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Sisyphean or Herculean?: Responding to RFEs of Nonimmigrant Petitions Immigration & Nationality Law Handbook, 2004-2005 Edition, Volume 2, pp 221-328. June 2004 This article deals with what is becoming a recurring situation calling for Requests for Evidence (RFE) following the submission of certain commonly filed employment-based nonimmigrant visa petitions—specifically, H-1B Temporary Worker Petitions, L-1 Intracompany Transferee Petitions, and O-1 Petitions for Aliens of Extraordinary Abilities. Particularly during the period of the Service’s “Zero Tolerance” policy 1 but also as a function of its legacy,2 there is reason to expect that even the most apparently straightforward, well documented, and highly meritorious filing which on previous occasions has been approved will result, under the current environment, in the issuance of an RFE. This article will provide insights and thoughts on how to handle RFEs on a substantive level as well as tactical and intra-client levels. To some extent, the recently announced authority granted to Service adjudicators to issue denial orders rather than RFEs 3 may presage a decrease in the volume of RFEs issued in the future. We would surmise, though, that most business-related nonimmigrant cases will continue to present issues of law and fact which need to be resolved through the kind of dialogue between the CIS and the practitioner as provided through the vehicle of the RFE. As such, we think that this article remains highly relevant to the practitioner during this period of considerable resistance to the issuance of prompt and favorable approvals of cases. Lawyer-Client Communications Step I: Planting The Seeds We assume that clients expect from their legal providers a range of services, including a strong substantive work product, an insight into the realities of the process, open and accessible communication, and full divulgence of the factors pertaining to the immigration case. For many reasons during the development of a case, practitioners want to present a demeanor of resolute self-confidence, oftentimes minimizing the possibility that any element of the case could get questioned, unduly delayed, or even denied. After all, what client would chose an attorney who forthrightly raises the possibility fo a kick-back or a denial, particularly when their (best) friends and colleagues have sailed through the system without incident and in a time-efficient manner. Even more frustrating, such favorable and painless approvals often were granted to individuals possessing less impressive credentials and claims than the client in the instant case. But, to cite an eerily prescient statement made by one of greater stature than the authors, “the dogmas of the quiet past are inadequate to the stormy present. As we must think anew, so we must act anew.” 4 Simply put, no case is immune from the issuance of an RFE. We believe this possibility needs to be forthrightly stated to the client, as well as factored into the tactics of a case’s presentation. The practitioner should certainly assess a case in terms of his/her own experience, which should serve as a predictive marker on the outcome of future filings of a similar nature. But adjudications are no longer linear and readily predictable, and this reality needs to be shared with the client early on, particularly when a client’s (often unrealistic-at-the-outset) expectations and sense of satisfaction with the attorney’s handling of the legal process need to be accomplished in a usually tight (and, again, often unrealistic) timeframe. Furthermore, the possibility of receiving an RFE should put emphasis on a tactical approach to the initial filing. We do not have a unitary approach as to whether it is preferable to fully present the case upon initial filing or to withhold or manage information in anticipation of a possible RFE.5 Different fact patterns suggest different tactics. But what we do strongly believe is that the practitioner needs to consider and then discuss with the client whether the case will be better served by structuring the submission from the outset in anticipation of receiving an RFE, and if so, whether the chances of approval following issuance of an RFE will be enhanced by reserving certain information or documentation for initial presentation upon rebuttal. Step II: Initial Post-RFE Actions The filing has been made; the RFE has been received. The question then arises about how the practitioner should handle the situation. We would submit that there is one inviolable rule: the practitioner, personally and promptly, needs to pick up the telephone and communicate directly to the client the issuance of an RFE. This is not a time for sending an e-mail or for delegating this communication to a member of the staff, or even leaving news of this development with an intermediary. The attorney has the ultimate responsibility for developing the case and for managing the client’s expectations. There is no greater better time for the practitioner to communicate his/her personal involvement and concern than immediately upon notice of an unfavorable turn of events such as an RFE, which should be regarded as a development of shared concern rather than a matter to be borne solely by the client. The initial communication needs to set a tone for mutually dealing with the RFE. Generally, it is preferable simply to provide the information of this negative development, a tentative assessment of its validity, and a brief summation of future steps. And then the practitioner should simply listen carefully to the client’s reactions which might run anywhere from resignation to a probably insurmountable challenge, stoic acceptance of an outcome-uncertain rebuttal, enthusiasm about an easily rebutted challenge, or even outright accusation questioning the lawyer’s judgment and/or competence. But it is an important step to solidify the professional alliance with the client early on, as the RFE by its nature, requires the client, employer, and practitioner jointly to struggle through an additional level of uncertainty and disruption. After alerting the client via this initial informational conversation, the practitioner should follow up and send out the full text of the RFE. This is, after all, the detailed basis for the current problem and it is important—as well as professionally appropriate—for the client to have the full text, however embarrassing the RFE may be to the CIS as the adjudicating body, to the question of the practitioner’s work product, or to the merits (i.e., strength or lack thereof) of the case. Finally, once the initial communications have been made and the parties provided with the full text of the Request, it is “back to the drawing board”—i.e., the time for the practitioner in full consultation with the client to consider the strategic and tactical approaches to the RFE, which, in a sense, serves as the instructive guidelines on what the Service requires to approve the case. The balance of this article addresses precisely how one might apply the above-described approaches in the preparation of rebuttals to RFE’s issued following the filing of H-1B, L-1, and O-1 petitions. H-1B RFES Overview The most common concern in an H-1B RFE involves challenge to the petitioner’s assertion that the job is a “specialty occupation.” Along with this concern, the RFE tends to ask several subsidiary questions to the main issue, such as the number of employees in similar positions, and a detailed description of the job duties. “Specialty occupation” is defined under INA §214(i)(1), as requiring:
The RFE generally provides the employer an opportunity to satisfy one of the following regulatory criteria 6 to determine whether the position qualifies as a “specialty occupation”:
