by Cyrus D. Mehta, ABIL Lawyer
The Insightful Immigration Blog

It is already hard enough for an immigration lawyer to represent a foreign national client in an immigration proceeding, given the language and other cultural barriers, along with the fact that immigration law can be extremely complex and unforgiving. On top of this, an immigration lawyer who represents a foreign national client with mental competency issues faces even greater challenges, including ethical conundrums.

To what extent can a lawyer represent a client who may not even have the capacity to consent or to comprehend the fact that there is a lawyer who can assist him or her? This client may be discovered in immigration custody while in the middle of complex removal proceedings. The lawyer may also encounter a client with mental competency issues who may need to file for immigration benefits such as adjustment of status or naturalization.  This issue has gained even more importance in light of the mandatory appointment of counsel for unrepresented respondents in immigration custody who have mental disorders.

While clients with diminished mental capacity also include children, this blog focuses on the challenges that lawyers face in representing clients with mental disorders. The first breakthrough with respect to the development of safeguards came about in Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011),  where the Board of Immigration Appeals held that for an alien to be competent to participate in an immigration proceeding, he or she must have a rational and factual understanding of the nature and object of the proceeding and a reasonable opportunity to exercise the core rights and privileges afforded by the law.  The decisive factors are whether the respondent understands the nature and object of the proceedings, can consult with the attorney or representative, and has a reasonable opportunity to examine adverse evidence, present favorable evidence and cross examine government witnesses.  Further guidance relating to Matter of M-A-M- can be found in the excellent practice advisory of the Litigation Action Center.

Subsequently, in Franco-Gonzales v. Holder, No. 10-02211 (C.D. Cal Apr. 23, 2013),  a class action law suit, the court ordered that non-citizen detainees with severe mental disabilities in Arizona, California and Washington be provided qualified legal representatives at government expense in removal and bond proceedings. The court also ordered bond redetermination hearings for those detained more than 180 days. The EOIR on December 13, 2013 issued guidelines to provide enhanced procedural protection to unrepresented detained respondents with mental disorders. These guidelines are more robust than the principles set forth in Matter of M-AM-, and require an assessment of eight competencies in order to determine whether the respondent is competent to represent him- or herself:

A rational and factual understanding of:

• The nature and object of the proceeding;
• The privilege of representation, including but not limited to, the ability to consult with a representative if one is present;
• The right to present, examine, and object to evidence;
• The right to cross-examine witnesses; and
• The right to appeal

A reasonable ability to:

• Make decisions about asserting and waiving rights;
• Respond to the allegations and charges in the proceedings; and
• Present information and respond to questions relevant to eligibility for relief.

If a detained respondent is unable to perform any one of the above functions, then he or she is unable to represent him-or herself. An Immigration Judge is required to detect facts suggesting incompetency, conduct a judicial inquiry, and follow up with a competency review. If the Immigration Judge determines that a respondent is not competent to represent him-or herself, the EOIR may provide a qualified representative who is found to be incompetent to represent him-or herself. While this elaborate process to determine whether a respondent is competent or not is a good first step, one wonders why this process is conducted on behalf of a respondent without the presence of a lawyer. This writer believes that the respondent should have a legal representative earlier in the process, when his or her competency is being evaluated.

Even when a lawyer is appointed by the court to represent a respondent who is not found to be competent, there is a potential for conflict of interest as the appointment will generally only last while the client is detained. If the client is bonded out, the lawyer will no longer be paid by EOIR after the client is released. This creates an ethical dilemma. If the client desperately needs the assistance of a lawyer who is paid by the government, he or she can only be represented by counsel at government expense while in immigration custody.  Would it be in the client’s best interest to be released but not to have appointment counsel, or rather to have appointed counsel while in custody? This might be easier to resolve if the client could make decisions and provide informed consent, but clients with severe mental disabilities might be unable to make informed decisons.

