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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
Immigration Voices: "What the 'L' is Going on with USCIS?"
[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
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. 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 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.
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. 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.”
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. 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.
A review of recent RFEs and denials issued by the USCIS shows that the current theme in L-1 adjudications follows the following principles:
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. 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.
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. 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.
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?
Advise petitioners that one year of qualifying employment with the foreign entity may be insufficient.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.)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.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.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.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.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.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.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 KnowledgeIt 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 EconomyQ&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” 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”;
[B]2. “The program allows for the transfer of workers with “specialized knowledge””, 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;”
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”
[B]4. The program allows for start-up operations that do not yet have operations in the U.S., 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,” 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. 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.
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.
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.”
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.”
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. 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 advancedqualified to contribute to the U.S. employer's knowledge of foreign operating conditions as result of specialized knowledge not generally found in the industryutilized abroad in a capacity involving significant assignments that have enhanced the employer's productivity, competitiveness, image, or financial positionpossesses knowledge that normally can be gained only through prior experience with that employermeetings/presentations to or for board, owners, managementinternational marketing strategiesmanagement secretspricing strategytrade secretspatentsclient listsbusiness planstechnical trainingproductsservicesresearchequipmenttechniquesmanagement
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.
 USCIS-American Immigration Lawyers Association (AILA) Meeting (Oct. 9, 2012), published on AILA InfoNet at Doc. NO. 12101045 (posted Oct. 10, 2012).
 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
 Id. at 7.
 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.
 Id. at 7.
 INA § 101(a)(15)(L); 8 CFR § 214.2(l)(1)(i); 8 CFR § 214.2(l)(3).
 INA § 214(c)(2)(B).
 8 CFR § 214.2(l)(ii)(E).
 Id. at 4.
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.
 Id. at 18, 35
 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)
 INA §101(a)(15)(L).
 8 CFR 214.2(l)(1)(ii)(D).
 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?
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
Ellis Island, which opened as an immigration processing post on January 1st 122 years ago, symbolizes for many Americans of immigrant descent the place where would-be entrants to the U.S. learned whether they would be admitted to the country. Perhaps the most famous and wrenching location within this hallowed landmark are the "stairs of separation," a staircase divided into three sections, with the middle reserved for those barred from immediate entry.
As Grazyna Drabik and Paul Riker, two teachers at the City University of New York, describe the process, it could be harrowing even for those not allowed admission:
The immigration officers asked the immigrants the same questions that they were asked upon departure. The initial responses were recorded on the ship’s manifest, and the officers would use this to verify the immigrants’ responses. Immigrants were asked up to 29 questions including how much money they had on them, if they were polygamists, and if they had a job already lined up. If they passed this aspect of the screening, they were free to go. The entire process would take between three to five hours per immigrant.
Ellis Island no longer processes prospective American Dreamers but serves instead as a memorial of our immigrant heritage. While immigration screenings still occur at land borders, U.S. ports of entry and pre-flight inspection posts, the more difficult and consequential grilling happens at American embassies and consulates abroad, where virtually all applicants for visas, save for children and the very old, must be interviewed by U.S. consular officers.
Members of the public and lawyers for visa applicants, however, are usually barred from attending consular interviews. Little official information is publicly available about the purpose and nature of the interview and the burden of persuasion imposed on the visa applicant. Other information is only accessible on a limited basis, e.g., by members of the American Immigration Lawyers Association, "Notes from Meetings with DOS Mission India," AILA InfoNet Doc. No. 13122744 (Posted 12/27/13).
The State Department offers online resources that only generally discuss the immigrant visa interview process and fee payment procedures. State has published almost nothing on nonimmigrant visa interviews, other than to say at 9 FAM 41.102 N2.1 ("Visa Interviews") that consular officers "must make every effort to conduct visa interviews in a fair manner" and that each officer must use his or her "best interviewing techniques to elicit pertinent information in order to assess the [applicant's] qualifications for the visa and identify any potential security concerns."
This blog post will shed light on the arcane visa interview process and suggest ways for applicants to improve the chance that the desired visa will be granted. Some applicants have been known to pray to a supposed deity known as the "Visa God." For everyone else, the following immigration-insider tips may prove helpful.
Purpose, Format and Legal Background
A visa is no more than the privilege to (a) be carried on a mode of public transportation such as a plane or a ship, (b) approach the border or other inspection post, and (c) request that an inspecting immigration officer admit the individual to the United States. The visa interview is designed to elicit information to allow a consular officer to resolve, one way or another, two questions:
Is the applicant, as a matter of fact, eligible under law, i.e., the Immigration and Nationality Act (INA), to be granted formal admission or entry to the United States?; andAssuming that the individual is theoretically eligible to receive a visa under law, are there any disqualifying grounds that would make the person inadmissible to the U.S. and thus ineligible to receive a visa?