The term “specialty occupation” was introduced in the Immigration Act of 1990 (IMMACT 90)7. Prior to IMMACT90, the “professional” standard involving occupations for immigrant preference and H-1 visas had a nearly identical degree requirement. Thus, decisions prior to IMMACT90 interpreting the “professional” standard are also useful and should be taken into consideration in responding to an RFE. Obvious Specialty Occupations There are times when the position is obviously a “specialty occupation,” and yet the attorney has received an RFE on behalf of the client. Note that any occupation listed under the definition of “profession” within the Immigration & Nationality Act (INA)8 would clearly qualify for an H-1B visa.9 Other occupations not listed in the definition of “profession” have also been established as “specialty occupations” or “professions” through administrative decisions. For example, an accountant 10 or journalist 11 or a computer programmer 12 would qualify as “specialty occupations.” Perhaps, then, the reason for the RFE was because the Service adjudicator did not believe that the prospective H-1B employee truly would be performing the duties of the “specialty occupation.” The adjudicator suspects that the accountant will probably work more as a bookkeeper or that the computer programmer probably will not be performing at a specialized level within the organization. One also sees such RFEs issued in cases, notwithstanding that the position is clearly a “specialty occupation” when the petitioner is a small or start-up business. If such is the case, the client must further discuss the duties in great detail, as well as assign the number of hours or the percentage of time each duty will be performed in the week. If the preponderance of the duties, after detailing them, rise to those typically performed by the accountant rather than the bookkeeper, it provides the Service adjudicator an opportunity to approve the petition (that is, a credible justification to reverse his/her earlier doubts). Even if the petitioning entity is small with respect to occupations such as law or architecture, one can argue that size is irrelevant. An associate working for a sole practitioner would be required to work with the same level of skill as an associate in an international law firm. 13 In the computer field too, since Matter of Precision Programming,14 the Service has taken a flexible view toward computer programmers of business applications. The petitioner described the job duties as requiring the worker to “use C language on our UNIX systems to design and develop customized programs for systems used in a variety of industries including order entry, inventory control, accounting, reporting, analyses, etc.” In other cases, a programmer/analyst who was required to “convert data from product specifications and statements of problems and procedures to create or modify computer programs” was not considered a specialty occupation.15 According to an instructive memo from the Nebraska Service Center, a computer programmer must be involved in providing clients, through a consulting firm, with “programming analysis, custom designs, modifications, and /or problem solving of software.”16 But positions strictly involving the entry or review of code for an employer whose business is not computer-related will require more careful scrutiny. 17 At times, the adjudicator may doubt that the alien will be performing his or her duties in a “specialty occupation” if the alien’s education does not match up with the job. The Nebraska Service Center denied the H-1B petition of a Software Design Engineer because he had a degree in Electrical and Electronic Engineering, but this decision was reversed at the Administrative Appeals Office (AAO) in Matter of Shanmukan.18 Electronic or Electrical Engineering degrees clearly tie into Software Engineering, but the practitioner must take greater pains to qualify (that is, to link the duties of) a Software Engineer with a program of coursework leading to a degree in Civil Engineering or Physics. Finally, RFEs often cite Defensor v. Meissner 19 to challenge the employer’s assertion that the position is a “specialty occupation.” The employer, in that case, Vintage Health Resources, sought to have seven nurses classified as H-1B nonimmigrants. Vintage, in turn, contracted these nurses to medical facilities. While nursing per se is not considered to be a “specialty occupation,” certain advanced practice nurses clearly qualify for H-1B classification such as Clinical Nurse Specialists, Nurse Practitioners, Certified Registered Nurse Anesthetist and Certified Nurse-Midwife.20 Although Vintage argued that it (Vintage) required all of its nurse-employees to have nursing degrees, it was unable to establish that the contracting facilities where it placed its nurse-employees also “required” such degrees (notwithstanding that a number—but not all—of its nursing staff coincidentally actually held such degrees). Thus, the Court in affirming the denial of the H-1B petitions held that if “only Vintage’s requirements could be considered, then any alien with a bachelor’s degree could be brought into the United States to perform a non-specialty occupation, so long as that person’s employment was arranged through an employment agency which required all clients to have bachelor’s degrees.” Although the facts in Defensor v. Meissner pertain to an employer contractor, RFEs inappropriately cite the case in situations where the petitioning employer will hire the alien (not necessarily as a nurse), rather than subcontract him or her out to another firm, and allege that the employer’s subjective viewpoint that the job requires a bachelor’s degree is not sufficient. Thus, the practitioner must distinguish Defensor v. Meissner by establishing that the alien will work for the employer, which has established its own prior practice in hiring people with similar degree requirements, rather than be contracted out to another employer, whose degree requirements for the position are unknown. Less Obvious Specialty Occupations Prime examples of not so obvious “specialty occupations” exist in the restaurant and hotel industry. Although hotel management has qualified as a professional position,21 a federal district court in Shanti v. Reno 22 affirmed the AAO in denying an H-1B petition to a restaurant manager who possessed the equivalent of a general degree in business administration and not a degree in a specialized field. The Service generally relies on the description of the occupation in the Department of Labor’s Occupational Outlook Handbook (OOH), which may indicate that a certain occupation generally require either two years or four years of education, or that employers hire people with generalized bachelor’s degrees. Thus, taking the example of Food Service Manager, the OOH makes reference to the fact that the two-year degree in addition to on-the-job experience is sufficient to perform the duties of the position, thereby suggesting that it is not a specialty occupation. The AAO recently reversed the California Service Center’s determination that a Pastry Chef did not qualify as a “specialty occupation.”23 The Service Center relied on the job duties of Food Service Manager in the OOH in determining that the occupation did not always require a bachelor’s degree. Interestingly, the AAO noted that the job description in the H-1B petition for pastry chefs was more complex. For instance, the pastry chef was expected to supervise the restaurant’s pastry department, which would make unique pastry creation and oversee the activities of three chefs. The pastry chef would also plan menus, develop recipes, estimate food consumption, and direct methods of pastry preparation and baking techniques to conform to French standards, among other managerial duties. According to the AAO, whether or not the OOH states that a particular occupation normally requires a bachelor’s degree in a specific specialty or entry into the position, it is also necessary to consider the nature of the petitioner’s operations and the job duties of the proffered position when determining whether a job is a “specialty occupation.” One cannot emphasize enough to the practitioner that a detailed description of the duties is essential to winning the case. It is also important to show how each duty directly relates to the beneficiary’s education in a particular concentration. Once the job description has been adequately developed, in appropriate cases it is useful for the practitioner to arrange for the assistance of an expert who could provide an evaluation of whether or not the position requires a bachelor’s degree in the enumerated. Thus, in the case of an H-1B petition filed for a beneficiary in the restaurant and hotel industry, a professor of business management, hotel/restaurant management, or culinary art would be able to provide a detailed expert opinion.24 In the case of entry-level position, it may also be useful to have the college’s career guidance counselor attest to the fact that employers in the particular industry always require students to possess a bachelor’s degree in the specified field during campus recruitment. The employer should submit proof that it has hired other employees with similar credentials in the past. It is also useful to submit evidence that the H-1B beneficiary will be (if not supervising, at least) working with others with bachelor’s degrees in specialized fields. Yet, credible testimony from orchestra directors was unsuccessful in Louisiana Philharmonic Orchestra v. INS 25 who stated that 90 to 95 percent of orchestra members possessed degrees although in some instances a degree was not a prerequisite for the position. In that case, the AAO denied an H-1B petition to a violinist of the Louisiana Philharmonic Orchestra claiming the orchestra failed to prove the industry standard is to employ degreed violinists. The court first found the AAO’s decision to be arbitrary and capricious because the INS failed to explain why it did not follow its findings in approving three other H-1B petitions for the orchestra. After the remand, the court in a subsequent Louisiana Philharmonic Orchestra 26 decision upheld the denial accepting the INS’s explanation that violinists are hired based on blind auditions, not degrees, and that the three prior H-1B approvals for the orchestra were erroneous. Commentators have been extremely critical of this decision as the USCIS insisted on a degree requirement being an absolute “industry standard” rather than a “common to the industry” standard. 