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Angelo Paparelli on Dysfunctional Government

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

    by , 04-01-2014 at 03:31 PM (Angelo Paparelli on Dysfunctional Government)
    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.


    http://www.nationofimmigrators.com/assets_c/2014/03/leonrodriguez-thumb-240x336-26270.jpg
    The 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.

    Originally printed in http://www.nationofimmigrators.com.
  2. Senator's Saucy Request Roils EB-5 Regional Centers

    by , 03-03-2014 at 12:28 PM (Angelo Paparelli on Dysfunctional Government)

    Updated 04-01-2014 at 02:29 PM by APaparelli

  3. EB-5 Immigration Lawyers Wear Too Many Hats

    by , 02-11-2014 at 11:19 AM (Angelo Paparelli on Dysfunctional Government)
    http://www.nationofimmigrators.com/Hats%202.jpg
    The 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 applying the law. 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.

    Updated 02-11-2014 at 11:33 AM by APaparelli

  4. Immigration Voices: "What the 'L' is Going on with USCIS?"

    by , 02-05-2014 at 12:53 PM (Angelo Paparelli on Dysfunctional Government)
    Immigration Voices: "What the 'L' is Going on with USCIS?"




    http://www.nationofimmigrators.com/assets_c/2014/02/Frustrated woman-thumb-350x524-25870.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:

    [B]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];

    [B]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]

    [B]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;

    [B]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) tosupport 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_...ruary2012.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...erformance.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.
  5. Why Are Immigration Lawyers So Happy?

    by , 01-29-2014 at 03:57 PM (Angelo Paparelli on Dysfunctional Government)
    http://www.nationofimmigrators.com/assets_c/2014/01/happy lawyer-thumb-350x406-25799.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.

    Updated 01-29-2014 at 04:00 PM by APaparelli

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