On the other hand, there are no safeguards relating to non-citizens applying for immigration benefits outside a custodial setting. Practitioners representing clients with mental disorders should advocate for the application of the safeguards enunciated in Matter of M-A-M even outside a removal hearing, which include:

Lawyers must also consult ABA Model Rule 1.14, and its analog in a state bar ethics rule, which relates to representing a client with diminished mental capacity. Rule 1.14 instructs a lawyer to maintain a normal lawyer-client relationship as far as possible. Thus, to the extent that an impaired client is capable of making competent decisions, the lawyer must follow them. A lawyer may seek help from a family member or others in communicating with a client with a mental disorder, while at the same time taking into consideration whether the presence of others would affect the attorney-client privilege.

This writer has represented clients for benefits applications, and has found it extremely useful to communicate with the client through trusted family members. A client with a mental disorder may have moments of lucidity, and it is important for the lawyer to ascertain how best to work with such a client through a professional diagnostician. At the benefits interview, counsel must insist that the USCIS generously provide accommodations for a client, including having the presence of a family member during the interview and to only ask the most basic questions, while relying on documentary evidence to determine eligibility for the immigration benefit. Note that 8 CFR 103.2(a)(2) allows a legal guardian to sign a form for a person with mental disabilities.

With respect to applying for naturalization, the law has developed favorably towards persons with disabilities. Applicants who are physically or developmentally disabled, or have mental impairment are exempt from the English as well as civics/history test. Applicants may also seek a waiver of the oath requirement if they are unable to comprehend it. Designated representatives can complete the Form N-400, such as a guardian, surrogate, US citizen spouse, parent, son, daughter or sibling. It is potentially possible for a comatose applicant on a respirator to be able to apply for and obtain US citizenship, and sponsor a qualifying spouse through an I-130 petition, who in turn files his or her own adjustment application for lawful permanent residence.

Rule 1.14 also allows a lawyer to take reasonably protective action when a client is at risk of harm by either consulting with individuals or entities, and in appropriate cases, seek the appointment of a guardian or guardian ad litem. The lawyer may be impliedly authorized to reveal information protected by rule 1.6, but only to the extent reasonably necessary to protect the client's interests. While resorting to the appointment of a guardian may appear to be an obvious step on behalf of one who is unable to comprehend the nature of the proceedings or consent to the representation, it may also be a traumatic and expensive process, and may undermine the autonomy that the client is required to have under Rule 1.14. The guiding principles, as much as possible, are that the client determines the ends while the lawyer has control over the means.  According to Comment 7 to Model rule 1.14, “In many circumstances, however, appointment of a legal representative may be more expensive or traumatic for the client than circumstances in fact require. Evaluation of such circumstances is a matter entrusted to the professional judgment of the lawyer. In considering alternatives, however, the lawyer should be aware of any law that requires the lawyer to advocate the least restrictive action on behalf of the client.”

To the extent that a client with mental disorders can provide informed consent, the lawyer’s role is made that much easier. The challenge lies with a client who is unable to consent at all. Under these circumstances, should the lawyer still play an activist role and represent the client? Is counsel then always required to seek the appointment of a guardian? Or are there less restrictive alternatives such as seeking the assistance of family members in determining the client’s best interests.   If counsel has been appointed by an immigration judge, how relevant is the client’s incapacity to consent if the lawyer believes it is still in the client’s best interests to have a legal representative? 8 CFR 1292.1(a)(1) &(a)(4) state, without reference to consent, that attorneys are entitled to appear in removal hearings. An attorney can play a crucial role on behalf of a client who is unable to consent.  Indeed, if the goal is for the respondent to remain in the United States (but that may only be assumed if the client is unable to comprehend the nature of the immigration proceeding), the very fact that a respondent may have a mental disorder may prompt an immigration judge to consider granting asylum if the respondent will be removed to a country that is unable or unwilling to protect its citizens with mental disorders. An immigration judge may also grant cancellation of removal pursuant to INA section 240A(b) if the documentation is able to demonstrate eligibility, such as 10 years of physical presence, good moral character and the qualifying relatives, who may be US citizens or permanent residents, are able to demonstrate exceptional and extremely unusual hardship.  There may be times, especially with clients who cannot seek relief, to advocate for administrative closure of the case or even termination. Again, when the client is unable to consent, would administrative closure or termination be in the client’s best interest over being removed from the United States and being with close family members abroad?

