internal agency changes, which is the conclusion reached by NFAP. Further, the data analyzed by NFAP indicates that the stark increase in denials and delays is even greater for visa petition beneficiaries from India.[6] One of the results of this adjudicatory trend is a significant decrease in the number of L-1 visa petition filings with the USCIS Service Centers.[7]

A review of recent RFEs and denials issued by the USCIS shows that the current theme in L-1 adjudications follows the following principles:

  1. Qualifying experience

One year of experience with the foreign company within three years of transfer to the United States is no longer sufficient, despite statutory and regulatory language indicating otherwise.[8] For one company, three denials with the following similar language were issued: “In this case, the beneficiary has only been working with your organization since July 2010 and the petition was filed on August 2012.” In the fourth case, where the individual had been employed for four years, this sentence was not included.

  1. What is “special knowledge”?

Under the INA, “an alien is considered to be serving in a capacity involving specialized knowledge with respect to a company if the alien has a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company.[9] The regulations further define the term as “special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.[10]

            These same denials included the following paragraph:

While there is no requirement that an L-1B specialized knowledge employee possess proprietary knowledge of your company’s processes and methodologies, you state in your petition that the beneficiary here is familiar with them. There is no indication in the record however whether others in the field could obtain such knowledge in sufficient time so as not to cause a disruption or interruption of your business operations. If such company-specific knowledge is easily transferable to, or obtainable by, other dynamic decision making turnkey solutions professionals in the field without causing disruption to your business, this is a strong indicator that the knowledge in question is not special or advanced.  By contrast, had a beneficiary been responsible for the development of your proprietary tools, processes, and methodologies, not being able to obtain that person’s services might in fact result in a significant disruption to your business.

This interpretation is that only if the individual was directly responsible for the development of the proprietary tools, processes, and methodologies would that person be possibly qualified for an intracompany transfer. This removes from consideration key employees who were perhaps not involved in the design and development but have significant experience in applying the principles and techniques as part of a service organization and who are in the better position than the actual designer to deploy the product and/or service. Nowhere in the statute nor in the regulations does it at all indicate that entire classifications of employees are forestalled from being considered for L-1B transfers. It is also noteworthy that in issuing the denials, the USCIS examiner also took pains to note that — because the proposed positions fall within one of the occupations listed in the Department of Labor’s Occupational Outlook Handbook (OOH) — there was insufficient evidence to determine whether the position of Senior Quality Assurance Engineer involved “a special or advanced level of knowledge in the dynamic decision making turnkey solutions field or related occupation.”

3.         Managerial Capacity

In the L-1A field, recent RFE experience shows that USCIS is focusing heavily on organizational substructures.  No longer do examiners simply accept the company’s detailed description of duties.  Rather USCIS now uses a variety of means to investigate the job qualifications of both the beneficiary and his subordinates.  Examiners have been seen scoping job postings at related companies in the corporate family to determine similar requirements for positions.  Special attention has been placed on the educational qualifications for subordinate positions, with supervisory and managerial duties themselves being disregarded.

PRACTICE POINTER: Dealing within the current legislative framework?

  1. Advise petitioners that one year of qualifying employment with the foreign entity may be insufficient.
  2. If the individual beneficiary was not the key developer of a particular proprietary technology, methodology, or business program, then USCIS may find that the individual does not have specialized knowledge. (And further, even a demonstration that the beneficiary did play such a lead role will not guarantee approval of an L-1 visa petition.)
  3. Describe the individual’s experience with the organization in such a way as to outline why his or her experience is different not only from those in the U.S. labor market, but also from other employees within the sponsoring organization. USCIS often cites to Webster’s New College Dictionary to define “special.” Practitioners are on notice to do the same.  This same principal applies to other terms as well.
  4. Explain why the experience could only have been gained through employment within the organization. Focus on the petitioner’s products and methodologies and their applications. Give special care if the individual is using other company’s products and technologies to explain how the use, methods, procedures, etc. tie into the sponsoring petitioner’s business. This is also true if the employee will be deploying a product to an end-client Focus on the petitioner’s business, not the client’s business.
  5. Work with the petitioner to specify the nature of the claimed special knowledge. Focus on why it is necessary to have this special knowledge to perform the duties of the U.S. position, and outline how the special knowledge was gained.
  6. If the position can be classified as a standard occupation that may be listed by the DOL in its Occupational Outlook Handbook, then explain why the sponsored position is not simply identical to the standard occupational role. Differentiate the sponsored position from the standard job description, so that USCIS understands that others in the occupation would not have the same level of knowledge and expertise as the beneficiary.
  7. How is the work currently being handled without this individual? If this is a new role or need, explain why. If the L-1B nonimmigrant’s transfer to the United States will result in more job opportunities in the United States, make this explicit in the support letter.
  8. Salary matters. If the employee is key to the organization, he or she should be compensated as such. Despite the fact that there is no per se wage requirement, be wary of low wage offers being sponsored for L-1B visa status.
  9. What is the financial implication of the transfer? What happens if the individual is not granted the L-1B? What happens to the business?

