ILW.COM - the immigration portal Immigration Daily

Home Page


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

移民日报

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE



The leading
immigration law
publisher - over
50000 pages of
free information!
Copyright
1995-
ILW.COM,
American
Immigration LLC.

View RSS Feed

Immigration Law Blogs on ILW.COM

description

  1. To L1b or Not to L1B - Difficulties with the L-1B Specialized Knowledge Visa



    Recently, many employers have been receiving Requests for Evidence (RFEs) on their petitions for L-1B Specialized Knowledge nonimmigrant worker visa. The L-1B visa is filed by a company who wants to transfer someone with specialized knowledge of the company or product of the company to their U.S. branch to help with its operations. Because of so many RFEs sent to employers on their L-1B petitions, the United States Citizen and Immigration Services held a stakeholder meeting to address the issues related to L-1B filings. In particular, many attorneys for employers raised the issue concerning the factors in determining Specialized Knowledge. At our law firm, we received an RFE for our own L-1B case that raised many of the same issues other attorneys have faced in their filings. This article will address those issues and how we overcame them in our case.
    The main issue being the L-1B visa is the specialized knowledge requirement. 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 (8 C.F.R. 214.2(l)(1)(ii)(D and (E)). From this definition of specialized knowledge, the application of it has varied greatly in many cases. First, what constitutes special knowledge seems to be confused with the standard of the O-1 visa requirements. The O-1 visa requires the individual to hold extraordinary ability in the sciences, arts, education, business, or athletics where "extraordinary ability" means sustaining national or international acclaim. This standard confuses the meaning of someone simply having an advanced level of knowledge or expertise within their organization's processes and procedures.
    In answering how our client's employee held the specialized knowledge for the position he was being transferred to, we had to go back through the description of the position held in the foreign company and the position going to be held in the U.S. After going through those descriptions, we responded to each duty in both positions to show how the specialized knowledge of the employee was required for both positions. We further confirmed that knowledge through use of many letters of reference from higher up executives and other individuals who recognized the employee's importance within the organization.
    There has been some indication that specialized knowledge is different from proprietary knowledge and should not be confused. Some attorneys reminded USCIS that the L-1B nonimmigrant classification did not require the individual to be extraordinary, and that specialized knowledge need not be proprietary. It has pointed out that specialized knowledge is a special knowledge of the product or processes of a company. It was also stated that specialized knowledge need not to be narrowly held by a select few individuals within a company. These concerns were raised in our own case wherein it was requested to show how the employee held proprietary knowledge of the company's product. Although there is nothing in the definition of the L-1B visa that says proprietary knowledge is required to show specialized knowledge, nevertheless, by providing other documentation to show how the employee was directly involved in the development of the company's product, it was indisputable that he held specialized knowledge within the company.
    Another issue raised was that skilled individuals required to keep the company competitive in the field were becoming difficult to bring over with RFEs in these cases. In cases where the knowledge relates to the industry rather than a particular company or it is not unique to the company, but rather enhances a company's competitiveness, the importance of the individual's skilled work cannot be understated. It was noted that in certain industries such as the software industry, the information is not unique to the company in that there are other individuals who have knowledge of the software as well. All of these considerations make it clear that a specialized knowledge individual is the one whose knowledge makes the company more competitive in its field. This RFE was also asked for in our case and easily responded to through statements from the senior executives of the company attesting to how the employee's use in the U.S. will make the company more competitive.


