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  1. Bloggings: The need for competent immigration examiners - and effective advocacy by immigration attorneys; by Roger Algase

    In his blogging in the November 3 ID, Gregory Siskind gives an excellent example of an apparently absurd decision by a USCIS examiner. This is a feature of immigration law that, in the experience of many, knows no boundaries, affects immigrants of all ethnicities and nationalities, and is not limited by any per country or per category quotas. It might be called "equal opportunity incompetence".  
    The example that Mr. Siskind gives, based not on any case in his own office, but on an ABC newscast, appears to be especially outrageous. An obviously talented and capable Israeli entrepreneur, Amit Aharoni, who had raised over a million dollars for a Silicon Valley startup that already employs 9 Americans and may have the potential to employ hundreds more, was denied a visa to work as his company's CEO, despite his accomplishments and the fact that he has an American MBA degree. Surely, USCIS could have found a better way to decide his application.
    In addition, USCIS has announced that it wants to make it easier for entrepreneurs to get visas. It seems as if the examiner in this case either didn't know about the new policy or didn't care. According to the same news report, Mr. Aharoni is now in Canada, angry and humiliated, and is thinking of moving his business and his jobs there. His would not be the first such case
    But this is only part of the story. The ABC news report, as far I can tell, did not say what kind of visa Mr. Aharoni was seeking. It only said that his visa was denied because the examiner was not convinced that the offered CEO position required Mr. Aharoni's type of advanced degree. This indicates that he may have been sponsored for an H-1B specialty worker visa, which provides that the offered position must be one that normally requires a related bachelor or higher degree, or the equivalent.
    An H-1B visa is appropriate for a financial specialist, but not necessarily for someone with more general respnsibilities, such as a CEO. Is is possible that Mr. Aharoni might have been sponsored for the wrong visa? Or is it possible that H-1B might have been the right visa for him, if indeed that was the one that was applied for, but that the supporting papers did not make the fact that financial expertise was central to the job description sufficiently clear?
    I have no way of knowing the answer to those questions. However, the mere fact that someone can create jobs or may have the talent to build up a successful company is not enough under the law to allow USCIS to approve an H-1B visa. One must be working in a "specialty" occupation.
    True, there are other visas that may be suitable for certain entrepreneurs, such as L-1 or E-2. But those visas also have their own technical requirements, which have to be met. Despite whatever USCIS officials may say about making the system more friendly to entrepreneurs, there is only so much that immigration examiners can do in that regard without action by Congress.
    This does not mean that I disagree in any way with Mr. Siskind's valuable and important point about the need for better educated, better trained immigration examiners. As he states, we badly need competent examiners, who are willing and able to understand the facts of a case. Sitting on my desk right now, I have an RFE which totally ignores dozens of previously submitted employer records, business newspaper articles and similar evidence explaining exactly why the employer needed to hire the type of specialty worker being sponsored in this H-1B case.
    The RFE states that, in the examiner's opinion, only larger companies normally hire this type of specialty worker. The facts of this case, evidently, do not count. This particular petition had actually already been withdrawn for completely unrelated reasons. But the RFE is so typical, so infuriating and so contrary to the H-1B statute, that I am thinking of giving the examiner a piece of my mind anyway. I may attach a copy of Mr. Siskind's comment about the need for more educated examiners to my reply.
    But precisely because the immigration laws are so technical and many examiners are badly trained or unwilling to pay attention to the facts, it is even more incumbent on attorneys to make sure that they are doing a careful job in preparing their clients' petitions and applications. We cannot choose who adjudicates our cases. But we can control the quality of our own advocacy.
  2. Bloggings: Obama comes under more racist attacks for not giving fast enough support to the Republicans' anti-immigrant agenda. By Roger Algase

    Two recent news stories in the Huffington Post underscore the futility, if not idiocy, of the Obama administration's attempts to find a "reasonable middle ground" toward the issue of immigration enforcement. If we were living in a different galaxy, or an alternative universe, there might be an argument that it made sense for the administration to try to bolster its enforcement credentials at the same time as it pushes for compehensive immigration reform.
    There might also be an argument that, given that the possiblilty of actually deporting 11 million unauthorized immigrants is somewhere on the order of exceeding the speed of light, it would make sense to focus on the most dangerous criminal immigrants in deciding whom to deport, instead of the current "first come, first served" approach of grabbing and kicking out whomever happens to get caught.