10.  Given the current L-1B adjudication trends, consider filing an H-1B visa petition or any other category that maybe available.

11.  If filing an L-1A petition, pay careful attention to the organizational chart.  USCIS puts special focus on these charts and expects to see each subordinate carefully detailed.  The more detail the chart can show regarding the duties and qualifications of subordinates, the easier the RFE response will be.

12.  Be careful to include evidence that subordinates have bachelors degrees and that these are required to perform the duties.  USCIS tends to define “professional” as meaning “in possession of a bachelors degree” and tends to ignore supervisory or managerial duties of subordinates.   Be clear in the petition exactly what type of role each subordinate is filling, and if that is not a so-called “professional” position, make it clear that the person is a supervisor or manager and thus “professional” status is not required.

13.  Review the job duties of each subordinate employee and flag job postings within the company and other members of the corporate family that have similar positions.  Ensure that the qualifications for these positions qualify under the USCIS definition of “professional” or consider restricting access to these postings until after the filing.

Practice Pointers: Draft your own map

One major issue with L-1 filings is a lack of clarity as to what USCIS is looking for.  If allowed to set the parameters of their review, USCIS inevitably comes up with undefined standards and uses them as an excuse to deny valid petitions.  The problem is that the L-1 landscape they have created has no formal roadmap.  Often, the best solution is to provide them with a map to follow.  As with the above, the following is an example regarding specialized knowledge, but the same principles of immigration cartography can also apply to a variety of standards the government seems to want to view as nebulous.

It often seems as if the USCIS position on what qualifies as specialized knowledge boils down to the “I know it when I see it” standard.  If you combine this with not bothering to read what is submitted in a petition, then the adjudicator never has to “see it” at all.  

Present USCIS practice is simply to redefine the rules by making “specialized knowledge” something indefinable, or unattainable, then it can sometimes help to remind the adjudicator of what the real rules are.  The following is an example of how you may be able to do this.  It may not avoid the RFE, and it may not even help to win on the RFE, but then again it might.  And it also helps to lay a foundation for appeal or litigation if your client is so inclined.  So with that, we suggest that you may want to include some or all of the following in your petition or RFE response.

Specialized Knowledge

It appears from the request for additional evidence (RFE) that, notwithstanding the detailed explanation of the beneficiary’s qualifying experience and proposed duties that we provided with the petition, your office needs additional evidence showing that the beneficiary possesses specialized knowledge and that her proposed duties require specialized knowledge.   We trust that the following will satisfy that request, and that it will establish by a preponderance of the evidence that the beneficiary qualifies for L-1B classification.

 

The starting point for the definition of “specialized knowledge” is the Immigration and Nationality Act (INA) and the regulations governing the statutory language.  Under section 101(a)(15)(L) of the INA, in order to qualify for L-1B status, a foreign national’s position must “involve specialized knowledge.”  The regulations at 8 CFR Section 214.2(l)(ii)(D), explain:

 

“Specialized knowledge means special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.” (emphasis added).

 

This explanation was further defined in a March 9, 1994 Guidance Memorandum from James A. Puleo, Acting Executive Associate Commissioner.  This guidance was re-affirmed in a December 20, 2002 memorandum from Fujie Ohata, Associate Commissioner for Service Center Operations. In his memo, Mr. Puleo stated in part (emphasis added):

The current definition of specialized knowledge contains two separate criteria.

***

The statute states that the alien has specialized knowledge if he/she has special knowledge of the company product and its application in international markets, or has an advanced level of knowledge of the processes and procedures of the company.

***

Webster’s II New Riverside University Dictionary defines the term “special” as “surpassing the usual; distinct among others of a kind.” Also Webster’s Third New International Dictionary defines the term “special” as “distinguished by some unusual quality; uncommon; noteworthy.”

