Who she is: Attorney Linda Rahal is Chief Operating Officer of the Washington, DC-based immigration law firm Trow & Rahal, P.C..

What she does: Linda is also the creator of The Invisible Fence, a blog that pushes back on the ever-shifting regulations that keep educated international professionals from working in the U.S.

Why she does it: “Since joining Trow & Rahal in 1993, I have seen a dramatic shift in our immigration laws,” she explains. “I firmly believe that the U.S. government is building an ‘invisible fence’ around our borders. In my opinion, this is not healthy for the fiscal future of the country.”

BEHIND THE INVISIBLE FENCE

By Hope Katz Gibbs

As the COO of the DC-based immigration law firm Trow & Rahal, Linda Rahal guides nearly a dozen other attorneys and staff members to assist employees of corporate clients hoping to get visas and green cards to work in the U.S.

Having practiced immigration and citizenship law as an attorney since 1992, her reputation within the legal community has led to selection by her peers for inclusion in several prestigious publications, including The Best Lawyers in America, the Legal Elite Readers Poll of SmartCEO magazine, Washingtonian Magazine’s “Top Lawyers,” the Martindale-Hubbell Bar Register of Preeminent Lawyers, and the International Who’s Who of Business Immigration Lawyers, where Trow & Rahal is referred to as a “very good, very creative firm.”

Since opening the doors in 1993 with her business partner Steve Trow, Linda has helped obtain visas for hundreds of foreign national employees of corporations, which are bringing educated international professionals to work in America.

However, she is seeing a dramatic shift in our immigration laws, which are now serving to keep many of these potential high-functioning citizens out of the country.

“That worries me deeply,” says Linda. “If you build a tangible fence with gates, people know there is a barrier to entry and they can plan accordingly if they want to come through. But if you build an invisible fence, people can’t see it until they crash into it. There’s no way for them to plan or prepare, and so they plan to go elsewhere. That’s the unfortunate situation we are finding ourselves in today.”

The result, she says, is that a lot of creative and innovative people are being driven away, or are giving up on trying to come to the US, because of a lack of transparency regarding the rules.

“It’s incredibly frustrating for companies to hire foreign nationals or to bring foreign nationals from offices abroad when the rules for who can work in the country change regularly, and with no prior notice,” Linda explains. “Plus, there is inconsistent decision making, which makes the system less predictable. What worked yesterday may not work today or tomorrow. The bottom line is that this invisible fence is keeping the wrong people out.”

Consider this recent case, which Linda wrote about in August 2010 on her blog.

USCIS continues to build the Invisible Fence: Consider its decision for L-1A Managers of multinational companies

By Immigration Attorney Linda Rahal
The Invisible Fence

The inconsistent adjudication and unpredictability of the U.S. Citizenship and Immigration Service (USCIS) is highlighted in a recent case I handled regarding an L-1A visa petition for senior level employees of a large multinational company based in South Africa with an office in California. This dilemma has plagued that firm for months. Now that it has been resolved, I can share some of the details.

The background

The petitioning multinational company has more than 40,000 employees worldwide, a subsidiary in the U.S., and a decade ago also had an office in Europe that housed its finance and tax departments that handled offshore activities outside of South Africa.

Due to internal factors, the company closed the office in Europe and moved its financial and tax functions to the U.S. office, where other management level employees were employed. As a result, the petitioning company relocated several key employees and their families — the type of activity that I believe our government should be encouraging.

Unfortunately, the California Service Center (CSC) of the USCIS rendered the move to be an “unpredictable and unreasonable decision,” which meant that on behalf of the company we had to file multiple L-1 visa petitions for one employee in an attempt to get an approval.

We also filed three L-1A visa petitions for other senior managers in the finance division. Two of them were approved after the issuance of extensive Requests for Evidence, but the third L-1A visa petition was denied under the L-1A category requiring that he supervise employees directly.

We then filed a second L-1A visa petition for the third employee under the other L-1 managerial category, as a person who manages an essential offshore tax function and only two levels down from the CEO. The CSC issued another extensive Request for Evidence, to which we responded.

The result? A denial of the second L-1A visa petition for this employee, this time as a manager responsible for an essential function rather than as a supervisory manager.

The reasons for the denial are the impetus for writing this as part of the Invisible Fence as the CIS articulated reasons that we have never seen before, and have no basis in the regulations or in case law.

Is the CSC Making Up New Law?

The denial for the second L-1A visa petition was long and extensive, but there were two primary reasons that stood out and seemed highly improper.

The first reason for the denial is that to be a functional manager, and to manage an essential function, it must be shown that the employee will not perform the day-to-day duties of the function but actually manage it. Therefore, in its Request for Evidence, the US CIS asked for the names and job titles of the employees that the employer will supervise.

