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.
Roger Algase is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years.