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Sometimes it feels like I am practicing immigration law in a snow globe that was turned upside down on Sept. 11. Although the attacks have indelibly altered the immigration landscape, it was the less-publicized events of March 11, 2002 — six months later to the day — that more immediately and radically transformed the field by spawning a “culture of no” in the agencies that administer immigration law. On that day, the Huffman Aviation flight school received formal notice from an Immigration and Naturalization Service contractor of the approval of flight training applications for Marwan Al-Shehhi and Mohammed Atta, who piloted aircraft into the World Trade Center six months earlier. The crisis was elevated again only days later when INS inspectors allowed several Pakistani crew members from a ship docked in Norfolk, Va., to enter the country even though they may have been on a national security lookout list. Facing a management crisis and tremendous pressure from Congress and the administration, the INS heralded a policy of “zero tolerance” with regard to employees who fail to abide strictly by official policy. The agency threatened termination of employment and the like for the erroneous approval of an immigration benefit. Recognizing that the zero tolerance policy predictably caused adjudicators to freeze with fear that any exercise of discretion would face subsequent criticism, government officials have acknowledged the need to take a step back. But even if the Bureau of Citizenship and Immigration Services (BCIS), which has inherited benefits adjudication from the former INS, eventually softens its view of zero tolerance, immigration is now practiced in a “culture of no,” which still makes it safer to deny a benefit than to exercise discretion or judgment favorably. So now more than ever, the immigration lawyer’s challenge is to “think like a litigator” and anticipate, analyze, and address every potential difficulty in a petition. We face amplified pressure to present a credible, thoroughly documented and well-organized presentation that walks the adjudicator along a clear path to approval, particularly in the complex case. In theory if not practice, the BCIS shares with us the mutual goal of facilitating the grant of immigration benefits when benefits are due. Unless and until we can remedy the shortfalls in the immigration process through litigation or other means, our challenge for now is to build a compelling case for the benefit sought through meticulous, creative, and candid lawyering, with information and detail far greater than was required in the past. DOCUMENT, DOCUMENT, DOCUMENT A few examples of the type of preparation that is now necessary to succeed in an upended practice illustrate the point. • H-1B Visas. To employ a foreign national as a temporary worker in the “H-1B” visa category, an employer must obtain BCIS approval of a petition showing that the job offered is a “specialty occupation,” which generally requires at least a bachelor’s degree in a specific discipline as a condition of entry into the field. Additionally, the evidence must prove that the employee qualifies to perform services in the specialty occupation by holding either the required degree or some equivalent combination of education and/or progressively responsible experience. In response to an H-1B petition, the BCIS is now almost expected to issue a request for evidence asserting that a job is not in a specialty occupation, or that the beneficiary’s experience falls short of degree equivalence. To avoid such a request, it is necessary to present ample, specific evidence on both points from the outset. The letter from the employer-petitioner in an H-1B case acts as the brief. It must succinctly introduce the case, summarize the theory of how the threshold specialty occupation standards are met, detail the job duties, and establish that a specific degree is normally required by the employer or in the industry or is necessary in light of complex duties. While it previously may have been considered overkill, it’s now advisable to provide third-party evidence, especially in emerging technologies. This includes statements from trade associations, university professors, or industry associates attesting to the degree requirement and establishing its foundation. And, in cases premised on the equivalence of a beneficiary’s experience to the requisite degree, it is critical to provide specific statements of employment verification as well as detailed letters or affidavits from at least several qualified credentials evaluators, industry experts, and/or academics explaining how the beneficiary’s progressively responsible experience has resulted in the level of knowledge associated with the specific degree. Additionally, it can be helpful to cross-reference courses from the online catalog of a prestigious university for concise industry-specific descriptions of the skills and knowledge gleaned from the beneficiary’s work experience. The petitioner’s letter, of course, must tie all this evidence together and chart a clear course to the conclusion that the job is in a specialty occupation and that the beneficiary has the requisite qualifications. Because many visa petitions involve highly technical subject matter, the letter should explain the