Based on the above definition, an alien would possess specialized knowledge if it was shown that the knowledge is different from that generally found in the particular industry.  The knowledge need not be proprietary or unique, but it must be different or uncommon.

Further, Webster’s II New Riverside University Dictionary defines the term “advanced” as highly developed or complex; at a higher level than others.  Also, Webster’s Third New International Dictionary defines the term “advanced” as “beyond the elementary or introductory; greatly developed beyond the initial stage.”

Again, based on the above definition, the alien’s knowledge need not be proprietary or unique, merely advanced.  Further, the statute does not require that the advanced knowledge be narrowly held throughout the company, only that the knowledge be advanced.

* * *

There is no requirement in current legislation that the alien’s knowledge be unique, proprietary, or not commonly found in the United States labor market.

Mr. Puleo’s memorandum goes on to set forth some of the characteristics of a specialized knowledge employee, but specifically states that these are not “all inclusive.”  They include:

  • Possesses knowledge that is valuable to the employer’s competitiveness in the marketplace;
  • Is qualified to contribute to the U.S. employer’s knowledge of foreign operating conditions;
  • Has been utilized abroad in a capacity involving significant assignments which have enhanced the employer’s productivity, competitiveness, image or financial position;
  • Possesses knowledge which normally can be gained only through prior experience with the employer;
  • Possesses knowledge of a product or process which cannot be easily transferred or taught to another individual.

We note as well that the controlling regulations and the subsequent interpretation and application of those regulations as referenced above follow passage of the Immigration Act of 1990 (IMMACT), which was enacted in part to overturn a handful of conflicting agency decisions that occurred prior to passage of IMMACT.   Those decisions, some of which were designated as precedent decisions at the time, are now largely irrelevant in light of the passage of IMMACT.  Of particular significance to the pending petition, IMMACT Section 206(a) added the following language to 8 U.S.C. §1184(c): 

 ”(B) For purposes of section 101(a)(15)(L), an alien is considered to be serving in a capacity involving specialized knowledge with respect to a company if the alien has a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company. (emphasis added.)

The regulations at 8 CFR §214.2(l)(ii)(D), that were enacted following passage of IMMACT remain in force today, and clarify that:

Specialized knowledge means special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures. (emphasis added).

Accordingly, the statute, the regulation, and the agency guidance referred to above make clear that there is no requirement that the knowledge be both special and advanced. 

Similarly, there is no requirement that the knowledge be special within the petitioner’s organization. In short, the controlling authority establishes that “specialized knowledge” is (1) special knowledge of the company’s product, service, research, equipment, techniques, management or other interests and their application in international markets; (2) that is different from that generally found in the particular industry, where (3) the employee possesses characteristics that are the same as or substantially similar to those identified in Mr. Puleo’s March 9, 1994 memorandum.

Based on the foregoing, we respectfully maintain that the record amply reflects the beneficiary’s specialized knowledge. 

Practice Pointer: Fault Lines and Fault-Finding

In the real world, many geographical features are set by fault lines.  They create mountains, valleys, and many other otherwise incontrovertible features.  In L-1 geography, however, sometimes USCIS will point to a feature and attempt to give it another name.  The way to deal with this is to point at their “faulty faults” and establish the true rules with argument and evidence.  In much the same way a stubborn child would do, you should consider looking at the USCIS’s determinations and statements and say “Oh yeah?  Says Who?”

Again, this example focuses on specialized knowledge, but the same principles apply to other areas as well.

USCIS sometimes avoids having to give any reasonable or rational explanation for a failure to find specialized knowledge is by rejecting your client’s statements as unreliable because they are unsubstantiated and self-serving.  As often as not, USCIS will cite Matter of Treasure Craft of California, 14 I. & N. Dec 190 (Reg. Comm. 1972), as authority for rejecting your client’s statements in support of the agency’s own self-serving outcome-oriented analysis.  Again, it may not ensure that you prevail on the RFE, but it still could prove worthwhile to point out what Treasure Craft really says, and then to argue that the petitioner’s statements satisfy the preponderance of the evidence standard:

In Matter of Treasure Craft of California, 14 I. & N. Dec 190 (Reg. Comm. 1972), the Commissioner essentially set forth three propositions in connection with considering otherwise unsubstantiated information provided by a petitioner or applicant.  Those propositions are:

  • It is proper to consider all of the facts in a visa petition proceeding in arriving at a conclusion regarding the issues;
  • The petitioner’s statement must be given due consideration; and,
  • The petitioner’s statement should be rejected only when it is contradicted by other evidence in the record of the matter under consideration.