    In our case, we personally dealt with was the "preponderance of evidence" standard that is the evidentiary standard used in determining whether an individual holds specialized knowledge of the employer's product, service, research, equipment, techniques, or an advanced level of knowledge of the company's processes and procedures. Despite submitting documents showing how our client worked directly on the development of the products for his company and how his position requires him to maintain knowledge that only he possesses, an RFE was still sent out asking for an elaboration on the job duties of the position in determining how it requires specialized knowledge. Also, when looking at the background of the beneficiary, the officer looking at this case requested documentation showing that he possesses knowledge that is "uncommon", "noteworthy", "distinguished by some unusual qualification", and is generally not known in that industry. Looking at this request, the officer was looking for something more in line with the standard of someone who has an "extraordinary ability" rather than someone who possesses the special knowledge within the company's organization to handle that position. Despite this request, through the use of affidavits from the senior executives of the company, along with letters from important clients where the employee was directly involved in the process of the company, demonstrating the specialized knowledge proved sufficient.
    In addition to asking for a better understanding of what it was the employee's specialized knowledge specifically applies to for the company, the officer adjudicating the case requested other documents such as "patents", "training received", "published material", and "employees under direct supervision". Basically, the officer wanted to be clear that this individual was above and beyond all employees in the company to work in this position. Nowhere in the statute does it say that the company may only have one individual who has such specialized knowledge to be transferred into the United States. It was unreasonable for the officer to make a request asking to show that this individual is pretty much the only individual capable of handling the position for the company here in the U.S. Nevertheless, each of these requests was answered in some capacity to still demonstrate that this individual had what the officer was looking for in a specialized knowledge worker.
    Finally, the RFE asked for documentation showing how this individual will make an impact on the company in the U.S. and if there is any alternative action that can be taken to fill his responsibilities. By asking for such documentation, the officer is basically making it appear that only if there is significant need for this person to be transferred to the U.S. will they be able to transfer to the U.S. Again, this is something not required in the statute, so even though it was restated that only those things that meet the definition of a person with specialized knowledge is required, we still provided statements from company executives to show how there was no one else to fill this position.
    In the end, our client's employee got his L-1B visa approved. By thoroughly answering each request made by the officer, the officer was left with no choice but to approve this case. Although we answered each request as best as possible, no response would be complete without referencing the proper statutes, case law, and the Adjudicator's Field Manual that governs the standard of one who holds specialized knowledge. By making reference to each of these guidelines, the officer is reminded of the limitations on the discretion in determining if the specialized knowledge standard has been met. L-1B visas may be difficult to get approved because of lengthy RFEs, but that does not mean that they cannot get approved. If your company has an individual with specialized knowledge of your company and you wish to transfer them to the U.S., feel free to contact our office for a free consultation on what can be done to get your case approved.

  2. The Forgotten Children of our Immigration System; By Danielle Beach-Oswald


    In a year in which Immigration and Customs Enforcement (ICE) was able to deport a record number of 400,000 individuals there is one group that has been forgotten - the children of illegal immigrants that are currently detained.  A new study by the Applied Research Center noted that there are currently 5,000 children in foster care because their parents are in ICE detention centers.  The study noted that if the situation doesn't improve over 15,000 children of illegal immigrants will also end up in foster care. Additionally, 46,000 of those deported in the first half of 2011 had US citizen children.  Although ICE has a policy of trying not to detain individuals who are the primary caretakers of children, one can't help but question whether ICE is truly implementing this policy.   The situation is especially bad in the Rio Grande Valley in Texas.   Often times, the distances between the child and the detention center further complicates the problem.  One troubling aspect of the study noted that children are likely to enter foster care after their mothers call the police for help from domestic abuse.  While these mothers should be able to receive U Visas, both they and their children suffer because of ICE's overly aggressive policies. 
    When a child whose parents are detained is in foster care, the struggle for them to have legal custody is difficult.  These parents often times cannot attend the hearings regarding the custody of their children.  Their ability to communicate with their children while in foster care is also a difficulty.
    A study released by the University of Wisconsin noted that children who are raised in the foster care system face difficulties in school and have lower probability of eventually attending college.  As many as 25% of adults who were raised in the foster care system need government assistance.  Additionally, males who were raised in the foster care system have a 25% to 35% chance of being arrested.  Children raised in the foster care system are more prone to problems like teen pregnancies.  Given the problems with our nation's foster care system, the children of illegal immigrants should not be punished because of the overly hostile nature of ICE's deportation policies.   
    Rather than allowing them to become productive members of society, ICE's immigration policy is shattering families.  The children of illegal immigrants - both those that are here legally and illegally - are entitled to things such as education.   It's time for ICE to truly implement the Morton Memo on Prosecutorial Discretion and realize that those that have children should not be targeted.  Otherwise, these children remain at risk and will face increased hurdles of becoming productive members of society. 
    Attached Thumbnails Attached Thumbnails Click image for larger version. 