industry and the job in terms that will be meaningful to the BCIS adjudicator, who may typically possess a bachelor’s degree, and in a manner that signals appropriate respect for the adjudicator’s intelligence. • Technology Alert List. The State Department issues visas through its consuls abroad, which now are required to obtain advance affirmative security clearances under many circumstances. One of these is on the application of a foreign national to work in the United States with a technology that may be subject to export control restrictions as determined by reference to the Technology Alert List, or TAL. Many listed technologies have “dual use” applications, i.e., for both military and perfectly appropriate civilian purposes, and an applicant who seeks to enter the United States for an entirely legitimate reason can be stranded abroad for months during an extended clearance process while a U.S. employer waits helplessly on the sidelines. Therefore, it is imperative to present evidence that the TAL does not apply, particularly if there is any ambiguity. Additionally, even though the TAL is not legally within the province of the BCIS, it is advisable to address this issue in any advance petition to the BCIS that may be required. For instance, a multinational nuclear instrumentation firm recently sought to transfer several German scientists to a U.S. affiliate to meet explosive demand for its homeland security applications, including detectors used at airport screening points. This arguably implicated the TAL, which covers technologies associated with nuclear material for both peaceful and military applications. Thus, evidence was presented in the form of letters from U.S. government contractors and certification by the International Atomic Energy Association that the petitioner’s technologies are used by U.S. Customs Service inspectors to detect and measure nuclear materials precisely for homeland security protection. This resolved the TAL inquiry at its inception, avoided extended processing delays, and permitted the prompt transfer of essential personnel to the United States. • Business Visitors. A final example of modern-day heightened scrutiny in immigration practice can be seen in the application of a business visitor on admission or, more particularly, for an extension of stay. This category (known as the B-1 classification) is appropriate for aliens traveling to the United States to engage in business but not to work or be employed. Thus, the business visitor can negotiate contracts, consult with business associates, or investigate investments, but may not engage in gainful employment. Consistent with a long-standing policy of facilitating international travel and commerce, a business visitor’s application was predictably granted upon relatively straightforward proof of a foreign residence, intent to return at the conclusion of the stay (such as a return plane ticket), proof of finances obviating the need to work (such as a bank statement), and a plausible explanation of the business purpose. Although the BCIS withdrew proposed regulations that would have curtailed the length of a visit and would have all but foreclosed extensions of stay, business visitor applications appear to be subject to a higher evidentiary burden than in the past, particularly for applicants from certain predominantly Muslim countries. For instance, an application for extension of a business visit must now be accompanied by detailed evidence of a business itinerary and contacts in the United States; strong ties abroad, such as permanent employment and close family ties making return more likely; the means of support of dependents abroad; a specific and convincing explanation as to why the original period of stay was inadequate; proof that the applicant will depart at the conclusion of the visit; and documentation of the business purpose, such as proof of any investments under negotiation. CALMING THE SNOW GLOBE? No one knows when, if ever, the snow globe of immigration practice will be restored to its upright position. Meanwhile, the immigration bar faces a formidable task in representing foreign nationals and the relatives and employers who sponsor them to travel to the United States to reunite families or provide highly skilled labor that is not otherwise available within our borders. We do this in the wake of events that have revealed the frailty of our homeland security and at the hands of an agency charged first and foremost with the legitimate goal of protecting the homeland. Our immediate challenge is to secure the approval of petitions and applications for benefits through scrupulous and strategic advocacy that commands the respect and endorsement of the BCIS adjudicator. Beyond that, our challenge for the future is to restore to the snow globe its heritage as a nation of immigrants, which hopefully will return us to a sense of greater balance and fairness in the immigration benefits arena. Denise C. Hammond practices immigration law in Gaithersburg, Md., with an emphasis on business issues. A former litigator with the Justice Department and with Pierson Ball & Dowd (now Reed Smith), she has chaired the immigration section of the Bar Association of Montgomery County, and is active in the American Immigration Lawyers Association.

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