27 In responding to RFEs where the Service alleges, as in Louisiana Philharmonic Orchestra v. INS, that a bachelor’s degree is not an industry standard, practitioners should refer to the four-pronged criteria in 8 CFR 214.2(h)(4)(iii)(A), supra, which clearly indicate that the employer must demonstrate that a baccalaureate degree is “normally” the minimum requirement (prong 1) or where the complex duties are “usually” associated with the attainment of a bachelor’s degree (prong 4). One could argue that the regulations do not say “always” associated with the attainment of a degree. Finally, the position must require and be able to justify a specialized degree rather than a general degree. Compare Tapis International v. INS 28 to All Abroad Worldwide Couriers Inc. v. Attorney General.29 In Tapis International, the Court found that the employer, Tapis International, an interior design firm, had submitted undisputed evidence that it requires a bachelor’s degree from a limited number of academic fields (marketing or business) in addition to specialized design experience for the position of showroom manager. The Court admonished the Service, pointing out that the statute and regulations allow for a “bachelor’s degree or equivalent.” The INS’s interpretation, according to the Court, “precludes any position from satisfying the ‘specialty occupation’ requirements where a specific degree is not available in that field.” In the instant case, the employee’s position could not qualify for H-1B classification unless he obtained a degree in interior design showroom management. On the other hand, in All Abroad Worldwide Couriers, the minimum requirement for a public relations consultant in a courier business was some type of bachelor’s degree, in addition to experience in the field. Tapis thus teaches us that the position should require a degree in specialized fields, along, if possible, with specialized experience, in cases where the Service might not view the degree requirement as specialized enough. This is particularly true in jobs requiring a generalized business or other degree, which the Service often finds too general to support a specialty occupation. Credential Evaluation While it is advisable to seek a credential evaluation to establish an H-1B alien’s foreign degree equivalency even if the foreign university is well known, a credential evaluation to establish the H-1B beneficiary’s equivalency might still be challenged. This would happen when the alien establishes that his or her education and work experience in combination is equivalent to a degree. The practitioner, thus, clearly must follow the criteria established under 8 CFR §214.2(h)(4)(iii)(D) to establish equivalency. None of the criteria in the regulations authorize a credential evaluation for work experience. The Service will only accept an evaluation of education by a credential evaluation service, which specializes in evaluating foreign educational credentials.30 However, the Service has been quite flexible in accepting evaluations from such agencies that combine education with work experience. If such a credential evaluation service is being sought to issue an opinion based on work experience, it is preferable to insist that such an opinion came from an official who has authority to grant college-level credit for training or experience in the specialty at an accredited college or university, which has a program for granting such credit.31 Such an opinion must include a statement that he or she has authority to grant college-level credit in work experience. In recent times, RFEs have begun to question the validity of a credential evaluation from a private agency that combines education with work experience. If an opinion from an official at a university is not forthcoming, the practitioner must rely on the 5th prong of the regulation,32 which sets forth the rule that three years of experience is equal to one year of college. This must be backed by at least one type of documentation such as:
When an H-1B beneficiary presents a degree, although not a facially job-relevant degree, it may still be possible to combine work experience with the unrelated degree to establish that the beneficiary has the “equivalent” to a relevant degree in the “specialty occupation.” Thus, a person with a bachelor’s degree in anthropology, who has been sponsored as a financial analyst, would have to demonstrate three years of experience in finance to obtain an equivalency of a bachelor’s degree in anthropology as well as finance.34 Three years of work experience after a four year degree would generally equate to one year of college (or 32 credits) in the new "major."35 Speculative Employment An RFE may also allege that employment is “speculative,” especially in the computer industry. Such an allegation may be rebutted when the employer has contracts with client companies. But, it is not essential that the employer provide contracts, specifically for the H-1B job.36 According to an INS memo, “The submission of such contracts should not be a normal requirement for the approval of an H-1B petition filed by an employment contractor. Requests for contracts should only be made in those cases where the officer can articulate a specific need for such documentation.” In the case of smaller companies, the RFE requests documentation such as tax returns, commercial lease and W-2s of other employees. While such documentation can be requested by the Service to establish that the job is indeed going to be performed at a specialized level the same INS memo indicated: “(T)he I-129 for the H-1B does not require evidence of the ability to pay the stated wage. Wage determinations and enforcement of their payment with respect to the H-1B classification are the sole responsibility of the Department of Labor (DOL).” 37 Requests for Job Posting If an RFE requests a job posting, the practitioner should not automatically assume that it is not germane to H-1B eligibility. Although the Service cannot inquire about the employer’s recruitment efforts, as in a labor certification application, the Service may still be interested in seeing the “real world” minimum requirements for the position. If the employer does not have a job posting for the position, the practitioner need not panic. It is still possible to respond that an employer is not required to submit a job posting with the H-1B petition, and in any event, the employer should further emphasize that its internal minimum requirement for the position is a bachelor’s degree or equivalent. In Maria Clara Garcia v. James W. Ziglar,38 an unreported decision involving an H-1B petition for a fashion designer, the Court cites the employer’s explanation for not listing educational requirements in its fashion design announcement “because we do not want to preclude individuals with relevant experience, but no degree.” The court affirmed the Service’s denial of the H-1B petition on the grounds that the term “relevant experience” had not been sufficiently defined by the plaintiff, Garcia. In justifying either the lack of a degree requirement in an employer’s position announcement, or the lack of a position announcement, the employer must still carefully describe that its job duty requirements as well as the work experience meet the standards of a “specialty occupation.” Licensure If the performance of the duties of an occupation require a license, the regulations require the H-1B beneficiary to possess the license before the petition will be approved.39 If a temporary license is issued, the regulations allow the H-1B professional to work for up to one-year during the probationary period or until all courses are completed. 