Several HLG attorneys attended the DHS Ombudsman open forum on L-1b petitions. At some point in the future, an official summary will be posted on the Ombudsman web-site. Until then, below are some items of interest. The DHS acknowledged that there has been a tremendous narrowing of the interpretation of the definition of "specialized knowledge" without any statutory or regulatory changes. The denial rates for L-1b petitions have now risen to 27% whereas, it had never exceeded 7% prior to 2008. The rate of denials is much higher for IT petitions. The RFE rate has now reached over 66%. The DHS also acknowledged inconsistent treatment of petitions between the 2 service centers with the California Service Center having higher denial rates. It was speculated that the standard being used by the service centers stems from a 2008 AAO case, GST which many scholarly experts have posited is possibly the most legally defective decision to ever be issued by an administrative law judge. The essential point of the GST opinion was that "if everyone is specialized, no one is specialized" Although, the merits of this policy remain without legal support, the reality is that this is the current policy being applied by the USCIS. The Ombudsman office acknowledged that new training materials were provided to the USCIS in Oct of 2011 however, to date, the USCIS has refused to release those materials. The Ombudsman office re-affirmed that new L-1b guidance was being developed by USCIS headquarters however, no timetable was provided for the release of such guidance. Overall, it was an excellent session and it was heartening to have a DHS official listen and accept input from stakeholders. We applaud the efforts of the Ombudsman's office and look forward to closer scrutiny of the USCIS service centers treatment of L-1b petitions.
You have the perfect L-1b case. Your employee has worked for your Indian office for over 100 years; he invented the proprietary tool that your company now uses all over the world; he is coming into the US to your wholly owned subsidiary to train US workers on how to use this proprietary tool so they can add US jobs in a blue state; and, he will not even look in the direction of any 3rd party worksite. Your company just got the USCIS to approve a blanket L petition for you. He is well prepped for the visa interview. You are so confident, you have even started to fix some namkeen snacks for his arrival ! DENIED ! DENIED ! DENIED ! This unfortunately, is standard operating procedure for the US Consulates in India considering L-1b blanket visa petitions and the USCIS adjudicators reviewing L-1b individual petitions. In spite of public statements from USCIS Director Mayorkas and claims by President Obama about welcoming arms for immigrant innovators and entrepreneurs, the ugly truth is that Indian innovators and entrepreneurs are about as welcome in the US right now as Al Gore would be at a Coal Mining convention. It is time for the speeches to end. Indian innovators and entrepreneurs deserve better. At some point along the spectrum of adjudicators and bureaucrats, someone needs to stand up and say, "hey guys, just for today, let's do something crazy and unusual and follow the law !" For more on this subject, check out this great post by renowned immigration attorney Angelo Paparelli.
On Nov. 7th, Hammond Law Group will host an immigration seminar specifically designed for IT companies. The seminar will be held in NYC at the Helmsley Hotel. For more info visit the HLG web-site.