    (Actually, the chances of deporting 11 million people may be even less than those of exceeding the speed of light. There is a report about a recent experiment by scientists in Europe in which some type of particle may have been sent at a speed faster than the speed of light by a few billionths of a second.)
    But even if it were possible to deport Latino and other non-white immigrants at the same speed that one can send subatomic particles, that would not be fast enough for some Republicans, for whom the idea that reason or reality could play any role in immigration is just as much anathema as the idea that the earth is round and revolves around the sun used to be for those in power not so long ago.
    One of the Huffington Post articles describes an attempt by Arizona Sheriff Joe Arpaio to revive the "birther" lunacy about President Obama. Arpiao wants to see the "microfiche" copy of Obama's Hawaiian birth certificate. Given that even Donald Trump and Rick Perry have given up on this particular form of insanity, what motive could Arpaio possibly have for going off this deep end? 
    There is a motive, of course. Many people have forgotten, or never realized, that Arizona's immigration law was mainly a personal reaction by Arpaio and his supporters in the Arizona legislature to the vote of no confidence that he had been handed by the Department of Homeland Security, when it revoked the federal authority he had previously given to round up unauthorized immigrants under infamous INA Section 287(g).
    It is not surprising that Arpaio is still looking for a way to get even with the Obama administration for taking away his federal authority and then challenging Arizona's immigration law in court. But if one believes that locking up Latinos in desert tents is any kind of solution to America's immigration problems, one might just as well believe that President Obama was born in Kenya. 
    The other Huffington Post story reports that the Republican majority on the House Judiciary Committee has voted to subpoena the administration in order to investigate whether it has "released 300,000 dangerous criminals" as part of the stated policy of prioritizing which types of immigration violators will be targeted for deportation. This subpoena stategy is the brain child of Texas Republican Congressman Lamar Smith, who, as everyone knows, has been trying to close America's borders to Latino and Asian immigrants for the better part of the past two decades.
    Will the Obama administration let itself be intimidated by these new moves by anti-immigrant bigots into backing away even further than it already has from whatever timid lip service it may have purported to give to immigrant rights in the recent ICE memo by John Morton? We may soon find out. But if were living in a more rational and less racist America, with a more courageous president, the Joe Arpaios and Lamar Smiths of this country would no doubt be looking around for a different planet, or universe, to relocate to - at the speed of light.
  3. Bloggings: Which is a greater disqualification for the presidency - unproven sexual harassment allegations, taking money from the Koch brothers, or advocating mass killing of immigrants? Take your pick. By Roger Algase

    Herman Cain's clownish, grotesque candidacy for the highest office in the land may have crashed in flames on Holloween, when obviously inconsistent statements that he made about an apparent settlement of alleged sexual harassment claims some 15 or 20 years ago came to the surface. Cynics, or perhaps realists, are already seeing the long hand of Karl Rove.
    Rove, evidently, unlike the great majority of Republicans who seem to be answering the pollsters, actually wants his party to win next year's presidential election. Therefore, Cain had to go. The Republicans already have a big enough problem with other ludicrous, obviously unfit presidential candidates. No one should minimize the seriousness of sexual harassment as a disqualification to be president of the United States, though even without this issue, Cain would already be disqualified because of the money he has reportedly taken from the Koch brothers.
    But, even if it were certain that Cain had made inappropriate statements or suggestions to two anonymous women and then tried to cover this up, something which is very far from having been proven as of this writing, we have to ask which is more serious: using inappropriate language toward women, or calling for the electrocution of thousands of women - and men -  trying to enter the United States to escape poverty and drug cartel terror, and then passing it off as a joke.
    Both are horrible. But judging from the headlines, the former is more serious in today's America. That says something about our society. Not something good.
  4. The Mentally Incapable and Political Asylum; By Danielle Beach-Oswald

    Although it has long been established that immigrants have a right to legal counsel without any cost imposed on the government, the situation for one detained immigrant in York, Pennsylvania shows that it's time for the government to do much more to help those with mental health problems seek political asylum in the United States.
    Matter of M-A-M, decided by the Board of Immigration Appeals in May 2011, stated that aliens in immigration proceedings are presumed to be competent if there is no indicia of incompetency.
