Be on the lookout for the latest news on changes in the law, entry problems and cases where criminal law affects residency in the US.
We live in a global world. Cross-border exchanges of goods and services are ordinary occurrences. If we want the best economy, people must move across borders with the same efficiency as goods and services. Laws need to facilitate the efficient, timely and legal entry of immigrants critical to businesses and other enterprises.
Legislatures pass laws, law enforcement agencies enforce them and courts interpret them. The original goal of immigration law was to insure the expeditious entry of people critical to building our country. The laws must be enforceable, of course, but they must have a clear meaning. We can then keep the undesirables out, and admit those who will be of benefit.
Unfortunately, few laws are as confusing and as subject to conflicting interpretations as the Immigration and Nationality Act. Why are there so many conflicting interpretations of immigration guidelines? Largely because few laws are as subject to political tensions. In periods of xenophobia – we are in one now –negative readings on INA provisions increase, and we exclude more than we admit.
While political pressures are inescapable, pressures created by the government agencies itself are, frankly, unacceptable (and possibly also induced by politics). So when an immigration court, sua sponte, suddenly rejects accepted interpretation, both the public and the professional bar are at a loss what to do.
I was reminded of all this when my office successfully prosecuted an L1b “specialized knowledge” petition for an alien who had worked for just one year for the employer abroad.
Consider this: for years, the term “specialized knowledge”, the sine qua non of the L1b transferee visa, was read one way as a term referring to an alien’s possession of knowledge that is important, proprietary and essential to the one company for which he worked. The amount of time needed for acquiring that knowledge was not an issue. When a court ruling suddenly changes the criteria, a whole category of visa suddenly becomes shaky.
In a case popularly referred to as GST – Matter of [name not provided], WAC-07-277-53214 (AAO, July 22, 2008) – the AAO had gone against both some 20 years of precedent and Congressional intent and worked in criteria that had previously been eliminated by both legislation and internal memos. I read this case after preparing and filing the petition and background data.
The AAO had, among other things, stated – contrary to clear Congressional intent – that the alien could have specialized knowledge only after spending several years in work abroad.
While the decision was not binding and was rendered by an appellate body I assumed, since AAO decisions are regularly used as guidelines, that our client’s petition would be denied. The uncertainty led me to rehearse how I would explain that denial to the petitioner. It is hard enough, in this period of xenophobia, to file successful petitions. The government cannot be excused for making it harder by reverting to outdated criteria to establish a different standard.
When our client’s petition wasn’t denied, I concluded that the examiner had instead followed what I had every right to expect is binding criteria. The uncertainty, however, was unsettling.
The law, and the lawyers who make use of it, need predictability. If government agencies arbitrarily ignore precedent, we immigration attorneys will be unable either to process matters in a cost effective way or advise clients on what to expect, and we will damage our economy by excluding valuable aliens.