http://www.greencardapply.com/news/news09/news09_0421.htm

1) H-1B Denials Based on Unpublished AAO Decision and Definition of “Affiliated With” for H-1B Cap Purposes

At the conclusion of October 28, 2008 USCIS - AILA (American Immigration Lawyers Association) meeting, USCIS indicated that is was evaluating the definition of “affiliated with” for H-1B cap purposes and was considering issuing clarifying guidance to the field. To date, no such guidance has been issued, the absence of which has continued to foster uncertainty and confusion for those organizations relying on current Service guidance when filing non-cap-subject H-1B petitions under the “affiliated with” exception.

In addition, AILA members continue to report inconsistent decisions being issued by the field that contravene current Service policy memoranda. The lack of consistency and transparency is especially problematic for those organizations who must decide to file as H-1B cap subject by April 1, 2009, or risk being unable to hire critically needed staff for the upcoming 2009/2010 school year. AILA strongly urges USCIS to issue guidance to the field clarifying the “affiliated with” standard as articulated by Michael Aytes in the June 6, 2006, memorandum.7

Moreover, AILA urges that guidance to clarify that where the cap-exemption is because the employer is the “qualifying” entity, all H-1B employees of the qualifying employer are cap-exempt, and that only where the employer claims cap-exemption because the H-1B alien will be “employed at” a location that itself qualifies for cap-exemption does the petitioner have the obligation to show that the H-1B alien will be employed in an activity that furthers the educational or research mission of the institution or location at which the H-1B alien’s services are to be performed.

2) Continued Evolution of the Definition of Specialized Knowledge and Recent L-1B Denials Without the Benefit of Formal Rule-Making or the Issuance of Updated Policy Guidance

As part of October 28, 2008, meeting and discussion of USCIS’ evolving definition of L-1B specialized knowledge, AILA brought a number of decisions to the attention of USIS HQ’s that contradicted USCIS’s long standing stated guidance on L-1B adjudications. To date, no formal rule-making or updated policy guidance has been issued to publicly announce a change in the standard of review for L-1A or L-1B petitions.

AILA understands that USCIS has held recent training sessions to ensure a “more consistent approach” to the evaluation of L-1B applications and that USCIS has begun to pay extra attention to this issue.6 In the absence of formal rule-making and/or updated policy guidance that changes the standard for L-1A and L-1B adjudications AILA renews its request that USCIS send instruction to the field that prior legacy INS memoranda from James Puleo and Fujie Ohata (“Interpretation of Special Knowledge” CO-214L-P (James A. Puleo, Act. Exec. Assoc. Comm., Mar. 9, 1994) and “Interpretation of Specialized Knowledge” (INS Memorandum, Fujie O. Ohata, Assoc. Comm., Dec. 20, 2002)) on the proper standard for assessing “specialized knowledge” remain in effect and that Service Centers should not rely on unpublished decisions by the AAO that contradict USCIS’s long standing guidance on this issue to deny L-1B petitions.

AILA has attached a number of recent examples of Requests for Evidence (RFEs) and denials that contravene USCIS’s publicly stated standard of review for L-1B petitions. In addition, AILA requests a copy of the training materials and/or unpublished guidance used by USCIS in its recent training sessions on this issue.

3) The Weight of USCIS Policy Memoranda

At the conclusion of our meeting on October 28, 2008, USCIS confirmed that the AAO (Administrative Appeals Office) is required to follow applicable law, regulations, binding decisions and agency policies. In addition, USCIS requested that AILA bring to its attention decisions issued by USCIS that are contrary to existing statutes, regulations, binding case law, precedent decisions or applicable policy guidance.

Prior to our meeting AILA had submitted a number of examples on this issue. However, AILA members still report denials being issued that contravene current publinternal memoranda. AILA requests an update on the progress being made by USCIS to address the disconnect between HQ’s reaffirmation of Section 3.4 of the Adjudicator’s Field Manual (AFM) and decisions continuing to being issued by the field that contradict this directive. http://www.greencardapply.com/news/news09/news09_0421.htm



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