    To determine competency, an individual must be able to have a rational and factual understanding of the nature and object of the proceedings and must be able to participate in his defense. When the Judge finds an indicia of incompetency, the immigration Judge must make further inquiry to determine whether he or she is competent for the purposes of immigration proceedings. If it is determined that the alien lacks sufficient competency to proceed, the immigration judge must evaluate " appropriate safeguards". Clearly, the terminology here allows for tremendous discretion, but something must be done rather than inaction.
    An Associated Press Article on October 17th detailed the story of Derrick Cotterel. Mr. Cotterel, a Jamaican national, worked in agriculture for 10 years. Following a pay dispute with his employer, Mr. Cotterel was arrested and it was determined that he had overstayed his original visa. Judges in the York Immigration Court attempted to understand his case for political asylum, but given his severe language problems stemming from mental health issues, he faced tremendous difficulties in his case for political asylum. Although his asylum was eventually denied, it is now on appeal with the help of ACLU. Lawyers working on his appeal are making every effort to make sure that he receives the appropriate assistance, including a speech and language professional, to help him in his communications with the court. The Associated Press also noted how the ACLU is seeking a class action lawsuit in California to guarantee access to attorneys for mentally-ill detained immigrants in California.
    A few months ago, I recently represented a client before the Baltimore Immigration Court that also faced mental problems. It was clear that his language difficulties of my client, like that of Mr. Cotterel, would have made it impossible for him to seek political asylum. However, through persistent efforts and the assistance of mental health experts who showed he had developed severe Alzheimer's Disease,I was able to get the Immigration Judge to agree to conduct a competency hearing despite the government's objection. In this case it was also not clear that any nexus existed between his memory issues at present and the his past persecution. After a competency hearing, the Judge determined that my client would not have to testify at his immigration hearing due to incompetency under Matter of M-A-M and thankfully he was granted political asylum.
    But for people like Mr. Cotterel, the government must take action as he was unrepresented by counsel. The mentally ill victims of persecution are especially vulnerable if forced to return to their native countries. Those that are detained in criminal proceedings have access to mental health professionals that are able to make a determination that directly impacts their criminal trial. Despite Mr. Cotterel being in a detention center shared with alleged criminals, he was unable to receive access to mental health professionals that would have helped him in his bid for political asylum. The ACLU's efforts in California to gain access to attorneys for all mentally-ill detained immigrants is to be applauded, but more must be done.
    Mentally-ill detained immigrants should have access to not only attorneys, but also mental health professionals. This should be provided by the government in order to maintain a modicum of fairness. Otherwise, the mentally-ill victims of torture will face increasing hurdles with little hope of relief.
  5. H1B Visa Employee - Right of Control for Sole Business Owners

    Can you own your company as an H1B Holder? We have prepared the summary of the updates regarding establishing employer-employee relationship for H-1B purposes in cases where the beneficiary owns 100% of the petitioning company.
    Since the issuance of Neufeld Memorandum "Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Placements" in January 2010, USCIS has issued Requests for Evidence (RFEs) for many companies where the beneficiary is also a stockholder of the petitioning company. Often times, the RFEs are issued even if the beneficiary owns a minimal percentage of shares in the petitioning company.
    In the situations where the beneficiary has an ownership interest in the petitioning company, it has to be established that the petitioner can be classified as the employer pursuant to 8 C.F.R. 214.2(h) (4) (ii) (2). In other words, it has to be established that there will be an "employer-employee relationship", as indicated by the fact that the petitioner may hire, pay, fire, supervise, or otherwise exercise the right to control over any such employee.
    Establishing the Right to Control

    The Neufeld memo provides an example of a situation where the right to control will not be found. The example includes a petitioner, a fashion merchandising company, that is owned by the beneficiary. The beneficiary is the sole operator, manager, and employee of the petitioning company. The beneficiary cannot be fired. There is no outside entity which can exercise control over the beneficiary. USCIS provides this scenario as an example where there is no right to control over the beneficiary.
    However, this example in the memorandum does not preclude the finding of right to control in the situations where the beneficiary owns shares of the petitioning company or is the sole owner of the company and there is an outside control over the beneficiary.