40 In some occupations, the H-1B beneficiary could perform at a specialized level under the supervision of another licensed professional. Thus, unlicensed architects can work under the supervision of a licensed architect, and so can an unlicensed law graduate under the supervision of a licensed attorney. The regulations clearly allow an individual to be granted an H-1B visa who can fully practice the occupation under the supervision of a licensed or supervisory person in that occupation.41 In such situations, the practitioner may want to cite the state law or regulation that permits the person to fully perform the duties of the occupation under such supervision. L-1A RFES Overview As a background, the L-1 visa facilitates the transfer of key employees from a foreign corporation to a U.S. branch, parent/subsidiary or affiliated entity.42 To establish the parent/subsidiary relationship, one entity must own, directly or indirectly, more than half of the other, and must also be able to control it; or owns, directly or indirectly, a 50-50 joint venture and has equal control and veto power.43 If one entity owns less than 50% of the other entity, the qualifying relationship may still be established if it in fact it controls the entity. 44 Alternatively, the U.S. and foreign entity can also be affiliates or siblings, i.e., they are owned by the same owner or same group of owners in similar proportions. 45 The employee must have also worked in an executive, managerial or specialized knowledge capacity for the foreign entity, while physically abroad, for at least an aggregate of one year in the past three years and is being sponsored to work in the same capacity for the U.S. entity. 46 Most of the issues that we see in RFEs challenge whether the L-1 employee will be working in a managerial, executive or specialized knowledge capacity. Correspondingly, the prior experience in the foreign entity is also challenged. Also, care should be taken to explain the qualifying relationship between the foreign and the US entitles, especially when there is indirect control. With respect to large public companies, the qualifying relationship can be documented by referring to the annual report. Regarding smaller companies, more documentation must be submitted such as stock certificates and stock transfer ledgers, along with Board meeting resolutions and contracts (if applicable) reflecting the purchase of stock. Executive or Managerial Capacity The L-1 RFEs almost always require the petitioner to reestablish that the beneficiary will be working in either an executive or managerial capacity. Many tend to blur the distinction between executive or managerial capacity, as the duties often overlap, but there exist two separate definitions, one for executive 47 and another for managerial 48 capacity. Review the definitions and point out to the examiner that the L-1 employee’s duties falls under the relevant prong or prongs of either the executive or managerial capacity definitions. An INS Memo has also been issued to remind adjudicators to refer to all elements outlined in the definition of manager in making a determination. 49 The definition for executive capacity does not make any reference to the supervision of other employees, especially subordinate managers. Thus, if the organization is not staffed with too many managers, and the L beneficiary is involved more in directing the organization, one could clarify in the RFE that the L-1 employee is employed in an executive rather than a managerial capacity. In any event, it is extremely important to detail all the positions in the company and to highlight the L beneficiary’s interaction with personnel. If the petitioning company deals with independent contractors, the L beneficiary’s interaction with these contractors should be highlighted. It is important to submit detailed organization charts of the L employee’s position in the organization’s hierarchy. If this person deals with independent contractors, the organizational chart may include his or her interactions with outside personnel such as accountants, distributors, suppliers or marketing/ management consultants. It is also possible to obtain a position evaluation from an expert who can confirm that the L employee will indeed be working in a managerial or executive capacity. The duties have to be “primarily” executive or managerial, and thus the L-1 employee can engage in duties that are not strictly managerial but are common to this position such as customer relations, public relations, lobbying and contracting. If, however, the very business of the organization focuses on lobbying, cultural exchange or public relations, the Service may deny the petition on the ground that the beneficiary is involved with these duties rather than managing them. Thus, in Republic of Transkei v. INS,50 the D.C. Circuit Court of Appeals sustained the denial of an L-1 petition on behalf of an employee who was working for the US office of the South African Republic of Transkei. The Court reasoned that the office set up in the US on behalf of the Republic of Transkei functioned more as an embassy rather than a business, and thus the employee’s involvement in the duties normally associated with a diplomatic mission, such as public relations and cultural exchange, were not managerial. The “managerial capacity” definition excludes a “first-line supervisor” unless the employees supervised are (most commonly “degreed”) professionals.51 Such first level managers are common in the information technology industry where a senior programmer, as project leader, could be supervising professional computer programmers who are actually designing and developing programs and systems. In such instances, the baccalaureate-level credentials of the professional employees should be provided to convince the adjudicator that the first line supervisor qualifies as an L-1 manager. “New Office” Petitions The rigid definitions of manager and executive are somewhat relaxed in the case of a “new office,” which is an entity that is doing business in the United States for less than one year.52 An L-1 petition for an executive manager, or for that matter, even a specialized knowledge employee, will be approved for a period of one year if the petitioning entity can establish that physical premises have been secured and that the operations will support, in one year, a managerial or executive position.53 The practitioner should rebut any challenges to a “new office” L-1A petition by detailing the prospective duties of the manager or executive as well as a proposed staffing plan detailing the duties of other prospective employees under the L beneficiary’s supervision. For instance, the AAO reversed a denial of a new office petition for the president of an investment and import/export company finding that the job description, evidence of the beneficiary’s managerial status abroad, and the company’s plan to hire additional employees sufficient evidence that the beneficiary would be primarily employed in a managerial or executive capacity. In addition, the AAO also found that evidence of periodic transfers of funds from abroad, necessitated by South Africa’s monetary control system and by the petitioner’s desire to obtain approval before transferring further funds, was sufficient to demonstrate the foreign entity’s investment in the US and its ability to remunerate the beneficiary and commence doing business in the US. 54 A petitioner who successfully obtains L-1 approval as a “new office” must not rest on its laurels. Within one year, this entity has to file another extension of the L-1. Practitioners have been experiencing problematic RFEs if the business still remains in a “start-up” phase at the time of the extension. Thus, it is incumbent upon the practitioner to warn the client about the need to beef up operations well before the next L-1 extension is due. By the time the petitioner is required to file the extension, it must have tax returns reflecting salaries paid to officers and employees and other tax reporting documentation indicating that the entity has hired additional employees. Functional Manager In 1990 Congress expanded the L-1A visa category with the inclusion of “functional” managers in the definition of executive and managerial capacity, placing