There is much work that needs to be done to develop standards and provide clearer guidance.  In the meantime, the lawyer must grapple with emerging standards from the courts and EOIR, as well as interpret Rule 1.14 within the immigration context, although not all states have adopted this rule.  While representing non-citizen clients with mental competency issues can pose additional challenges, obtaining a successful outcome for the client under difficult circumstances can be extremely rewarding to the immigration lawyer.

"The test of our progress is not whether we add to the abundance of those who have much. It is whether we provide enough to those who have little.”
Franklin D. Roosevelt

by Stephen Yale-Loehr, ABIL Lawyer
Immigrant Investor Insights

A State Department official speaking at an immigration law conference in Washington, DC on April 11, 2014, warned that higher than anticipated usage in the EB-5 immigrant investor green card category may require the State Department to impose a cut-off date this summer. If so, this would be the first time the EB-5 category would have a backlog in its 24-year history.

As background, every employment-based (EB) immigrant visa category has an annual limit. For EB-5, it is approximately 10,000 visas a year. That number includes principal EB-5 investors, their spouses, and their children under 21.

The State Department publishes a Visa Bulletin each month to let people know which green card categories are backlogged and by how much. The Visa Bulletin is available at http://travel.state.gov/visa/bulletin/bulletin_1360.html. If the Visa Bulletin says a certain category is “C,” that means the category is “current” and has no backlogs other than the processing times at the U.S. Citizenship and Immigration Services (USCIS) and the State Department’s National Visa Center (NVC). If a date appears for a certain category, that means the category is backlogged, or “retrogressed,” and the State Department is setting up visa interview dates only for people who have started their green card process before the date indicated on the Visa Bulletin. That date is known as the person’s “priority date.” For EB-5 cases, a person’s priority date is the date the USCIS receives their I-526 petition.

So far the number of people receiving EB-5 visas each year has never reached the annual limit, so the category has always been “current.” As usage has increased recently, however, the State Department has warned that it may need to set a cut-off date. The State Department’s announcement on April 11 cautioned that it may not be until June or later before it decides whether or when to impose a waiting list for EB-5 investors. The State Department also did not indicate how long the backlog might be.

Investors from mainland China constitute about 80% of all EB-5 petitions. The State Department would create a waiting list for Chinese investors first to make certain that some EB-5 green cards remain available for investors from other countries.

For more information about EB-5 retrogression generally, see https://millermayer.box.com/s/b9ittptj1gsqt351cd4f.

We will continue to monitor the situation. In the meantime, investors should file their I-526 petitions as soon as possible so that their EB-5 priority date will be as early as possible. This will help them when EB-5 retrogression occurs.

The usual required legal disclaimers (we ARE attorneys, after all): Transmission of this information is not intended to create, and receipt by you does not constitute, an attorney-client relationship. This blog is for informational purposes only, and is primarily intended as a service to our clients and friends.  It is not intended as legal advice for any particular situation. If legal advice or other expert assistance is required, the services of a competent professional should be sought. Prior results do not guarantee a similar outcome.

by Angelo Paparelli, Past ABIL President
Nation of Immigrators

[Blogger's note:  An anonymous immigration lawyer offers this lament on the woeful quality of adjudications at U.S. Citizenship and Immigration Services (USCIS).  For related wailing, see:  “ 'I Hate [Bleep]ing Immigration Law’ — Whenever I Get an Unjust Request for Evidence,” “End the Tyranny of Immigration Insubordination,” and “Immigration Indifference – The Adjudicator’s Curse.”]

Dear Immigration Colleagues:

On my doctor’s advice, I am considering changing careers. Like perhaps many of you, helping clients overcome unreasoned decisions and ludicrous requests for evidence year in and year out has taken its toll on my blood pressure. The quality of adjudications by USCIS seems to be declining even further, unfortunately, and I figure now is the time to get out while I am still living.

A string of recent O-1 RFEs [Requests for Evidence], and NOIDs [Notices of Intent to Deny] from the USCIS California Service Center reveal a new disturbing trend.  The best and brightest, including the very STEM PhDs to whom the Senate and much of the House would essentially just give green cards, now find themselves in the crosshairs of the USCIS such that they are being prevented from even coming to work, or continuing to work, temporarily. We just recently received a Notice of Intent Deny, for example, for the fifth O-1 extension for the CEO and founder of a very successful U.S. technology company.