This is ironic because the essential function manager L-1A category is for managers who don’t have supervisory. However, in response to this request we indicated that (1) the company would be hiring 2-3 employees once his manager came to the U.S; and (2) that he oversees and delegates work to all of the tax managers and accountants in the offices of the company worldwide, except for those at the parent company.

The CSC indicated in its denial that it cannot accept people who would be hired in the future as the facts have to exist as of the date of filing the L-1A visa petition and therefore, the employees to be hired do not count. It then indicated that the employees who he oversaw outside of the U.S. do not count because they are not U.S. employees. Therefore, the CSC wrote that it was not shown that he wouldn’t be performing the day-to-day duties of the function and therefore he does not qualify as a manager of an essential function.

For the proposition that the facts have to exist at the time of filing, there is case law to show that this is true. Therefore, I can accept the rationale for the denial that the people had not yet been hired in the U.S.

However, if you are filing an L-1A visa petition for what is known as a “new office” where a person is coming to the U.S. to open a new office, you can only show that future employees will be hired.

Signs of the Invisible Fence

The issue and unreasonableness of this decision comes from the CSC’s determination that supervising or overseeing employees outside the U.S. doesn’t count. However, there is absolutely no case law, policy memos or otherwise, that indicates that this law or policy exists. And in our global economy where people work with employees in other countries all of the time, this analysis by the CSC doesn’t make any sense at all.

Consider this:

• Confirmation of new policy / law by California Service Center (CSC) At first I thought that this was an isolated incident, until I found the notes of a Stakeholders meeting where the CSC confirmed this policy. In July I reviewed the notes of a January 27, 2010 “External Stakeholders Meeting” of the CSC with the American Immigration Lawyers Association (AILA), titled “Unofficial Notes.” This was a Q&A between CSC and AILA, during which the follow question was posed and answered:

• #22. L-1 Denials Members of AILA report denials of L-1A petitions when the beneficiary is managing offshore employees or a function supported by Offshore employees. The CSC advised that while employers are not precluded from filing these cases, the chances of approval are not high. When the Ombudsman’s office forwarded this to the CSC in regards to my case, the CSC said that this was not their official policy and that these were only unofficial notes. However, this was the policy indicated directly to AILA from the CSC. Even with the CIS Ombudsman’s office weighing in on this denial, the CSC stuck to its guns and indicated that the case was properly decided.

Resolution

While the Ombudsman was pursuing the denied functional manager L-1A visa petition with the CSC, we filed a third L-1 visa petition based upon specialized knowledge (L-1B). This petition was approved allowing our client to finally enter the U.S. with his family to start work at the company’s new location for his function. I expect that once he is working in the U.S. for the first 6-12 months, the company will hire direct reports in the U.S. and then he could qualify as a multinational manager for future petitions based upon supervising U.S. employees.

In my experience and opinion, I believe that a successful multinational company of this size that wants to transfer senior level managers to the U.S. should be encouraged — and even given incentives — to do so. It is this type of activity that will help bring jobs to the U.S.

Unfortunately, that was not the opinion of the USCIS. Instead, this firm had to spend gobs of time and money to file 3 L-1 visa petitions. As this continues to happen, my forecast is that more companies will rethink their plan to bring jobs to the America. I firmly believe that is not a useful outcome for anyone.

More about Linda Rahal

In 1992 Linda received her J.D. degree, magna cum laude, from the American University, Washington College of Law. She earned her B.A. degree, cum laude, in International Relations from Tufts University in 1986.

A member of the American Immigration Lawyers Association (AILA) for over 10 years, Linda is also a member of District of Columbia and Maryland Bar Associations, as well as the American Bar Association. She served for seven years on the Legal Advisory Board of the Capital Area Immigrants’ Rights Coalition (CAIR Coalition) a non-profit organization in Washington, DC.

Linda has a reputation for being a lawyer who goes the distance.

In October 2005, she competed in the World Championship Ironman Competition in Kona, Hawaii as part of the CEO Ironman Challenge – and she went the distance. An avid athlete, Linda has completed numerous marathons and Ironman triathlons. She continues to enjoy training and participating in triathlons, as well as other athletic and outdoor activities. She has combined her passion with her work and also helps professional triathletes and other athletes to obtain visas to live, train and race in the United States.

For corporate clients and outside organizations, Linda conducts customized seminars on immigration, compliance, and related issues. Linda is also a frequent speaker at local SHRM (Society for Human Resource Management) events.

Questions? Send Linda an email at linda@trowlaw.com.