more emphasis on management of essential function rather than size of the company.55 Yet, RFEs commonly demand proof that the function over which the beneficiary exercises authority is also at a senior level and that there are other personnel who will actually execute the duties of the function. There is abundant support in the case law for the proposition that it is unnecessary for “functional” managers to be employees of large organizations. In 1996 the AAO approved a scrap metal company’s L 1A petition filed for its sole employee and president.56 At a salary of $40,000 per year, his primary function was to procure scrap metal for export and develop real estate through independent contractors. In a similar case, a sound equipment sales and rental company sought to transfer its general manager to an office in the United States.57 The beneficiary who was to oversee a small, nonprofessional staff, as well as hire and train new employees, negotiate contracts, manage inventory and purchasing, and direct expansion. The AAO held that a small staff does not justify a denial where the beneficiary holds wide decision-making discretion. Similarly, the AAO found the president of company engaged in the acquisition and sale of aircraft equipment to qualify for an L-1A visa.58 Although managing the only other employee, the AAO cited the beneficiary’s wide latitude in discretionary decision making, including the hiring and firing of employees and the formation of the petitioner’s policies and goals. Finally, the AAO has affirmed that the human resources manager of one manufacturing plant belonging to a large multinational corporation was performing an essential function even though this person did not supervise others. 59 However, the INS successfully rejected the L1-A visa petition filed by major furniture-store chain IKEA.60 On appeal, the District Court for the D.C. Circuit held that a the restaurant manager of one of its stores, although serving a function essential to one particular store, was not serving an “essential function within the organization, or a department or subdivision of the organization,” under the statutory definition of “managerial capacity.” The Service has also failed to recognize that a deputy manager of a company engaged in the import/export of arts and crafts materials is a functional manager. Although the manager hired six employees, conducted trade negotiations, was in charge of all shipping, and Customs duties and financing, the Service was not persuaded that the beneficiary would be performing managerial duties. 61 When responding to an RFE challenging the beneficiary’s status as a functional manager, it is important for smaller companies to rebut with evidence detailing that the beneficiary directs an essential function at a senior level, and that there are subordinate or personnel (or independent contractors) who will actually execute the duties. Smaller companies should emphasize that their functional manager will be entrusted with substantial de facto decision making authority over an essential function, preferably one involving large sums of money (e.g., buying and selling aircraft materials rather than arts and crafts materials). Specialized Knowledge Petitioners requesting L-1B classification for an employee are usually faced with having to reestablish that the beneficiary possesses “specialized knowledge” and is coming to the United States to continue to render services requiring that specialized knowledge.62 According to INA §214(2)(B), a beneficiary is considered to be serving in a capacity involving specialized knowledge if the he or she has “a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company.” The regulations elaborate on this definition by including knowledge of the petitioner’s “product, service, research, equipment, techniques, management, or other interests and its application in international markets.”63 Pursuant to a 1994 INS Memorandum,64 which has recently been reaffirmed,65 specialized knowledge must be “different from that generally found in the particular industry” and “need not be proprietary or unique, but it must be different or uncommon,” and held at an “advanced” level.66 There is also no need to show a labor shortage for this particular skill in the US. Thus when drafting a response to an RFE questioning whether a beneficiary will be employed in a specialized knowledge capacity, the practitioner must clarify that the knowledge possessed was gained within the employment of the foreign entity. A computer programmer who possesses generic, albeit complex skills, may not qualify as a “specialized knowledge” employee. On the other hand, the same programmer who is being transferred to the US to implement a software product or system specially developed by the petitioning entity would be able to qualify for L-1B classification. It should be highlighted that the “knowledge is distinguished by some unusual qualification and not generally known to by practitioner’s in the alien’s industry”67 and that passing on such knowledge to another employee would cause significant economic impact. Similarly, a cook who possesses knowledge of the unique recipes of the petitioning restaurant, or who may also possess knowledge of the restaurants techniques of replicating the recipe to many consumers, might qualify for the L-1B visa. RFEs also tend to confuse the requirements for an L-1A and L-1B petition. In the context of a specialized knowledge employee, the RFE should not be asking for organization charts or description of duties and percentage of time spent on duties, which are more appropriate for determining whether an alien will be working in an executive or managerial capacity.68 Also, requiring the specialized knowledge to be “unique to the industry” or “one of a kind” is an invented standard and the more appropriate standard is “unusual or distinct.” 69 Can a flight attendant qualify for “specialized knowledge” or L-1B visa? This question was answered affirmatively by a District Court after the Service sought to revoke previously approved L-1B petitions. In Delta v. INS,70 an unpublished decision, the Service had previously revoked the prior approval of L-1B petitions that Delta had filed for 25 flight attendants on the ground that the job offer was simply that of a flight attendant and did not appear to be a specialized knowledge job. Delta asserted that the Warsaw-based flight attendants were specifically selected because of their native language experience and their training in “Delta’s specialized crosscultural in-flight service product,” and would assist in the design and development of European Cultural/Service Training Modules as part of Delta’s coordination of all of its transatlantic flights into JFK International airport in New York. The District Court in the DC Circuit granted summary judgment in favor of Delta holding that under INS regulations, an L-1B could only be revoked in case of a “gross error,” and there was none in that case. What Delta v. INS instructs is that unless the Service can show it made a “gross error” in approving the prior L-1B petition, revocation is not appropriate. L-1 Visa Usage in lieu of the H-1B Visa In light of the H-1B cap that was reached on February 17, 2004, there may be heightened concern that the L-1 visa is being used to circumvent the H 1B visa. Even before the cap was reached, there was a growing perception that employers to avoid the H-1B requirements of prevailing wages were using the L-1 visa. An article in Business Week 71 also highlighted how major US companies have outsourced their IT functions, laid off US workers and replaced them with L-1 foreign workers supplied by major Indian technology consulting firms. Notwithstanding the media hype and controversy surrounding the L-1, it is still possible for a consulting firm, be it a technology firm or another type of consulting firm, to petition for an L-1 visa even if the beneficiary of that petition will be working at a third party site. If the Service poses an objection, the practitioner should refer to a 1996 Department of State (DOS) cable, which states that offsite work on an L-1 visa is common practice and “is not in and of itself sufficient to warrant visa refusal.”72 According to that cable, a determination must still be made whether a person has specialized knowledge and whether the petitioner or a third party is controlling the worker. Thus, if the L-1B’s employment is directed and supervised by the third party contractor, it may be viewed as “a simple contract labor arrangement” rather than the employee possessing