Unfortunately, the example above is not a one-off training issue, despite what the USCIS brass might say when they read this piece ( I will be sending it to them). We have confirmed with other colleagues that O-1 petitions filed for top notch STEM PhDs, supported by voluminous awards, recommendations, patents, and publications are being stopped in their tracks, and told that such evidence does not show that they meet any of the O-1 criteria.  Do these government officials know that these are the guys whom just about everybody in Congress agrees we should actually be encouraging to come here? Shouldn’t this general understanding of our policy inform officers’ discretion in these matters?   Where is the disconnect between us, our duly elected officials, and the officers adjudicating these cases?

Bureaucrats like the one who is intent on denying our client’s case can have a profoundly negative impact on peoples’ businesses and lives, not to mention the U.S. economy as a whole. Sometimes, this can be fixed. The impact on an attorney’s health year after year, however, may not be reversible. That is why I figure it is time leave.  Of the many careers I have considered, I have thought about becoming a screenwriter of spy thrillers. Dealing in fiction, where no one actually gets hurt by rogue government officials, would seem to be a better way to live a longer, healthier life.  Before I make the leap, I wanted to share with you my pitch for one screenplay idea. It is a sequel to one of the early James Bond thrillers, with a science fiction twist (Please be gentle in your criticism. My nerves are a bit weak these days).

Here it is:

That is as far as I have gotten with the screenplay. I still need help coming up with an ending, and am having a hard time imaging a happy one.  I look forward to your ideas.

by Cyrus D. Mehta, ABIL Lawyer and Gary Endelman
The Insightful Immigration Blog

All the forces in the world are not so powerful as an idea whose time has come.
-Victor Hugo

Sometimes it takes a while for a sound idea to gain acceptance. Granting employment authorization to H-4 spouses of H-1B visa holders is a good example. It is in line with the policies of other countries, and if the United States wishes to attract the brightest and the best, such an individual may be dissuaded from coming to the United States if the spouse is not allowed to work.  This is especially true if the H-1B workers have to wait for several years before they and their families can apply for permanent residency.

Almost 4 years ago, then USCIS General Counsel Roxanna Bacon, Service Center Operations Head Donald Neufeld and Field Operations Chief Debra Rogers recommended that H-4 spouses  be granted employment authorization to USCIS Director Alejandro Mayorkas, but only for those "H-4 dependent spouses of H-1B principals where the principals are also applicants for lawful permanent residence under AC 21." Memorandum, Administrative Alternatives to Comprehensive Immigration Reform. The memo was leaked by those who wanted to defeat any administrative initiatives and they did so. There matters stood until January 31, 2012 when the Department of Homeland Security brought this idea back to life.

On May 6, 2014, the Department of Homeland Security (DHS)   announced that it would allow certain H-4 spouses to obtain employment authorization. The proposed rule provides that an H-4 spouse may apply for employment authorization if  the principal H-1B spouse is the beneficiary of an approved I-140 immigrant petition; or, if the H-1B spouse  been granted an extension of beyond the 6-year limitation pursuant to section 106(a) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21). Under section 106(a) of AC 21, the filing of a labor certification or employment-based immigrant visa petitions 365 days prior to the sixth year allows the H-1B worker to apply for an additional year be yond the sixth year.

In Tyranny of Priority Dates and subsequent articles, we pointed out the long delays befalling skilled immigrants due to the backlogs in the priority dates, and proposed remedial measures, including the ability of an H-4 spouse to work. Our prior analysis of H-4 spousal employment and earlier indications that the USCIS recognized the problem and intended to do something about it provide a helpful context against which the importance of this latest development can be measured.