    USCIS acknowledges that a sole stockholder of a corporation can be employed by that corporation as the corporation is a separate legal entity from its owners and even its sole owner. However, an H-1B beneficiary who owns a majority of the sponsoring entity and who reports to no one but him or herself may not be able to establish that a valid employment relationship exists in that the beneficiary, who is also the petitioner, cannot establish the requisite "control". USCIS stresses in the Memorandum that "[w]hile it is correct that a petitioner may employ and seek H-1B classification for a beneficiary who happens to have a significant ownership interest in a petitioner, this does not automatically mean that the beneficiary is a bona fide employee."
    Neither the Memo nor the regulations bar approval of the H-1B petitions where the beneficiary has the ownership interest. The Neufeld Memorandum merely stresses the fact that the petitioner has to show the right to control the beneficiary.
    Even though the Memorandum clearly states that there can be situations where the corporation can establish the right to control its sole owner, adjudications of H-1B petitions where the beneficiary had an ownership interest in the sponsoring entity have been inconsistent. Often times, USCIS plainly concludes that since the beneficiary owns a part of the petitioning entity, it has not established the employer-employee relationship.
    Despite the fact that the Neufeld memorandum was issued almost two years ago, USCIS has released its clarifications of the memorandum in the Q&A session only in August 2011. See Questions & Answers: USCIS Issues Guidance Memorandum on Establishing the "Employee-Employer Relationship" in H-1B Petitions posted on 08/02/2011 on USCIS website.
    The Q&A clarifies when a beneficiary, who is the sole owner of the petitioner, may be able to establish a valid employer-employee relationship. Specifically, if the facts show that there is a right to control by the petitioner over the employment of the beneficiary, then a valid employer-employee relationship may be established.
    Q&A gives an example that a petitioner that provides evidence that there is a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary may be able to establish an employer-employee relationship with the beneficiary.
    There is a widespread misconception about the scope of the clarifications given by USCIS. Many individuals think that now any beneficiary who is the sole owner of the petitioner will be able to establish employer-employee relationship.
    However, this is a misinterpretation of the Q&A. In any H-1B case filed on behalf of the beneficiary who has an ownership interest in the sponsoring organization, the petitioner has to provide documentary evidence proving its right to control the H-1B worker.
    Documentation Required
    The Frequently Asked Questions issued by USCIS suggest that the petitioner may submit a combination of any documents that sufficiently establish that the required relationship between the petitioner and the beneficiary exists and may submit any other similar probative evidence.
    Such documentary evidence may include the following:
    o Corporate documents, including bylaws, showing the board of directors and its authorities to exercise outside control over the beneficiary;
    o Copy of signed Employment Agreement between the petitioner and beneficiary detailing
    the terms and conditions of employment;
    o Copy of an employment offer letter that clearly describes the nature of the employer-employee
    relationship and the services to be performed by the beneficiary, the ability of the employer to fire the employee, the explanation of how the employer will exercise its right to control the employee, and the explanation how the employee will be supervised throughout the H-1B employment;
    o Copy of position description or any other documentation that describes the skills required to perform the job offered, the source of the instrumentalities and tools needed to perform the job, the product to be developed or the service to be provided, the duration of the relationship between the petitioner and beneficiary, whether the petitioner has the right to assign additional duties, the extent of petitioner's discretion over when and how long the beneficiary will work, the method of payment, the petitioner's role in paying and hiring assistants to be utilized by the beneficiary, whether the work to be performed is part of the regular business of the petitioner, the provision of employee benefits, and the tax treatment of the beneficiary in relation to the petitioner;
    o A description of the performance review process along with progress and performance evaluations;
    o Letters from the other directors explaining how the right to control the work of the beneficiary will be exercised on a day-to-day basis, who will supervise the beneficiary and evaluate the work-product of the beneficiary, and explaining the management structure of the company;
    o Copy of petitioner's organizational chart, demonstrating beneficiary's supervisory chain;
    o Other relevant documents.
    It remains to be seen if USCIS will be consistent in its adjudication of H-1B petitions where the beneficiary is the sole owner of the sponsoring entity. Therefore, when filing the H-1B petition, do not assume that the petition should be approved for a sole owner of the sponsoring entity in light of the new guidance. It is recommended to include as much evidence as possible showing the outside control over the beneficiary to prove a valid employment relationship between the petitioning entity and the H-1B worker. Please contact us with any other questions.
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