specialized knowledge of the sending company’s procedures, services, research, equipment or techniques. More recently, due to Congressional concern about increased L-1 usage after the H-1B cap, the DOS issued a cable 73 again reminding its consular officers “that there is no legal reason why aliens eligible for H-1B status cannot legitimately seek out other types of visas, including L.” The practitioner can now make reference to this cable as well, which highlights that so long as there is an existence of employer-employee relationship, characterized by a right of control rather than source of salary, an L-1 employee can be located at a third party site. This is true of managers, executives and specialty knowledge employees. A specialized knowledge employee may also be assigned to a third party site so long as that individual’s employment continues to be controlled by the petitioning entity and the person is using the “specialized knowledge” of the petitioner at the third party job site. O-1 RFES Overview 74 The O-1 nonimmigrant provisions for aliens of extraordinary abilities are, by their nature, intended to apply to a limited cohort of foreign nationals who possess “extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim…and whose achievements have been recognized in the field through extensive documentation.”75 Given the admittedly high standards inherent in this classification, comparatively few foreign nationals qualify for O-1 coverage. In fiscal year 2003, only 6,126 individuals obtained O-1 visas; in FY 2002, only 6,026 such visas were granted. 76 Yet, the O-1 provisions have been established specifically to provide a vehicle for highly advanced, outstanding foreign nationals to engage in a wide range of activities in the United States. It has been our observation that a disproportionate number of O-1 approvals cover aliens working in the arts, athletics, academics, and scientific research, owing to a certain self-selection process that would tend to require the services of individuals possessing ex-traordinary abilities. It is, though, important to note that the O-1 provisions specifically focus on the intrinsic extraordinary abilities of the alien beneficiary, rather than upon the needs of the petitioner or the requirements of the position to be filled. Particularly in light of the H-1B quota cap, the O-1 visa classification can be expected to assume increasing relevance for certain, select, and extraordinarily qualified foreign nationals seeking to assume positions in the United States. Admittedly, the term “extraordinary abilities” involves a certain degree of subjective judgment. In fact, to a degree greater than is the case with most other nonimmigrant classifications, the operative concept involves certain discretionary judgment calls and personal evaluations by the immigration adjudicator rather than relying upon objective, quantifiable standards that have been stipulated by the regulations, administrative decisions, and judicial review. Whereas the Service disposition toward O-1 petitions had previously been rather liberal, the institution of a “Zero Tolerance” policy has translated into a consistent pattern of RFEs and denials, arguably resulting from ideological bias rather than an effectuation of statutory requirements.77 Furthermore, it appears as though an O-1 training session held in the spring of 2002 on O-1 standards further fueled a major retrenchment leading to a severe stringency in O-1 adjudication patterns. 78 Illustrative of this point, of the roughly 50 appeals of O-1 denials taken to Administrative Appeals Office (AAO) during calendar year 2003, only 4 appeals were sustained. 79 Just to summarize, extraordinary abilities for O-1 purposes must be demonstrated by “sustained national or international acclaim” as evidenced by either the receipt of a major internationally recognized award or fulfillment of at least three of the eight criteria appearing in the regulations. The criteria for O 1 purposes are the following:
O-1 Extensions O-1 petitions can be initially granted for up to three years and can thereafter be extended in one-year increments based upon continuing employment with the petitioner.81 Particularly as a consequence of a previously more liberalized standard of adjudication, many foreign nationals were initially accorded O-1 status only to be denied or RFEd at the time of filing requests for extensions. In short, an alien deemed to be of extraordinary abilities in the past had somehow regressed to a lesser level of attainment with the passage of time. The issue here essentially involves whether the Service should fully readjudicate O-1 extensions or whether there are various considerations (presumably involving administrative efficiency and the integrity of the process itself) that would grant some deference be given to the previous adjudication. In a recent opinion letter, the Service has stated that O-1 extensions should not be re-adjudicated de novo, but rather that the Service should presume the approvability for extensions of previously approved O-1 petitions. 82 The Service reserves the right to readjudicate an O-1 extension and to issue an RFE or denial under the following enumerated circumstances: 1) that there has been fraud or material misrepresentation on the part of the petitioner obtaining the original O 1 approval; 2) that the Service made gross legal and/or procedural error when making the original approval; or 3) that the approved activity has ceased or materially changed. 83 Therefore, in the O-1 extension context, the burden shifts to the Service to establish that its issuance of an RFE and/or denial is premised upon one of these three stipulated reasons. Conversely, though, Service Adjudicators should not be issuing Requests For Evidence or denials based merely upon a substitution of current adjudicatory norms for the initially rendered decision. Based upon this Opinion Letter, Service adjudicators simply should not readjudicate the issue of the alien’s extraordinary ability in instances in which this determination has been previously and favorably made. The current CIS policy statement further suggests that when filing O-1 extensions, the petitioner does not need to go through an elaborate petition process, including extensive outside support letters and professional peer consultation statements. Rather, in the interests of administrative efficiency and elemental fairness, a petitioner should be able to sustain its burden for O-1 extension purposes by reiterating in a probative manner the essential bona fides of the alien’s extraordinary abilities. In most instances, this will simply entail a summary statement from the petitioner confirming its ongoing employment intentions as well as summarizing the continuing productivity and ongoing achievements of the alien beneficiary. In light of this new policy provision for O-1 extensions, the Service has further indicated its agreement to reopen cases on Service motion for the purpose of considering and approving O-1 extensions for cases that have previously been denied. In order to request a reopening of an O-1 extension denial, practitioners should submit a written statement along with a copy of the denial notice so as to explain the basis under current Service policy for reopening and approving the extension request. This information should be sent to the attention of the following: Joseph Holiday One of the recurring issues simply concerns the definition of the alien’s field of endeavor. The regulations require that the alien demonstrate extraordinary ability as well as prominence in the “field of expertise” (for aliens engaged in the sciences, education, business, or athletics)85 or the “field of endeavor” (for aliens engaged in the arts).86 Without dwelling unduly on the distinction between “expertise” and “endeavor,” the more salient issue is to define the specific area of endeavor (or is it expertise) in which the alien needs to demonstrate his/her “extraordinary ability…[as] demonstrated by sustained national or international acclaim…” To put the issue in more colloquial terms, the goal may very well be to establish that the alien is a big fish in a small but defined and recognized pool. Therefore, while the alien may be relatively unknown within a general field of endeavor, such as medicine, he/she may hold great prominence within a specific, focused, and emerging field of endeavor. For example, the alien beneficiary may be relatively unknown within the entire field of neurology, but quite prominent within gene therapy investigations related to