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  • Article: Bait-and-Switch, USCIS-Style by Kenneth White

    Bait-and-Switch, USCIS - Style1


    Kenneth White

    Reader Quiz: What is the difference between these two regulations?

    Executive capacity means an assignment within an organization in which the employee primarily: ( 1 ) Directs the management of the organization or a major component or function of the organization; ( 2 ) Establishes the goals and policies of the organization, component, or function; ( 3 ) Exercises wide latitude in discretionary decision-making; and ( 4 ) Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.

    Executive capacity means an assignment within an organization in which the employee primarily: (A) Directs the management of the organization or a major component or function of the organization; (B) Establishes the goals and policies of the organization, component, or function; (C) Exercises wide latitude in discretionary decision-making; and (D) Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.

    Answer: 2-3 Years and a Lifetime. You see, the former is the regulation which governs how USCIS decides whether or not to approve an executive’s L-1A status for three years or, in the case of an extension of a new office petition, prolong his L-1A status for two years. 8 C.F.R. § 214.2(l)(1)(ii)(C). The latter is the regulation which governs whether or not the executive will be granted permanent residency status pursuant to the EB-1-3 category. 8 C.F.R. § 204.5(j)(2). The statute defining executive capacity for the granting of L-1A status and EB-1-3 immigration, INA Section 101(a)(44)(B), is identical. Other than the numbers and letters, you don’t see a difference? Neither do I.

    But USCIS does. For the former, USCIS is relatively flexible in authorizing three-year L-1A status or extending for two years the L-1A status of individuals acting in an executive capacity. For the latter, however, USCIS moves the goal posts – subjecting the company-petitioners and the individual beneficiaries filing for a green card to heightened scrutiny and grafting additional unwritten requirements on to be considered an executive. This is not an anomaly. In fact, USCIS recognizes that “many” I-140 immigrant petitions are denied after L-1 approvals.2

    How does USCIS justify this disparate treatment? Simple. It states that examiners spend more time on immigrant petitions and so are able to delve into more detail than examiners on L-1 petitions.3 It says that the stakes are higher for immigrant petitions and that heightened scrutiny is justified;4 it treats the green card as a Holy Grail, reserved for the truly worthy who will have the ability to naturalize. Each petition is a “separate record of proceeding with a separate burden of proof” and “must stand on its own merits.”5 Finally, USCIS asserts that it is not bound by “errors” made by L-1A examiners, that it would be “absurd to suggest that USCIS or any agency must treat acknowledged errors as binding precedent.”6

    To illustrate, take the case of Andrey, the head of a successful travel agency. After operating his own tour enterprise and travel agency in Russia for more than a decade, he set out to establish a similar business in the US. His US company filed a new office L-1A petition on his behalf so that he could work as the CEO. The petition was approved, and he received a one-year L-1 visa. Over the course of the year, he developed his business in the United States, managing to reach sales of $1 million, turning a profit, and hiring 5 Americans.

    His company then filed an L-1A extension petition. USCIS approved that petition, i.e., it deemed Andrey to be working as an executive and that he would continue to act in an executive capacity. A month later, the company filed an almost identical package of documents in support of its petition for Andrey’s green card. This time, USCIS resisted, first sending out a burdensome Request for Evidence questioning whether Alex was indeed working as an executive. After submitting a voluminous response addressing each of the points raised, USCIS denied the petition, stating that he is not working as an executive and will not be working as an executive. Implicit in the decision – heading up a 6-person company does not suffice to qualify as an executive.

    Andrey’s company filed an appeal. But rather than finding legal succor, it found an echo chamber: the Administrative Appeals Office repeated the assertions of the Service Center, namely, that it is not bound by the “mistake” of an L-1 examiner. Later that year, not surprisingly, his company’s L-1A extension petition on his behalf was approved again for another two years.

    This beat has been going on for years. In 2012 alone, the author found numerous AAO decisions in which the beneficiary was in the US in L-1A status, only to have his or her I-140 green card petition denied on executive or managerial capacity grounds. Even before reaching the AAO, the USCIS has planted the poison seed for inconsistent decisions by mandating that companies file L-1 and immigrant petitions at different Service Centers with different examiners: L-1s at the California and Vermont Service Centers, immigrant petitions with the Texas and Nebraska Service Centers.

    Contrast the above with the public pronouncements made by USCIS: how it welcomes entrepreneurs to the US, how it established an entrepreneur-in-residence program, that small business makes up the backbone of American economy. .. Just recently, in the EB-5 context, USCIS espoused the importance of deference to previous agency determinations. Such a policy of deference to previous decisions “ensures predictability” for business, “and also conserves scarce agency resources, which should not ordinarily be used to duplicate previous adjudicative efforts.”7

    Where does the truth lie – in the press releases and announcements of USCIS, or in the real world Service Center and AAO denial decisions which adversely impact talented entrepreneurs, their companies, employees, and customers?

    The irony is that many of these entrepreneurs came to America in search of predictability, rule of law, and stability, attributes often absent in the business landscapes of their own countries. Yet after investing hundreds of thousands of dollars, hiring American workers, providing needed services and innovation, and toiling to grow their businesses, they encounter the whims and uncertainty of an immigration bureaucracy hellbent on interpreting a single statute and identical regulations in different ways. The image of Lucy pulling the football from a foolhardy Charlie Brown trying to kick it comes to mind, with USCIS encouraging businessmen to invest and luring them with the prospect of a green card, only to snatch it away from them at the last minute. When will USCIS action match its words? When will it cease the intellectual dishonesty underpinning the adverse decisions in EB-1-3 petitions?

    [1] This article is the first in a two-part series on how immigration agencies play a game of bait-and-switch with potential immigrants. Tomorrow we will publish an article entitled “Bait-and-Switch, Department of State-Style”

    [2] August 15, 2012 Decision of AAO, p. 6 - http://www.uscis.gov/err/B4%20-%20Mu...12_02B4203.pdf

    [3] “Because USCIS spends less time reviewing I-129 nonimmigrant petitions than I-140 immigrant petitions, some nonimmigrant L-1A petitions are simply approved in error.” Id. at p.7.

    [4] E.g., “Examining the consequences of an approved petition, there is a significant difference between a nonimmigrant L-1A visa classification, which allows an alien to enter the United States temporarily, and an immigrant E-13 visa petition, which permits an alien to apply for permanent residence in the United States and, if granted, ultimately apply for naturalization as a United States citizen.” Id.

    [5] February 9, 2012 Decision of AAO, p. 5 - http://www.uscis.gov/err/B4%20-%20Mu...12_03B4203.pdf

    [6] Id. pp. 5-6

    [7] May 30, 2013 Memorandum on EB-5 Adjudications Policy, p. 23

    About The Author

    Kenneth White is a member of the District of Columbia and Pennsylvania bars and was a long-time resident of Moscow, Russia, where he had his own immigration law practice. He is the co-author of the books "U.S. Nonimmigrant Visas," "U.S. Immigration and Citizenship," and "Handbook for Immigrants to Canada." Mr. White's law firm specializes in consular matters, EB-5 representation, and U.S. immigration issues.

    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
    Comments 1 Comment
    1. Vall's Avatar
      Vall -
      Mr. White,

      Do you think the following means there's light in the horizon?
      AAO Issues Strongest Rebuke to CSC on "New Office" L-1A Extensions

      I'm a foreign entrepreneur planning to open a branch of my company in the US under the L-1A visa, but I'm hesitant to do so as it seems there's a high probability of my being sent back home after the initial 1 year visa expires, or being denied LPR further on; it simply isn't sane to bet at least a year of effort and a lot of money on something that depends on the whims of a mostly-unaccountable technocracy as the USCIS seems to be. On the other hand, if the above-linked decision creates a precedent, it could mean things got much more reliable...

      Looking forward to your response,
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