The proposed rule to grant work authorization to H-4 spouses is much welcomed recognition of this problem. It acknowledges the contributions of foreign born immigrants, especially in the tech industry, and cites the findings of Vivek Wadhwa that in 25% of tech companies founded between 1995-2005, the chief executive or lead technologist was foreign born.  Indeed, the preamble to the proposed rule acknowledges that certain beneficiaries of I-140 petitions under the India EB-3 preference may have to wait over 10 years to obtain permanent residence. In the meantime, the H-4 spouse cannot seek employment, and is also prohibited from other work related activities such as engaging in self-employment through a home based business. While only Congress could create new visa categories, we argued that the Executive under section 103(a) of the Immigration and Nationality Act was charged with the administration and enforcement of the INA. Also, the Executive had authority to grant work authorization to any aliens under INA section 274A(h)(3). Under these provisions, we had proposed that the Executive could provide relief for beneficiaries, including spouses, of approved I-130 and I-140 petitions through the grant of employment authorization who were caught in the crushing backlogs. After all, these people were in the pipeline for the green card, but for the backlogs in the priority dates.  The H-1B visa also allows for “dual intent,” as it permits one to apply for permanent residency even though it is technically a nonimmigrant visa.

The proposed rule now recognizes, as we did in The Tyranny of Priority Dates, the ability of the Executive to pass ameliorative measures in the face of crushing delays for those in the green card queue.  While Congress has still not been able to pass a reform of the broken immigration system, the proposed rule  further acknowledges that the Executive has the legal authority to authorize spousal employment pursuant to INA sections 103(1) and 274A (h)(3) Resting on this foundation, the proposed rule further relies on INA sections 214(a)(1), which authorizes the Executive to prescribe regulations setting forth terms and conditions with respect to the admission of nonimmigrants into the United States.  Recognizing that H-1B workers and their spouses would be green card holders but for the backlogs in the priority dates, Commerce Secretary appropriately stated, “These individuals are American families in waiting.”

The granting of work authorization to H-4 spouses if the principal spouse has applied for an AC 21 extension also resolves the conundrum when both spouses are on H-1B visas and are reaching the sixth year on their H-1B visas. Under this situation, the spouse who was not the subject of a labor certification was generally forced to switch to H-4 status, and was then prohibited from continuing employment.  In Two H-1B Spouses: One Labor or Certification we advocated how both spouses could take advantage of the labor certification filed on behalf of one of the spouses in order to get a seventh year extension. While there is a sound basis to argue that AC 21 would benefit the spouse who was relying on the labor certification filed on behalf of the labor certification, since this is the basis for their adjustment of status,  the USCIS did not always interpret AC 21 section 106(a) broadly to benefit both spouses. Now, thankfully, this uncertainty will no longer exist. The spouse who is not the subject of the labor certification can switch to H-4 status and can still apply for work authorization. At the same time, we still advocate that a spouse on an H-1B visa be able to rely on the other spouse’s labor certification or I-140 to seek an H-1B extension beyond the sixth year limitation. There will be occasions when it is more expeditious for the spouse to file an H-1B extension and continue working, rather than file for a change of status to H-4 and then apply for an employment authorization document before re-starting work again. This is an excellent illustration of how doctrinal clarity by the USCIS can promote robust operational flexibility by aliens and their advocates.

The proposed rule also resolves another uncertainty. H-4 spouses who were able to file an I-485 adjustment of status application for permanent residency could always apply for work authorization by virtue of filing the I-485 pursuant to 8 CFR 274a.12(c)(9). What was not clear is whether such H-4 spouses forfeited their right to remain in H-4 status if they engaged in work pursuant to an employment authorization under 8 CFR 274a.12(c)(9) while their I-485 applications remained pending. The proposed rule in footnote 13 appears to suggest that they did not violate their status. The rule will create  8 CFR 274a.12(c)(26) as a basis for H-4 spouses to apply for work authorization, and suggests that H-4 spouses who previously availed of work authorization under 274a.12(c)(9) can also avail of work authorization under 274a.12(c)(26). If the spouse lost H-4 status by engaging in employment pursuant to 274a.12(c)(9), it would not be possible for the H-4 spouse to now take advantage of new 274a.12(c)(26).  As with the H-1B  itself, the proposed H-4 rule recognizes and diffuses the tension between the constraints of nonimmigrant visa categories, such as the H-1B which is employer-specific or the H-4 that  hitherto was not allowed to sustain employment, and the adjustment of status provision in INA Section 245 that grants open market employment.

Many advocates feel that the rule did not go far enough and could have granted work authorization for all H-4 spouses without condition.  After all, the L-1 and E visas, allow dependent spouses to apply for  work authorization immediately upon being admitted under those statuses. On the other hand, the authorization to grant spouses of L and E nonimmigrants work authorization stems from Congress, although J-2 spouses who do not support the principal J-1 exchange visitor work solely through regulation Congress has not specifically authorized work authorization for H-4 spouses, although there is authority in the INS, as discussed, which still provides such authority to the DHS. While this is fair criticism, the Administration also faces withering opposition from anti-immigration advocates, including the likes of Senator Charles Grassley (R-IA), who question whether there is any authority at all to grant work authorization. Hence, the middle ground to grant work authorization benefits to H-4 spouses who are already on the pathway to permanent residence but are caught up in the backlogs. The proposed rule also acknowledges that this ameliorative measure is consistent with AC 21, which was enacted so that the principal H-1B spouses could continue to remain in the United States beyond the sixth year, and thus avoid disruption to US employers. Limiting work authorization to H-4 spouses who are on the pathway to green cards can also more easily insulate such a rule from challenges in federal court.

Still, even under this logic, it would be preferable if H-4 spouses are able to apply for work authorization as soon as a labor certification is filed on behalf of the principal spouse. There is no need to pre-condition the grant of employment authorization upon the approval of the I-140 petition, given the delays in the PERM labor certification process, which can take two years if the application is subject to an audit or to supervised recruitment. The rule also recognizes that an H-4 can apply for employment when a labor certification is filed, but only when it is used to obtain an H-1B extension beyond the six years under AC 21. It is illogical to only allow the H-4 to apply for a work permit when the principal spouse relies on the labor certification to seek an extension beyond six years, and not otherwise. Furthermore, while the majority of H-1B visa holders may be sponsored by employers through I-140 petitions, some H-4 spouses may also be sponsored by prospective employers in their own right. H-4 spouses who are directly sponsored by employers under an I-140 petition should also be allowed to apply for employment authorization. And why limit this to only I-140s? Some H-1Bs or H-4s are also sponsored by qualifying family members through an I-130 petition. They too are Americans in waiting.

Finally, children in H-4 status have been left out and do not have the ability to apply for work authorization. Children of L-1 and E-1 visa holders are also not allowed to work, although children of J-1 visa holders can work. On the other hand, H-4 children can obtain work authorization benefits if they switch to F-1 student visa status.

We continue to call upon Congress to enact comprehensive immigration reform, including the expansion of H-1B visa numbers.  Any administrative initiative, however meaningful or positive, and this one is both, is, by its very nature, both tentative and subject to reversal. Only an INA worthy of the many difficult but exciting challenges that America must confront and master in the 21st century can provide the nation with the vision that it needs and deserves. Yet, until that happy day comes, the USCIS can and must do justice with the law that we all have. That is what has finally happened with H-4 spousal employment. Not a full and complete step certainly, but a stride forward towards a better day.

Something else needs to be said before we go. What we in the United States are dealing with is a global battle for talent. More than any other single immigration issue, the H-1B visa debate highlights the growing and inexorable importance of a skilled entrepreneurial class with superb expertise and a commitment not to company or country, but to their own careers and the technologies on which they are based. They have true international mobility and, like superstar professional athletes, will go to those places where they are paid most handsomely and given a full and rich opportunity to create. We are no longer the only game in town. The debate over the H-1B is, at its core, an argument over whether the United States will continue to embrace this culture, thus reinforcing its competitive dominance in it, or turn away and shrink from the competition and the benefits that await. No decision on H quotas can or should be made separate and apart from an answer to a far more fundamental question: How can we, as a nation, attract and retain that on which our prosperity most directly depends, namely a productive, diverse, stable and highly educated work force irrespective of nationality and do so without sacrificing the dreams and aspirations of our own people whose protection is the first duty and only sure justification for the continuance of that democracy on which all else rests? This is the very heart of the H-1B maze.

An immigration system that restricts the importation of human capital hurts American competitiveness every bit as much as high tariffs or artificial subsidies. In each case, the controlled but predictable flow of capital across national boundaries is the lubricant of economic activity. Preserving the H-1B as an instrument of job creation for Americans while enhancing the ability of foreign professionals to make our cause their own is an essential and irresistible component of comprehensive immigration reform. Allowing some, though not all, H-4 spouses to work is a key step in this direction. The DHS estimates that 100,600 H-4 spouses will apply for work authorization in the first year and 35,900 will initially apply in subsequent years. For those concerned about the impact on the US labor market, these H-4 spouses would in any event be able to work once the principal H-1B spouse applied for adjustment of status. They will also be able to contribute to the US economy, and the incentive provided to them will also encourage the H-1B spouse to stay on in the United States. We have every good hope that is will lead to ever more confident strides in the days to come. It is in the very nature of reform in the liberal tradition for progress to be incremental.  If the Chinese maxim that “the journey of a thousand miles begins with a single step,” retains its power to teach,  as we believe it surely does, we who legitimately want much more than the H-4 spousal regulation offers should not, even for a single moment, divert our eyes from the very real progress that has now been taken.

by Angelo Paparelli, Past ABIL President and Maura K. Travers
Nation of Immigrators

History is about to repeat itself. Fraud Detection and National Security (FDNS), a directorate of  United States Citizenship and Immigration Services (USCIS), is set to embark on another foray of surprise visits to Corporate America, seeking to determine whether employers petitioning for work-based immigration benefits have kept their word.

First employers of R-1 religious workers were the target of scrutiny, and then sponsors of H-1B workers in specialty occupations heard the knock on the door (see  ”Immigration Promises Made, Debts Unpaid,” “Immigration Mission Creep and the Flawed H-1B Report on Fraud and Abuse,” and “A Cancer within the Immigration Agency“).

Soon petitioners seeking L-1 intracompany transferees should expect an FDNS site visit.  Just as with the R-1s and H-1Bs, perceived abuses have led to these visitations (see U.S. Department of Homeland Security, Office of Inspector General Reports, “Implementation of L-1 Visa Regulations,” and “Review of Vulnerabilities and Potential Abuses of the L-1 program,”  and “What the ‘L’ is Going on with USCIS?”).

Here’s the scoop.  In an April 24, 2014 stakeholder teleconference, FDNS’s Associate Director, Sarah Kendall, confirmed plans to expand the Administrative Site Visit and Verification Program (ASVVP) to include all L-1 employers.

Background

Under ASVVP, FDNS Officers conduct random, unannounced pre- and post-adjudication site inspections to verify information contained in certain visa petitions (typically, H-1B petitions).  In fiscal year (FY) 2011, FDNS performed more than 17,000 ASVVP site visits, an increase of over 2,000 visits from the previous fiscal year.

Context

The expansion of the site visit program comes in response to an August 2013 report released by the U.S. Department of Homeland Security’s Office of Inspector General (OIG) analyzing USCIS’ L-1 intracompany transferee program and suggesting ways to reduce fraud and standardize adjudications across the program.  Initial evidence suggested that USCIS would focus this expanded site visit effort on extensions of individual L-1 new office petitions originally filed with USCIS Service Centers.

Update

During the April 24th teleconference,  USCIS confirmed plans to administer a phased roll-out of ASVVP to include site visits to all L-1 employers.  Although listeners were left wanting for specific details regarding an anticipated timeline for this phased expansion, USCIS confirmed that the first phase will focus on all L-1A extension petitions filed with USCIS.  Furthermore, USCIS confirmed that a pilot program and inspector training are scheduled to be completed by the end of FY 2014.

In line with the existing ASVVP, L-1 site visits will be conducted randomly based on data gathered from Form I-129.  Although USCIS indicated that it ultimately plans to include L-1 Blanket applicants in the site visit program, the agency did not specify what data will be utilized for the random selection process, because L-1 Blanket applicants do not file Form I-129 with USCIS.

USCIS indicated several areas that inspectors will focus on during L-1 site visits:

• Does the business exist?

• Does the business appear to be ‘in business?

• Was contact made with the signatory of the petition or the Human Resources representative?

• Did the signatory or Human Resources representative have knowledge of the petition and of the beneficiary?

• Was the beneficiary available to be interviewed?

• Was the beneficiary working for the business?

• Was the beneficiary knowledgeable, forthcoming, and performing same duties as represented in the petition?

• Is the beneficiary being paid the salary as indicated in the Petition?

Anticipated Issues

While USCIS attempted to assure stakeholders that the random site visit program should raise no concerns for honest L-1 employers, listeners may have been left with a different impression.  It is evident that USCIS has not reconciled some key differences between the H-1B and L-1 visa categories with respect to specific site visit protocols.  For example, in order to file an H-1B petition, an employer must first obtain an approved Labor Condition Application (LCA) from the Department of Labor (DOL).[1]  The LCA includes an attestation to the DOL that the employer will offer the H-1B nonimmigrant the prevailing wage in the intended geographic area of employment.[2]  As such, an employer must accurately indicate the H-1B beneficiary’s salary and worksite location in the petition to ensure compliance with the law.

However, there is no LCA requirement in the L-1 context.  Therefore, the DOL does not regulate L-1 salaries within specified geographic areas.  In fact, an employer is not required to file an amended L-1 petition unless: (1) there is a change in the L-1 beneficiary’s capacity of employment (i.e., from a specialized knowledge position to a managerial position); (2) there is a material change to the L-1 beneficiary’s job duties affecting L-1 eligibility; or, (3) there is a change in the qualifying relationship between the U.S. petitioner and its foreign entities.[3]

As such, under the current law, an L-1 beneficiary’s worksite, salary, and job duties are subject to change without notice to USCIS. Therefore, FDNS inspectors relying on data contained in the Form I-129 may not possess the most up-to-date information at the time of inspection.  An L-1 employee selected for inspection may no longer be present at the worksite indicated in the petition.  Furthermore, it is not entirely clear what USCIS hopes to gain by auditing information about the salaries and job duties of L-1 beneficiaries, considering there is no regulatory requirement for continued compliance with the original petition.

According to the agency, the initial site visit will not be determinative. If the beneficiary has moved to a different work site, the site inspector will follow up with the company to confirm the L-1 beneficiary’s new work site, salary, and job duties.  The site inspector will take into account the particularities of the L-1 category into consideration before completing a compliance review report and submitting it for supervisor review.  However, it remains unclear how follow-up with the employer will occur and how the supervisor review process will work in practice.

While compliance in the H-1B context is straight forward due to the LCA requirement, the standard for compliance in the L-1 context is less clear.  To date, USCIS has provided little guidance regarding L-1 compliance.  Therefore, sending FDNS officers on site visits to investigate employers’ compliance with the L-1 program seems frivolous at best.

Preparing for the Foreseeable

With or without further guidance from USCIS, L-1 employers should be prepared for FDNS site visits.  Employers should take these visits seriously and contact an immigration attorney as soon as an FDNS site visitor appears.  Identify procedures in advance to prepare for an unannounced FDNS worksite visit and notify all personnel of these procedures.  Always provide complete and accurate information whether requested to do so onsite or subsequently via email.  According to USCIS, the ASVVP is a voluntary program.  The employer has a right to terminate a site visit at any time.  If the officer has not gathered the required information, the officer will follow up with the employer via telephone or email to obtain additional information to complete the compliance review.  An attorney can help prepare a timely and thorough response.

Employers should conduct an internal review of the employment of all L-1 employees to ensure that their job duties, worksites and salaries are readily available.  Retain complete copies of all I-129 petitions and paperwork.  Ensure that foreign national employees and their managers are aware of the content of the I-129 petition and supporting documentation.  While there is currently no requirement to file an amended L-1 petition due to minor changes in employment, employers should be prepared to provide complete and accurate information about L-1 beneficiaries to site inspectors either on site or in response to follow-up inquiries by an inspector.  For general background on investigation preparedness, see “No Skating on Thin ICE: Using Enforcement Preparedness Policies to Prevent Drowning in Frigid Immigration Waters.”
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[1] 8 CFR §§214.2(h)(4)(i)(B)(l) and 214.2(h)(4)(iii)(B)(l); 20 CFR §655.700(a)(3) and (b); INA §212(n)(1).

[2] INA §§212(n)(1)(A)-(D); AFM ch. 31.3(b): H-1B Classification and Documentary Requirements.

[3] 8 CFR §214.2 (l)(7)(C)