neurochemical imbalances as related to Alzheimer’s disease. If the Service will accept that the field of expertise should be considered as this narrowly defined, focused field, then it becomes somewhat more manageable to establish the various constituent elements required for O-1 entitlement. Particularly within the dynamic environment of biomedicine in which the scientific community is constantly pushing outward the frontiers of knowledge so as to create new fields of endeavor, it becomes critically important to define the field of endeavor, since this constitutes the universe for judging the alien’s renown in the field. At the stage of rebuttal or appeal, the resubmitted material should define and limit precisely the alien’s field of endeavor. The law itself does not precisely define or limit this particular term in the O-1 context, which should provide the practitioner with some flexibility to proactively define and limit the field of expertise in a manner legitimately reflecting upon the alien beneficiary’s prominence and extraordinary abilities within the field. Within the O-1 context, letters from existing professional organizations, professional journals, and/or established academic figures can be usefully presented for the purpose of defining the alien’s field of endeavor. It is further useful to highlight the overall field of endeavor itself as an emerging, cutting-edge field that may not only be populated by relatively few practitioners, and which by its nature is so advanced and cutting-edge that entry into the field may in and of itself be highly suggestive of extraordinary abilities. Once the field of endeavor has been defined precisely in a coherent and limited fashion, it is then possible to deal more appropriately with the related statutorily required concepts of “sustained” acclaim, widely recognized achievements, and extraordinary ability. Concept of “Sustained” The statutory requirement for O-1 entitlement includes a temporal element of showing that the alien does not merely possess extraordinary abilities, but rather that these abilities have been “demonstrated by sustained national or international acclaim.” (emphasis added)87 The AAO Decisions do not specifically shed light on the meaning of “sustained,” but this concept seems to permeate its analysis of the criteria appearing in the regulations for O-1 entitlement. The concept here appears to be that an alien beneficiary cannot achieve a high level of recognized achievement if he/she has not been actively working for a substantial period of time in the field of endeavor. Therefore, recent graduates or junior researchers/ practitioners in the field of endeavor would logically fail to demonstrate a sustained contribution to the field so as to merit O-1 entitlement, and this rationale has recurrently been cited in various notices from the Service. 88 There are two somewhat overlapping approaches for demonstrating the alien beneficiary’s sustained contributions to the field so as to result in sustained acclaim. First, related to the discussion appearing above, in the event that the alien is engaged in an emerging, cutting-edge field of endeavor, the temporal frame of reference would legitimately be of limited duration. After all, if the field itself is of recent creation, the alien’s contribution to the field may span much of the field’s existence if not actually be coextensive with the field itself. Second, in showing a sustained track record of achievement, it is important to fully consider the alien’s involvement in the field back in his/her home country. The statute specifically recognizes that the alien’s sustained acclaim may be on either a national or international level. Very often, the alien has achieved national acclaim in the home country, which indeed forms the imperative for seeking further, expanded professional opportunities in the United States. Original Contributions of Major Significance The regulatory criteria for the alien to show “original contributions of major significance,” by its nature, involve two highly subjective determinations relating to the meaning of “original” and “major.” The AAO decisions have arguably been restrictive in its consideration of an alien’s original and significant contributions of this concept, oftentimes adding in an additional requirement that the work be of “ground-breaking” significance.89 Various recent decisions indicate that exploratory work ultimately paving the way for future development is not sufficient;90 that patents and original discoveries are the norm in the scientific communities;91 that highly competitive grant awards, including those issued by the National Institutes of Health, are not highly probative; and that the achievements made by the alien as a member of a research team would tend to diminish the alien’s own individual contributions, even if the achievements of the team itself are both original and of major significance. 93 There are several points to be raised at the rebuttal or appeal process. First, it is important at this stage to get strong testimonial letters, particularly as written by established professionals in the field preferably working at other institutions. The Service seems to value more highly letters from referees who may not have a personal relationship with the alien beneficiary, but rather who can judge the work of the alien from an arm’s length, dispassionate point of view. 94 Second, in response to the failure of the alien’s research to produce concrete, tangible results, some attention should be devoted to the nature of scientific research. Essentially, research can be subdivided into three classifications: 1) bench research, which refers to laboratory-based, basic science; 2) translational research, which is essentially the bridge between the theoretical laboratory-based construct and clinical application; and 3) clinical or applied investigations in which the research is being directly applied to real world applications. It is simply unfair and counterproductive to judge the efficacy of either bench or translational research in terms of concrete results. The essential focus of this type of research is foundational, leading to ultimate future advancements of a highly speculative manner. By its nature, these types of research endeavors do not aim for concrete results, but rather strain for postulations and theories that ultimately may or may not result in practical applications. But the assessment of the research itself is completely divorced from its application. Thereby, it would seem appropriate to look to surrogate markers to determine whether a theoretical investigator possesses extraordinary abilities, such as the stature of the employing institution (which presumably would create a track record for the employment of outstanding figures), major grant funding, publication record of the laboratory itself, and testimonials not only regarding the alien but more generally on the research team itself. Third, given the intricacy and incredible complexity of scientific research, the entire direction in the scientific establishment is to encourage and facilitate collaborative research efforts. It is simply no longer feasible to expect that major scientific discoveries will be attained by a single investigator working in isolation in a given laboratory. Rather, most meaningful research is of a collaborative and multi-disciplinary nature involving bigger laboratories and larger and more diversely specialized groups of investigators, which in their totality add up to “team science.”95 This would seem to reinforce that the extraordinary abilities of the alien cannot and logically should not be considered in isolation, but rather in terms of the overall caliber of the entire research initiative. Fourth, in a period of diminished research grant funding, particularly for new investigators, NIH and other funding grant awards should be regarded as major testimonials of an alien beneficiary’s extraordinary abilities. NIH grant money is not only highly competitive, but it is specifically mandated for distribution to outstanding research initiatives of national significance.96 Furthermore, of all NIH grant distributions, only 4% was awarded to young, first-time investigators.97 In short, established investigators seems to be granted substantially greater preference in their funding requests. Therefore, it should be highly probative for O-1 consideration if an alien beneficiary has either received in his/her own right NIH funding or is a listed investigator on NIH funded grants. Fifth, there have been various instances in which patents and specific concrete results have been recognized as reflecting upon an alien’s extraordinary abilities. Even in these instances, though, it is not sufficient simply to present the patent certificate. Rather, it is extremely important, particularly through outside support letters, to establish the nature of the patent and its importance in the field, the reasons why the development of the patent could only be attained by the individual research team of extraordinary ability. 