Name:	12bf23e426.jpg 
Views:	42 
Size:	82.3 KB 
ID:	632  
  3. The Diversity Visa Program and Issues of National Security; By Danielle Beach-Oswald


    Once again, policy leaders are facing the difficulties of having to juggle between following our country's immigration laws and balancing the issue of national security.  It wasn't until soon after the September 11th terrorist attacks that the National Security Entry-Exit Registration System (NSEERS) was launched.  Although NSEERS was terminated in April of 2011, over 82,000 individuals from 25 nations complied with the registration requirements.    Now there are new concerns regarding the Diversity Visa Program and potential National Security Issues.
    According to Rep. Goodlette of Virginia, the Diversity Visa Lottery Program is "a national security threat."  Rep. Goodlette is the creator of the Security and Fairness Enhancement (SAFE) Act which is currently under debate in the House of Representatives.  If the bill becomes law, the SAFE Act will eliminate the Diversity Visa Lottery Program in its entirety.  Although it has passed the House Judiciary Committee, it's status remains uncertain as it has yet to go to the full House floor for a vote. 
    The Obama Administration is taking a different perspective on the diversity visa lottery program by labeling certain countries as "countries of interest."  Countries of interest are determined by the Transportation Security Agency (TSA) and any individual that has traveled through or holds a passport from such a country must go through stricter security measures when passing through Customs and Border Patrol in the United States.  TSA created the countries of interest category after a Nigerian terrorist attempted to detonate an underwear bomb on a flight bound for Detroit.   The current countries on the list are Afghanistan, Algeria, Iraq, Lebanon, Libya, Nigeria, Pakistan, Saudi Arabia, Somalia and Yemen.
    In the current phase of the Diversity Visa Lottery Program, the Department of State is considering the applications of over 9,036 individuals from such countries of high interest.    However, the SAFE Act doesn't remain a viable alternative to eliminating the Diversity Visa Lottery Program.  Although the Diversity Visa Lottery Program may have its problems, it remains one of the few ways that an individual can immigrate to the United States without a sponsor.  Rather than trying to eliminate the program because of National Security concerns, policy leaders should strive for enhanced background checks from countries of interest and capping the numbers from such countries rather than eliminating the Diversity Visa Lottery Program in its entirety.   
    Attached Thumbnails Attached Thumbnails Click image for larger version. 

Name:	1a8a778d57.jpg 
Views:	40 
Size:	16.0 KB 
ID:	633  
  4. The Diversity Visa Program and Issues of National Security; By Danielle Beach-Oswald


    Once again, policy leaders are facing the difficulties of having to juggle between following our country's immigration laws and balancing the issue of national security.  It wasn't until soon after the September 11th terrorist attacks that the National Security Entry-Exit Registration System (NSEERS) was launched.  Although NSEERS was terminated in April of 2011, over 82,000 individuals from 25 nations complied with the registration requirements.    Now there are new concerns regarding the Diversity Visa Program and potential National Security Issues.
    According to Rep. Goodlette of Virginia, the Diversity Visa Lottery Program is "a national security threat."  Rep. Goodlette is the creator of the Security and Fairness Enhancement (SAFE) Act which is currently under debate in the House of Representatives.  If the bill becomes law, the SAFE Act will eliminate the Diversity Visa Lottery Program in its entirety.  Although it has passed the House Judiciary Committee, it's status remains uncertain as it has yet to go to the full House floor for a vote. 
    The Obama Administration is taking a different perspective on the diversity visa lottery program by labeling certain countries as "countries of interest."  Countries of interest are determined by the Transportation Security Agency (TSA) and any individual that has traveled through or holds a passport from such a country must go through stricter security measures when passing through Customs and Border Patrol in the United States.  TSA created the countries of interest category after a Nigerian terrorist attempted to detonate an underwear bomb on a flight bound for Detroit.   The current countries on the list are Afghanistan, Algeria, Iraq, Lebanon, Libya, Nigeria, Pakistan, Saudi Arabia, Somalia and Yemen.
    In the current phase of the Diversity Visa Lottery Program, the Department of State is considering the applications of over 9,036 individuals from such countries of high interest.    However, the SAFE Act doesn't remain a viable alternative to eliminating the Diversity Visa Lottery Program.  Although the Diversity Visa Lottery Program may have its problems, it remains one of the few ways that an individual can immigrate to the United States without a sponsor.  Rather than trying to eliminate the program because of National Security concerns, policy leaders should strive for enhanced background checks from countries of interest and capping the numbers from such countries rather than eliminating the Diversity Visa Lottery Program in its entirety.   
    Attached Thumbnails Attached Thumbnails Click image for larger version. 

Name:	1a8a778d57.jpg 
Views:	21 
Size:	16.0 KB 
ID:	634  
  5. 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.
     
     
     
     
Put Free Immigration Law Headlines On Your Website

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers Enter your email address here: