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

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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.


 


 


 


 

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Comments

  1. Backlogged's Avatar
    From a personal account, being on H1B and going through the EB green card process has been one of the most frustrating things of my life as well. RFEs are common place and fact of H1B applications these days. Travel on H1B or going to consulate to get a visa for an approved H1B is another issue altogether.Now having gotten a green card and going through similar headaches with applying for spouse of LPR (who has an MBA and caught in her EB backlogs), its dejavu all over. I dont think any other country's immigration tries to push a perm resident spouse to wait it out for 3 yrs or disallow even dependent visas or visitor visa like US does. I guess its time I start looking at Canada.
  2. Roger Algase's Avatar
    Despite America's history as nation of immigrants, attitudes toward immigration, both among the public and among officials, are full of paranoia, if not outright hatred. I have seen this ever since I started practicing immigration law more than 30 years ago.

    But the situation has definitely become worse under the Obama administration. Regardless of which country one is from, the more capable and educated a particular visa applicant appears to be, the more suspicion his or her application generates.

    Nor do the problems end after one receives the USCIS approval and consular visa stamp. For example, an H-1B employer who successfully sponsors someone for that category has a good chance of receiving an unannounced visit from a USCIS investigator going on a fishing expedition to look for technical irregularities.

    Other successful H-1B or other employment based visa sponsors may receive visits, or subpoenas, from ICE, not to mention Labor Department officials going though I-9 forms to see if they can find unchecked boxes to use as a basis for imposing fines that are way out of proportion to the usually inadvertent record-keeping error involved.

    Canada sure looks good. It may look even better if Tea Party anti-immigrant crazies take over the White House and both Houses of Congress next year.
  3. Backlogged's Avatar
    US has gone back more than a few steps backwards since their overhaul of INS and growing economies elsewhere and added harassment from anti immigrant laws have only reinforced belief of deteriorating times.And the CIS bureaucracy with its multiple faces of USCIS,DOS(for visa bulletins and consulate interfacing),NVC,consulates interpreting and implementing their own versions of INA laws,the eventual loser is the beneficiary and the petitioner, most of whom follow the laws and try establish business and contribute to economy and taxes. And the Obama administration can start by having a less bureaucratic approach and a cohesive organization for immigration rather than this chaotic mess to start with.
  4. Roger Algase's Avatar
    I also want to make clear that I am not criticizing the attorneys or law firms who handled the two cases mentioned in my blogging in any way. I am sure that each of them did an outstanding job. My comment was only meant to illustrate the complexity of the legal issues involved in business immigration and the fact that there are two sides to the equation in every such case - the examiner's training and competence, and the lawyer's dedication and skill.
  5. Miss Mario's Avatar
    I agree about the problems with uneducated or unknowledgable examiners. And repetitive RFEs that request documents and information already in the record. It has happened time and time again. But please don't bring the Tea Party and your definition of "crazy" into it. One could say the same about the occupy crowd with better ammo.... I enjoyed and agreed with your points in this blog post...until I saw your comment in response. Can't we just leave the political argument OUT of it. CIS is a broken entity. With out of control examiners and "fraud hunters." And the adjudications system is dysfunctional (at best!). None of these problems at CIS has anything to do with whether one has a conservative or liberal/progressive outlook on the political process. It's a managment issue!
  6. Roger Algase's Avatar
    Yes, Miss Mario, incompetent immigration examiners are a management issue. But they are also political issue. As long as the Obama administration keeps on trying to kowtow to the antis on immigration by deporting 400,000 minority men, women and children each year; and as long as Tea Party lunatics keep putting through laws in places like Alabama and Arizona that would make unauthorized immigrants into less than human beings - as long as someone who called for the electrocution of thousands of immigrants at the Mexican border is still taken seriously as a presidential candidate, we will continue to get bad immigration agency decisions - even though I see that the wrote Greg Siskind wrote about on November 3 was finally reversed!
  7. Roger Algase's Avatar
    I meant: "the decision Greg Siskind wrote about on November 2".
  8. Miss Mario's Avatar
    Like I said, your article did a pretty good job of keeping the politics out...unfortunately you can't seem to in the follow up. I am a conservative and believe people here in violation of our immigration laws should be removed, esp. if they are convicted of crimes here. You and I are not going to agree on that point, and we must agree to disagree. You may never come over to the "right ;-) " side (remember the smiley face, keep your humour here!). That is, unless something bad happens to you, caused by an alien here unlawfully (such as what has happened to victims of crimes, duis, etc, committed by persons unlawfully present). Then you might see things a bit more clearly about the need to enforce our laws. (BUT, I wouldn't wish a crime to happen to you or your family in order to cause you to change your views, no matter how wrong I think them.)

    The only thing to do is to look on the bright side. If the CIS wasn't so dysfunctional of course we wouldn't be so secure in our jobs, would we? Even if those jobs are made more stressful due to crazy RFEs and nutty decisions!
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