98 Consultation and Outside Support Letters The Service seems to maintain a hierarchy in its evaluation of outside support letters, arranged as following: 1) peer consultation statements; 2) letters written by others who do not personally know the alien but rather rely upon an objective analysis of the alien’s achievements; and 3) letters written by colleagues within the petitioning organization or those having a personal acquaintance of the foreign national. It may be somewhat disingenuous to discount so severely letters from individuals having a personal acquaintance with the alien beneficiary. As noted in the discussion appearing above, the alien’s field of endeavor may be populated by a rather small coterie of participants, thereby all but ensuring that the field’s community of scholars personally as well as professionally know each other. Furthermore, outside letters of support are presumably written by established figures in the field having the substantive insight to make a considered judgment of the alien beneficiary’s abilities. We would submit that it is palpably unfair to believe that such letter-writers would sully their reputations by making false or misleading assessments of the alien simply based upon their professional acquaintance. Nevertheless, particularly in instances in which the referee has a personal acquaintance with the alien beneficiary, it is important to stress the letter-writer’s integrity, commitment to the field of endeavor and the professional bases under which the assessment is being provided. Conversely, we would submit that is it quite counterproductive for the referee to offer insights into the alien beneficiary’s personal character or personality, since this line of insight would tend to diminish the objective assessment of the alien’s professional abilities. Above all, it is highly desirable to arrange for strong and multiple peer consultation statements and, equally importantly, to impress upon the Service that such letters are offered not as simply external support letters but rather as peer consultation statements within the regulatory definition. The consultation requirement includes attestations from either a peer group as defined as “a group or organization which is comprised of practitioners of the alien’s occupation” or “a person or persons with expertise in the field.”99 This seems to indicate that the consultation requirement can be discharged by leading and highly recognized figures in the alien’s field of endeavor whose opinions should be both accepted and valued by the Service. Such consultation statements could conceivably be written by individuals who in their own right possess outstanding and highly recognized achievements, as would be accorded to ranking officials in public or private institutions even if writing in their own individual capacity rather than on behalf of a professional organization. Illustrative of this point is a recent kickback of an initial O-1 petition for an academic physician. In response to an RFE asserting the alien’s failure to meet the threshold of extraordinary ability, the sole evidence presented to this assertion was a rather extensive letter from a professional figure of unquestioned achievement in the field, as established by his pioneering work and countless awards and commendations, including having been named a recipient of a major Presidential commendation for contributions to the field. In this instance, the writer of the letter and the alien beneficiary were personally acquainted, and while this fact was acknowledged it was not stressed. 100 The letter presented for rebuttal purposes specifically and exclusively focused on the alien beneficiary’s existing work and future promise for attainment. Much of the letter focused on the alien’s role as an essential researcher in the laboratory of high national merit. There was some discussion on the alien’s unique contributions, but in general, the letter properly characterized the alien as an integral member of an outstanding research initiative, possessing a skill set of commensurate level to other investigators working in the laboratory. The letter further focused largely on the intricate, cutting-edge nature of the alien’s field of endeavor, which by implication reflected strongly on the alien’s own level of capability. In our opinion, the extraordinary prominence of the letter writer and his commitment to the alien’s immigration case made it logically indefensible [or inappropriate] for a Service adjudicator to substitute his/her own notion of extraordinary ability for the opinion clearly articulated by a recognized luminary in the field. Service adjudicators clearly are not versed in, nor should they be expected to be familiar with, the substantive nature of the alien’s achievements or the relevance or complexity of the alien’s endeavors. It is therefore precisely the practitioner’s role to translate these substantive intricacies, confusing vocabulary, erudite endeavors, abstruse insights, and overall achievements into an understandable, cognizable presentation. Invariably, the initial presentation of a case contained an exhaustive, detailed letter from the petitioning organization. Therefore, particularly at the rebuttal stage, which also occurs at a time when it is clear to all parties that there is no margin of error, it is oftentimes extremely important to marshal outside and consultative support letters written by individuals who can credibly assess and present the alien’s extraordinary abilities. It has been our experience that when faced with a very real possibility of denial, it is oftentimes possible to obtain highly effective letters from major figures and/or organizations or institutions which had previously declined to attest to the nature of the alien’s capabilities in the field. Conclusion The authors hope that the conscientious practitioner who responds to an RFE will ultimately obtain an approval for his/her client. Unfortunately, there may be times when the Service denies the petition even after the submission of a most diligent and detailed response. While it is beyond the scope of this article to discuss strategies after a denial, the practitioner may still find this article useful to pursue motions to reopen with the Service, appeals to the AAO, refiling the petition, or even litigation in federal court. We also hope that the practitioner in managing expectations, pre and post-RFE, would have prepared the client for a denial and continue to have the confidence of the client in pursuing strategies to overcome the denial. * Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is the incoming Chair of the Board of Trustees of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association of the Bar of the City of New York and past Chair of the Committee on Immigration and Nationality Law of the same Association. Mr. Mehta frequently lectures on various immigration subjects at legal seminars, workshops and universities. He has received an AV rating from Martindale-Hubbell and is also listed in the International Who’s Who of Business Lawyers. Robert D. Aronson, a principal in the Minneapolis-based immigration law firm of Ingber & Aronson, P.A., is regarded as a leading national authority in immigration matters for foreign physicians. He has lectured and published widely for the physician, healthcare, academic, and corporate communities. He received his law degree from Indiana University and was a Fulbright Fellow at the law schools of Harvard University and Moscow State University (Russia). He is an Adjunct Professor at the University of St. Thomas, a former fellow of the Walter F. Mondale Leadership Institute of the University of Minnesota, and currently serves as Vice Chair of the Hebrew Immigrant Aid Society (HIAS). He also currently serves as the liaison of the American Immigration Lawyers Association (AILA) on J-1 waiver matters with the Department of State. By Cyrus D. Mehta and Robert D. Aronson. 1. “Zero Tolerance Policy Memorandum,” posted at AILA InfoNet at Doc. No. 03121942 (Dec. 19, 2003) |
Aronson & Associates, P.A. |