Treasure Craft involved an H-3 trainee petition on behalf of four Mexican nationals, all of whom were already working without documentation for the petitioner.  The petitioner sought to qualify the beneficiaries as trainees in a program that would train them in various aspects of the pottery making industry, and the District Director denied the petition. The Regional Commissioner, in dismissing the petitioner’s appeal, wrote “Counsel’s argument that the petitioner need only go on record as stating that training [in making ceramic pottery] is not available outside the United States is rejected in this matter.  It is commonly known, and administrative notice is taken of the fact, that Mexico exports pottery to the United States in successful competition with United States manufacturers. ” id. at page 3 (emphasis added).  In taking administrative notice of Mexico’s healthy pottery industry, the Regional Commissioner cited evidence that called into question the petitioner’s statements, and accordingly rejected the petitioner’s unsupported, and largely unbelievable, contention that no adequate opportunities for training in ceramics fabrication existed for the beneficiaries in Mexico.  The opinion goes on to hold that,

[I]t is proper to consider all of the facts in a visa petition proceeding of this nature in arriving at a conclusion regarding the issues.  The petitioner’s statement must be given due consideration; however, this Service is not precluded from rejecting such statement when it is contradicted by other evidence in the record of the matter under consideration.

id. at page 4.  (emphasis added).  Accordingly, in the absence of evidence in the record that contradicts the petitioner’s statements, the petitioner’s assertions with respect to the specialized knowledge possessed by the beneficiary must be given “due consideration,” and should not be dismissed or discounted.  When the petitioner’s statements are accorded the evidentiary value they deserve, it becomes abundantly clear that the petitioner has established by a preponderance of the evidence that the beneficiary possesses specialized knowledge.

Landmines for the Unweary Traveler: Vulnerabilities and Potential Abuses of the L-1 Visa Program, But by Whom?

The regulatory and legislative history surrounding the L-1 visa make it clear that the purpose of the L-1 visa category is to enable employers/companies to transfer key personnel into the United States, but recent trends have reduced the ability of the employer to persuade USCIS that an employee is key. Employers are greatly enhancing the documentation provided and struggling to meet seemingly new requirements that have sprung up despite no changes in the law or regulations. Matter of Treasure Craft of California, discussed above, like certain nasty vegetables, must be known, and addressed in L-1 petitions. While terribly unfortunate that it is used as a tool to undercut the credibility of a petitioner and as well as to support the agency’s own self-serving outcome, if not aware, the surprise can be disastrous for many.

So query, what is the source of all this negativity? At a time when the research and headlines are all in support of the L-1 visa classification, and its many benefits to the U.S., it would seem the reverse course would be taken:

  • Startup Visa Could Create at Least 1.6 Million U.S. Jobs in Next 10 Years, According to Kauffman Foundation Report, February 27, 2013,Rose Levy and Barbara Pruitt, Media Contacts for Foundation;
  • Not Coming to America, Why the U.S. is Falling Behind in the Global Race for Talent, May 2012,By:  Partnership for a New American Economy
  • Q&A:  U.S. Immigration Policy and Entrepreneurship, February 28, 2013,by Rob Matheson

Today at DHS, and its many tentacles, immigration benefits are now a lower priority, preceded first by national security and fraud detection. As disclosed on February 15, 2012 by Alejandro N. Mayorkas, Director of U.S. Citizenship and Immigration Services before two House committees, anti-fraud and fraud detection are such a priority that he outlined 16 programs undertaken by USCIS related to fraud and security. In addition, in 2005, the DHS Office of Inspector General (“OIG”) sought to find and identify fraud and those factors which led to fraud in the realm of the L-1 visa category. Accordingly, OIG met with DHS program managers in Washington, DC, adjudicators and supervisors at the four service centers, consular staff at 20 of the largest L-visa issuing posts, and also employees at the Kentucky Consular Center’s Fraud Prevention Office. OIG did not apparently meet with the U.S. Chamber of Commerce, US Department of Commerce, Small Business Administration, any of the 50 plus state level business development agencies, any L-1 visa holders, or trade associations or L-1 petitioners for that matter.  In 2006 The OIG published its report wherein it determined that the L-1 program is vulnerable to abuse and fraud   for a variety of reasons, but most immediately, because:

1.         “The program allows for the transfer of managers and executives”,[11] but in 2006, after decades of use of the L-1 for manager and executives, “adjudicators find it difficult to be confident that a firm truly intends using an imported worker in such a capacity”[12];

2.         “The program allows for the transfer of workers with “specialized knowledge””[13], but in spite of the decades of use and guidance, “the term specialized knowledge is so broadly defined that adjudicators believe they have little choice but to approve almost all petitions;”[14]

3.         “The transfer of L-1 workers requires that the petitioning firm is doing business abroad”, but, in spite of the world wide web and the expediential growth in global access to data,, adjudicators now “have little ability to evaluate the substantiality of the foreign operation”[15]

4.         The program allows for start-up operations that do not yet have operations in the U.S.,[16] and even though that was the specific intent of the law, now adjudicators do not know how to process that part of the law;

5.         The program “permits petitioners to transfer themselves,”[17] and again, even though this ability, in certain circumstances, to transfer oneself to the U.S., is covered under the regulations to the adjudicators, this cannot be right.

Interesting as well, the OIG report highlights that these last two points in particular represent the “windows of opportunity” for the L-1 abuse that is occurring.[18] Also of note, the report refers always to “the program” and not to “the law”.

This L-1 based OIG report webs nicely with the recent USCIS memo wherein USCIS outlines the its definition of “fraud indicators”, petitioner with a gross annual income of less than $10 million, 25 or less employees, established within last 10 years. October 31, 2008 Internal Guidance Memo from Donald Neufeld, Acting Associate Director, Domestic Operations.  HQ 70-35.2, reprinted at AILA InfoNet Doc. No. 12052252, 5/22/12. Then too, there has been discussion that the Fraud Detection and National Security of DHS will soon investigate the use of L-1’s, and expand its investigations of the same to include site visits similar to the FDNS program for H-1B petitions which has yielded few instances of fraud.[19]

As a result of these recent trends, USCIS has added the noted additional L-1 requirements, and has also dramatically increased the use of the RFE as a tool to vet out all that “fraud” in the L-1 visa classification. As previously noted this activity has been confirmed in the National foundation for American Policy and addressed in other sources as well.[20]

A typical example of this phenomena was noted when a 45 year old company, with offices in 16 countries (manufactures, sells and services its products globally), decided that its U.S. sales required the establishment of a U.S. sales and service office. This practice has been recognized by business and immigration officials for decades.  The company elected to transfer a 60 year old Canadian national, one of its most seasoned executives, to the new U.S. subsidiary as President. The initial L-1A visa petition was finally approved for one year, but only after a 6 page RFE was issued. After the new office one year was completed, and three U.S. employees, the L-1A visa petition extension was denied, again after a juicy RFE.  USCIS concluded that because the President was also a degreed engineer, the evidence did not support a finding that the President of the company was really an executive and/or a manager.. When the company changed tactics and filed an L-1B visa petition, USCIS, then issued the next RFE seeking the following data:

1)         Describe a typical work week for the beneficiary, to include a discussion of the specialized nature of his position.

2)         Identify the manner in which the beneficiary has gained his specialized knowledge.

3)         Provide evidence showing either:

(a)        The beneficiary’s knowledge is uncommon, noteworthy, or distinguished by some unusual quality and not generally known by practitioners in the beneficiary’s field of endeavor; or

(b)        His advanced level knowledge of the processes and procedures of the company distinguish him from those with only elementary or basic knowledge. 

4)         Provide evidence to show that the knowledge possessed by the beneficiary is not general knowledge held commonly throughout the industry but that it is truly special or advanced.

5)         Indicate the minimum amount of time required to train an employee to fill the proffered position.

6)         Specify how many workers are similarly employed by your organization.

7)         Of these employees, indicate how many have received training comparable to the training administered to the beneficiary.

8)         “The purpose of the L-1B provision is to facilitate the admission of key personnel for those companies who require an employee with advanced knowledge to perform duties in the United States.  Most individuals working for a company may be considered ‘specialists’ to some degree, since they have a certain amount of training specific to their employment.  It cannot be concluded, however, that all employees who hold special knowledge qualify as ‘specialized knowledge’ workers.” Provide evidence of the advanced training and advanced knowledge.

As the law states, Section 101(a)(15)(L) provides for the admission of “an alien who, within 3 years preceding the time of his application for admission into the United States, has been employed continuously for one year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and who seeks to enter the United States temporarily in order to continue to render his services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge.”[21]

The relevant regulations define “specialized knowledge” as “special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.”[22]

Per USCIS, one with specialized knowledge is not a specialized knowledge worker. Specialized knowledge is not enough because ADVANCED specialized knowledge is required. In addition, employers must address whether another person could instead be employed in the same capacity. Nothing in the L-1 statute or the regulations lends itself to these requirements. The established law requires merely that the Beneficiary has specialized knowledge, and will be employed in a capacity that involves this specialized knowledge. It would seem that the reason the OIG notes confusion about the definition of specialized knowledge in its report, is not due to the statute, or regulations, but instead due to some adjudicators and the RFE template language produced by USCIS.  

The manner in which Specialized Knowledge is gained now also appears to be a factor in USCIS adjudications for L-1B beneficiaries and the petitioner is advised to address this issue. Per USCIS, specialized knowledge comes from two key sources: experience and training.  Training and experience related to products, services, equipment, techniques, processes, etc. are the norm, yet, this particular RFE demonstrates a reach outside the scope of the law.  Nowhere in the definition of “specialized knowledge” are the terms “uncommon, noteworthy, or distinguished” to be found. “Specialized” as used in this context does not connote exclusivity, but rather narrows the field of “knowledge”. The definition of “specialized knowledge” does not require that the knowledge be “advanced” or “exclusive.”  The term “specialized” refers instead to the fact that the knowledge must be related to the business of the Petitioner. So, based on this RFE, a petition needs to include evidence that knowledge is not “General” knowledge but is specialized and advanced.

“Similarly trained employees” appears nowhere in the statute nor in the regulations. Nowhere in the statute or regulations is it indicated that the beneficiary of an L-1B beneficiary must be the only person with the specialized knowledge.  Rather, the regulator wisely left it to the petitioner to determine which, if any, of its employees is best able to transfer to the U.S. entity and aide in the development of the company’s business.

Practice Pointers: MINESWEEPERS, SURVEYORS, AND OTHER TOOLS TO SURVIVE THE NEW L-1 LANDSCAPE

What to do in this new environment?

First, know the context of this new era — read the OIG report—it exposes the predisposition against a favorable adjudication of an L-1 visa petition. Read as well the fraud factor memo noted above, and be sure that these issues are addressed as best able in the petition.

Understand how Matter of Treasure Craft of California is being used, or abused.

Third, understand the preponderance of the evidence standard and prepare cases accordingly.

Fourth, and key, in an “effort” to try and standardize what was previously a quite consistent understanding of the L-1 nonimmigrant category, but now is not, USCIS has issued standard RFE formats to “facilitate” its adjudication. The adjudicators are to drop the right data in each form as per the blanks.[23] These, like papaya, are extremely helpful and practitioners should indulge in them. They are checklists, guidance and identify the boxes the adjudicators are ticking.

Fifth, look to older published RFE where sometimes one can see that certain words must apparently trigger certain concepts. For instance, pulled from some of the L-1B RFEs, the words below might be a guide to what USCIS now seeks. Naturally though, each set of words must include a fact(s) to support such.

  • not general knowledge held commonly throughout the industry but that it is truly special or advanced
  • qualified to contribute to the U.S. employer’s knowledge of foreign operating conditions as result of specialized knowledge not generally found in the industry
  • utilized abroad in a capacity involving significant assignments that have enhanced the employer’s productivity, competitiveness, image, or financial position
  • possesses knowledge that normally can be gained only through prior experience with that employer
  • ‪meetings/presentations to or for  board, owners, management
  • international marketing strategies
  • management secrets
  • pricing strategy
  • ‪trade secrets
  • ‪patents
  • ‪client lists
  • ‪business plans
  • technical training
  • products
  • services
  • research
  • equipment
  • techniques
  • management

Finally, remember at all times that your petition and your responses to RFEs are creating the record you will use for appeal.  By defining your standards carefully, you can set the tone of the review and force USCIS to meet you on ground you have defined.  Draft your petitions with the RFE and appeal in mind and you will be able to define the brave new world in which you and your clients will soon find themselves.