Mostly questions asked at visa interviews are factual rather than legal. This is significant because of a doctrine known as consular nonreviewability (or as we lawyers dub it, consular absolutism). That doctrine holds that no court and no Executive Branch official can overrule a decision of a U.S. consular officer to refuse a visa based on a question of fact. In most cases, the consular officer will be the ultimate arbiter of the facts; hence, the visa applicant's answers to questions posed by the consular officer are critically important.
Of equivalent importance are the legal standards that apply to visa interviews:
The visa applicant bears the burden to establish that s/he is (a) eligible under law to receive the particular visa requested and (b) not legally inadmissible to the United States;The visa applicant must overcome all legal presumptions found in the INA, such as the presumption of immigrant intent or the "intending-immigrant" presumption, which stacks the cards against the applicant by making the individual ineligible at first blush for visas available, for example, to business visitors, tourists, trainees, students and other classes of applicants who by law must maintain an unrelinquished permanent residence abroad if they are to be found eligible to receive such a visa; andThe visa applicant must establish eligibility for a visa not merely by the more-likely-than-not ("preponderance of the evidence") standard that applies to most decisions in civil (non-criminal) matters, but to the higher and more nebulous and subjective standard, "to the satisfaction of the consular officer."
Learn as much as possible before the interview about the underlying eligibility criteria for the particular visa you seek, and any possible negative factors (grounds of inadmissibility) that might apply to you. For example, visitors for business or pleasure must show that (a) their purpose for entering the U.S. is sincere and lawful, (b) they will enter temporarily and return to their foreign residence abroad (which they have not abandoned), and (c) they have sufficient funds available to avoid the temptation of unauthorized employment. Published resources, if carefully vetted, may be helpful for background information on visa categories and requirements, but there is no substitute for the counsel of a competent immigration lawyer in understanding visa eligibility and inadmissibility.
Consular officers expect to glean most of the information during the interview from the words uttered by the visa applicant and the applicant's answers on the online visa application (Form DS-160), and only secondarily from printed materials. Still, visa applicants should bring with them any relevant evidence that may help establish visa eligibility or refute any perceived ground of inadmissibility. The printed evidence should be well organized and tabbed for ready access and proffer during the interview if a fact brought out from a consular officer's question might be more readily confirmed by presenting a single relevant document to show the officer.
Needless to say, however, the applicant should be fully familiar with the answers to all questions on the Form DS-160 and all documents submitted before the interview (if a petition or other documents were filed with U.S. Citizenship and Immigration Services or with the consular post) or while it transpires.
The applicant must always tell the truth but should also be sure that nothing truthfully relayed during the interview conflicts with any answers on the DS-160, or the documentary evidence previously filed or submitted in person. Consular officers often look for inconsistencies; so if a correction or clarification needs to be made, that should be explained proactively by the applicant before the consular officer has the chance to seize upon any discrepancies.
Review the embassy or consular website to make sure about complying with any security restrictions such as bans on the carrying into the consulate of laptops, smartphones, thumb drives, cameras, etc. Get a good night's sleep, and then have a filling meal and arrive well before the scheduled time of the interview. Dress for success -- wear clothes that show respect -- business attire is usually best.
Try and anticipate the questions posed and practice your responses -- not so that they are scripted but that you are ready to phrase answers in a way that, while always truthful, persuasively demonstrates why the consular officer should find you deserving of the visa you desire. Applicants should recognize that expressions of anger, frustration or other strong negative emotions will meet with a visa refusal in virtually all instances.
Visualize that, instead of applying for a visa, you are applying for a bank loan. No banker will lend money to someone who appears distrustful, disorganized, nervous or frightened, or whose hands are shaking or voice is quavering, or who refrains from making eye contact. Neither will a consular officer readily issue a visa to an applicant displaying these mannerisms. Plan to adopt a pleasant expression and to try to convey a confident, modest but worthy attitude, one that is respectful of the consular officer's burden to decide the case fairly and the importance of law compliance.
The Scoop on Consular Officers
The State Department divides Foreign Service Officers (FSOs) into three "cones" or tracks: Political, Economic and Consular. The Consular cone is the least prestigious or desirable, but all FSOs must spend some time (however begrudgingly) as a consular officer conducting visa interviews. The INA is a massively complex law, but no less so than the binding guidance found in the regulations of several federal departments and agencies interpreting it. Added to that is an internal manual, often amended, to guide consular officers on visa adjudications known as the Department of State Foreign Affairs Manual (Volume 9).
Training in immigration law for consular officers is rudimentary at best, usually just a 31-day course at the outset of their careers as FSOs. Conoffs, as they sometimes are called, also receive training in the reading of "micro-expressions," and following one's gut instincts. In this blogger's view, they soon conclude that "no" is a safer answer for ever higher career progression than "yes," and develop a preternatural perception that the State Department stands at a higher level of importance than any other federal agency with a role in the administration, enforcement and interpretation of the INA.
Consular officers do not choose the post where they will serve. They may have arrived only recently in country and have had little time or training to learn about local culture, customs and practices. As a result, they often rely unduly on the foreign nationals employed (often for many years) at the local American consulate, who often become a power (more real than titular) unto themselves. Be very nice to these staffers, for they help or hurt you almost at their whim.
Consular officers are regularly evaluated more by the speed with which they conduct interviews and decide visa applications (typically in two to five minutes each), and less by the quality of their decisions. Interviews are expected to end in the morning or at the latest in the early afternoon. Highly rated conoffs are "rewarded" by being taken off the visa line and assigned more attractive duties.
The Visa Interview
Interviews are rarely conducted in private. Rather, the applicant must stand at a counter in front of bullet- and bomb-proof glass and speak into a microphone while a multitude of other visa applicants sit or stand nearby, within earshot. Listening (discreetly) to the questions of consular officers and the answers given may be helpful -- so long as you are not rattled by the frequency of visa refusals.
The consular officer will be seated on the opposite side of the glass at a computer, taking required actions such as reviewing security clearance reports and case-relevant data, while also articulating questions only some of which may pertain to the visa category. Consular questions may be posed merely out of boredom or curiosity about the applicant's field of endeavor or to develop a beguiling "good cop" appearance.
In any case, visa applicants must speak in a voice that can easily be heard, with clear enunciation (since the consular officer may not understand your accent). Even if the consular officer speaks your language, you should try to respond in English if you are reasonably capable in that tongue.
You should respond to questions posed succinctly but always "stay on message." You must politely but assertively show reasons why you deserve to receive the visa sought. Imagine an empty beaker that must be filled by the time the interview ends with good reasons and positive impressions that support issuance of the visa. If the beaker is empty when the interview concludes or is filled with dross and dirt about you, your application will likely be refused.
The Visa Decision
The consular officer will tell you at the end of the interview if your visa will be issued or refused.
If it is granted, you will learn whether to stay and wait for it, return later or expect to receive it (affixed to your passport) by delivery service.
If it is refused, the consular officer will explain whether it is a "hard" or "soft" refusal. Although the conoff may not use these terms, a hard refusal is one where the officer has decided the facts adversely and found that you are legally ineligible to receive a visa or are found to be inadmissible under the INA. A soft refusal, one issued under INA Section 221(g), is one that suggests a temporary or tentative basis to refuse the visa, a basis that may be overcome. For example, a missing document, such as a birth certificate or job verification letter, may be needed. Or, "administrative processing" for background security screenings must still be conducted. If Section 221(g) applies, the consular officer will likely explain what action items remain.
If the officer indicates, however, that his or her decision to refuse your visa is final, do not cry, raise your voice, show anger or express negative emotions. Instead, politely ask the officer to explain in detail the reasons for the decision and ask if there is any other document, information or evidence that might cause the officer to reconsider. It is probably not helpful to try and persuade the officer at that point to reverse the decision and issue the visa.
Whether or not the officer suggests other evidence, you should express thanks and leave the building promptly. Immediately, then, sit down and write a note or email outlining in great detail every question asked, every answer given, all body language observed and any other information that may be helpful to a third party (e.g., a government official, an immigration lawyer, a journalist) in understanding why your visa was refused. They may be able to help you try again or seek reconsideration.
* * *Under U.S. law, only a consular officer can issue you a visa. No article and no immigration lawyer can insure that your visa will be issued. Hopefully, however, by following these suggestions, preparing well, and presenting a compelling and deserving case, your chance of receiving that visa will be substantially improved.
[Blogger's Note: Heartfelt thanks go to attorney Loren C. Locke, my colleague at Seyfarth Shaw, and a former U.S. consular officer, who has provided me with fresh and useful insights into the visa-interview process, many of which are reflected in this post.]