Importance of Maintaining Status after September 11 (Part I)
This practice advisory was adapted from my discussion on visa maintenance issues during the November 2, 2001 ILW.COM teleconference on "The Immigration Implications of the September 11th Tragedy." After September 11, it is more important than ever for nonimmigrant workers to maintain lawful status in the United States. Nonimmigrants are being detained and/or placed in removal proceedings for minor, technical violations of immigration laws.
Q: What can practitioners do to ensure that clients maintain lawful nonimmigrant status?
There are a number of things that immigration lawyers can do. We can maintain and constantly update our internal calendaring systems to track the expiration dates of our clients' nonimmigrant status. Lawyers can use web-based access as case management tools (ILW.COM provides web-based service for immigration attorneys) to maintain client relations and keep clients aware of expiration dates and compliance issues. We can also encourage our corporate clients to develop and maintain their own tickler systems that keep track of their employees' nonimmigrant status and expiration dates.
We can send letters to our individual and corporate clients to remind them about upcoming expiration of nonimmigrant status and warn them about the consequences of unlawful presence and the failure to maintain status. We can instruct our clients to carry documents of identity and proof of their right to be present in United States (passport, I-94 and I-797s) at all times. We can inform clients that they may not be re-admitted to the United States if they do not have proper documentation with them when they return from travel abroad. Michael A. Pearson, Memorandum to Regional Directors, et al. (HQ INS 10/10.10), Deferred Inspection, Parole and Waivers of Documentary Requirements, November 28, 2001.
We can also remind our nonimmigrant clients (other than those in A or G status) of the obligation under § 265(a) of the Immigration and Nationality Act to report any change of address on Form AR-11 to the INS within 10 days of the move. Lastly, we can help them to be aware of the conditions for continued maintenance of status applicable to the individual's particular nonimmigrant visa category, such as the obligation on an F-1 student to maintain a full course of study and refrain from engaging in prohibited forms of employment.
Finally, we can ensure that in a true emergency our clients can reach us (or a designated on-call colleague) twenty-four hours a day, seven days a week.
Q: Has INS adjudication of nonimmigrant visa petitions changed since September 11?
Expect more stringent nonimmigrant visa eligibility standards from INS. When filing for extension of status, do not depend on the initial grant of status as an indication of the approval of an extension. INS will not accord a presumption of correctness in its prior decision. The next officer who gets the case can disagree completely with the previous officer and offer no explanation for the incongruity.
INS's treatment of L-1A and L-1B categories exemplify the tightening of eligibility requirements for nonimmigrant visas. These nonimmigrant classifications allow multinational executives, managers and employees with specialized knowledge to transfer and work for a company in the United States when they have already worked for a foreign employer affiliated with the U.S. company. In the past, neither L-1A nor L-1B were known to be particularly problematic categories, especially for large well-established companies.
For L-1A (Multinational Executives and Managers), IMMACT 90 made it very clear that INS may not discriminate between functional managers and managers who oversee personnel. IMMACT 90 also made it clear that first-line supervisors who manage professional personnel can function as a manager. Since September 11, however, INS has perceived the L-1A category as a category that has been resorted to in lieu of H-1B, which is more heavily regulated. INS has also begun to combine requirements. For example, "functional" managers, under current INS regulation, are not required to manage people, yet practitioners report that recent INS denials or Requests for Evidence assert that a functional manager must also manage personnel.
INS has also restricted its stance on the L-1B (Specialized Knowledge) category. In 1994, INS issued the Puleo memorandum, which relaxed the formerly stringent criteria defining specialized knowledge. James A. Puleo, Memorandum to District Directors, et al (CO 214L-P), Interpretation of Special Knowledge, March 9, 1994. Now the INS is retreating to the pre-IMMACT90, pre-Puleo memorandum, restrictive requirements in an effort to distort the required proof. For example, IMMACT90 eliminated the requirement to show that a U.S. worker is not available or that it is not feasible to train a U.S. worker to fill the specialized knowledge position. However, there is now an effort to require proof of economic disruption to the U.S. petitioner if the company must train a U.S. worker as opposed to transferring a foreign worker who already possess the specialized knowledge.
While decisions of this sort may be aberrations, practitioners should be aware that many newer adjudicators hired by the INS in recent years may not be aware of the long and tortuous statutory and regulatory history of the L-1 category preceding and following passage of IMMACT 90. See, e.g., Matter of Sandoz Crop Protection Corp., 19 I& N Dec. 66 (Comm'r May 20, 1988); Richard Norton, Memorandum (CO 214.2L-P), Interpretation of Specialized Knowledge Under the L Classification, October 27, 1988, reproduced in 65 Interpreter Releases 1170, 1194 (November 7, 1988); Preamble to Proposed Regulations Implementing IMMACT 90, 56 Fed. Reg. 31, 554 (July 11, 1991); James A. Puleo, Memorandum to District Directors, et al (CO 214L-P), Interpretation of Special Knowledge, March 9, 1994.
Editor's Note: Part II of this article will appear in the January 14, 2002, issue of Immigration Daily.
About The Author
Angelo A. Paparelli (firstname.lastname@example.org), Certified as a Specialist in Immigration and Nationality Law by the State Bar of California, Board of Legal Specialization, has been practicing business-sponsored immigration law for over 20 years. He is the managing partner of Paparelli & Partners LLP ( www.entertheusa.com), a firm in Irvine, California that practices exclusively immigration and nationality law. Mr. Paparelli is a nationally recognized speaker, published author and leading expert on cutting-edge business-related immigration issues, including the immigration consequences of mergers, acquisitions, reorganizations and other business changes, consular visa practice, audits of employers' compliance with immigration and labor regulations, and employment-based work visas. His experience also includes the U.S. immigration aspects of international tax and estate planning. From 1991 to 1996, Mr. Paparelli served as co-Chairman of the Immigration and Nationality Law Committee of the American Bar Association's Section on International Law and Practice. He also served from 1988 to 1994 as an elected governor on the Board of Directors of the American Immigration Lawyers Association. He is named in the 1990-2002 editions of Best Lawyers in America under Immigration Law.