 


[1] USCIS-American Immigration Lawyers Association (AILA) Meeting (Oct. 9, 2012), published on AILA InfoNet at Doc. NO. 12101045 (posted Oct. 10, 2012).

[2] According to its website, “[t]he National Foundation for American Policy (NFAP) is a non-profit, non-partisan organization dedicated to public policy research on trade, immigration, education, and other issues of national importance. The organization seeks to expand the debate over the proper role of government on key issues of the day and to engage actively in the media and with the public to ensure its ideas are considered and implemented wherever possible.” http://www.nfap.com/about/missionstatement

[3] Id. at 7.

[4] Analysis: Data Reveal High Denial Rates for L-1 and H-1B Petitions at U.S. Citizenship and Immigration Services, NFAP Policy Brief (Feb 2012), published on AILA InfoNet at Doc. No. 12020964 (hereafter NFAP Policy Brief) at 1.

[5] Id.

[6] Id. at 7.

[7] Id.

[8] INA § 101(a)(15)(L); 8 CFR § 214.2(l)(1)(i); 8 CFR § 214.2(l)(3).

[9] INA § 214(c)(2)(B).

[10] 8 CFR § 214.2(l)(ii)(E).

[11] Id. at 4.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18]  U.S. Department of Homeland Security, Office of Inspector General, OIG-06-22, Draft Report, Review of Vulnerabilities and Potential Abuses of the L-1 program, p. 4. This L-1 based OIG report, also includes a section wherein it repeats and summarizes statements by individuals who fear that the L-1 will displace U.S. workers, though no empirical data is included in that discussion.

[19] Id. at 18, 35

[20]  Policy recently released its report confirming the dramatic increase in L denials (NFAP Report on High Denial Rates of L-1 and H-1B Petitions at USCIS, National Foundation For American Policy, NFAP Policy Brief, February 2012, AILA Doc. No. 12020964, http://www.nfap.com/pdf/NFAP_Policy_Brief.USCIS_and_Denial_Rates_of_L-1_and_H%201B_Petitions.February2012.pdf;), and similarly  USCIS  addressed this issue as we , L-1B Performance Data by Approvals and Denials, AILA Doc. No. 12082954, http://www.aila.org/content/default.aspx?docid=41107. http://www.uscis.gov/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/Employment-based/i-129-l-1b-performance.pdf)

 

[21] INA §101(a)(15)(L).

[22] 8 CFR 214.2(l)(1)(ii)(D).

[23] U.S. Citizenship and Immigration Service – RFE L-1B templates, April 2010, reprinted at AILA InfoNet doc. No. 12040457, 12010572, 12010573, 12010571, and as well, AILA’s Response to USCIS as well as at doc. No. 12050247.

Why Are Immigration Lawyers So Happy?

Posted in Immigration Lawyers, Pro Bono Legal Services

happy lawyer.jpgWhy Are Immigration Lawyers So Happy?

By Careen Shannon and Angelo Paparelli

According to statistics provided to CNN by the Centers for Disease Control, among professionals in the United States lawyers rank fourth in suicides (exceeded in misery only by dentists, pharmacists and physicians). Lawyers are also nearly four times more likely to suffer from depression than non-lawyers.

Clearly, practicing law is never a 9-to-5 job.  Being a lawyer is a high-stress, plummeting-prestige profession—the work is demanding, the economics of the profession are increasingly challenging, and in the views of some, the psychic or status rewards of working as a lawyer rank below nail technician. Far be it from us to suggest that immigration lawyers are immune to the effects of such stress. But among the countless lawyers we know in dozens of different specialties, we think it is fair to say that the immigration lawyers are the happiest. Why?

The stress in most lawyers’ lives is caused primarily, we believe, by a few key factors. First, the American legal system is deliberately adversarial. Our adversarial system of law is meant to be fairer than the inquisitorial approach used in many civil law countries by allowing each side in a dispute to zealously defend its position before an impartial arbiter (judge or jury). But the pressures of such a system can take a toll on the advocates—the lawyers—who work within it. In fact, lawyers have been compared to soldiers in this regard: “Both lead physically tough lifestyles: long hours, separated from family life and both are sent to fight other people’s conflicts, no questions asked.” The qualities that can make for a good lawyer—intelligence, diligence, perfectionism, competitiveness, being hard-working and achievement-oriented—can also create the isolation, panic and anxiety that often lead to depression.

Second, contrary to how the life of a lawyer is depicted on television or in the movies, much of what lawyers actually do on a day-to-day basis can be mind-numbingly boring. Think document review, drafting boilerplate contracts, performing endless legal research, completing innumerable government forms (especially in fields like tax and immigration), and  preparing for trial or finishing a brief late into too many nights. Not really anyone’s idea of fun.

Of more immediate concern to members of the legal profession nowadays are the financial pressures presented by a changing economy, and the fear that lawyers will be replaced by non-lawyers and by the increasing use of technology. In tough economic times, corporate and individual clients alike are seeking more for less—more and speedier legal services for less money. A related pressure flows from what Professor Richard Susskind argues in his book, Tomorrow’s Lawyers: An Introduction to Your Future, is the inevitable liberalization of legal services, whereby non-lawyers are permitted to provide services traditionally considered to constitute the practice of law.  This is already the case in many other countries, and in the United States is institutionalized in immigration law practice, where certain non-lawyers accredited by the federal Board of Immigration Appeals are allowed to represent immigrants in removal proceedings or in administrative matters before the Department of Homeland Security.

As discussed at length in a recent article in The Economist, whereas automation in the world’s advanced economies in the 20th century served mostly to replace workers with machines in the manufacturing sector, technology in the 21st century is automating “brain-work,” including some of the work typically performed by white-collar professionals such as accountants and lawyers.  This type of disruptive economic growth will inevitably have a significant impact on the practice of law.  Indeed, Susskind’s more sobering prediction is that the future of law will be “a world of virtual courts, Internet-based global legal businesses, online document production, commoditized service, legal process outsourcing, and web-based simulated practice.”  That’s enough to drive any lawyer to drink.

So why do we think immigration lawyers are different?  Notwithstanding the innovative use of technology to simplify and automate many of the more mundane aspects of law practice, including gathering information, tracking deadlines and completing forms (of which our firms, Fragomen and Seyfarth Shaw, are leading examples in the world of immigration law), immigration practice fundamentally revolves around people. Whether you’re helping a Fortune 500 company manage its global mobility program, defending an individual against removal (deportation) in Immigration Court, or helping a U.S. citizen’s foreign spouse apply for permanent residence, as an immigration lawyer you are ultimately assisting people through a major personal transition that will profoundly transform their lives and the lives of their families.

Economic pressures and technological development are moving us inevitably toward a more data-driven, data-input system of immigration benefits procurement, and the trend toward reliance on technology carries with it the threat of dehumanizing both the practice of law as a profession and the truly intimate odyssey for the immigrants we represent. But while the CDC has not provided statistics about the mental health of immigration lawyers in particular, it is clear to us that immigration lawyers labor in the finest tradition of law as a “helping profession.”

This ability to help others, without a true adversary such as a litigation opponent staying up all night devising ways to destroy opposing counsel—not just a government lawyer with an impossible case load who often has too little time for assertive advocacy—distinguishes immigration lawyers from the suicide-prone attorneys described in the CNN article.  To be sure, we’ve seen immigration lawyers react poorly to the stress of the practice, especially those of the people-pleaser sort who have a hard time communicating bad news to clients, and just want always to say yes. But they are by far a speck in the immigration-lawyer universe. 

As immigration lawyers, we have expertise in a complicated area of law that we apply in the service of our clients. For those of us who work in the private sector, we have skills that are also uniquely valuable to an underserved population of indigent immigrants for whom there is a severe shortage of qualified non-profit and pro bono legal counsel. Attorneys who do not specialize in immigration law also have skills that are easily transferable to representing immigrants facing deportation or applying for asylum or seeking various types of lawful immigration status. 

In one of Careen’s first pro bono cases as a young lawyer—an asylum matter in Immigration Court—the case concluded with Respondent’s counsel, the client and the judge choking back tears. Angelo’s pro bono cases have also included life-changing experiences, for Angelo and his clients, as he has blogged, here, here and here.  

So, feeling stressed out or depressed? Take a sip of the helping-profession elixir that brought many of us into law in the first place, and take on a pro bono immigration case. Whether you are already an immigration lawyer, or a lawyer in another specialty looking for meaning amid the stress and frustrations of law practice, we promise you that in addition to helping a person in need and fulfilling the highest ethical calling of the legal profession, the experience will leave you feeling fulfilled beyond all expectations. And it is far superior to talk therapy and antidepressants.