immigration & nationality law handbook, 2008â€“09 - aila webcle

Copyright © 2008, American Immigration Lawyers Association. Reprinted, with permission, from Immigration & Nationality Law Handbook (2008–09 Edition), available from AILA Publications, 1-800-982-2839, www.ailapubs.org.

STRUCTURING THE ROLE OF THE PARALEGAL: TOOLS, TRAINING, AND SUPERVISION

by Joan S. Claxton, Andrew B. Greenfield, Helen L. Jugović, and Alberta M. Poland∗

INTRODUCTION Immigration attorneys have long debated what

type of case is best for a beginning paralegal, and how to teach “enough” immigration law to a new paralegal so that he or she can meet a firm’s busi-ness needs during the various stages of his or her career. Most of us have discovered gaps in training or quality control, and asked ourselves how those problems can be avoided in the future while still maintaining efficiency. Structuring the role of the paralegal is challenging and time consuming. But properly doing so can have great benefits at times,

1

∗ Joan S. Claxton is an attorney with Hammond Claxton, P.C. and a member of the Maryland and District of Columbia bars. She is a graduate of the American University Washing-ton College of Law and the George Washington University Paralegal Certificate Program. Ms. Claxton has a unique perspective on the role of paralegals and nonlawyer support staff due to her extensive experience as both paralegal and supervising attorney across a range of legal environments, from sole practitioners and small immigration firms to large international multipractice firms.

Andrew B. Greenfield is managing partner of Fragomen, Del Rey, Bernsen & Loewy, LLP’s Washington, D.C. office. He has served as vice chair of AILA’s Washington, D.C. chapter as well as on AILA’s Vermont Service Center Liai-son Committee. He received his bachelor’s degree with hon-ors from the University of Pennsylvania and his J.D. from the George Washington University Law School.

Helen L. Jugović joined the immigration law division of McKinney & Justice, P.A. in February 2008. Heading up the firm’s second office in Wilmington, NC, she counsels both individuals and businesses in all aspects of immigration law, including citizenship, employment-based immigration, and removal defense, in English and Spanish. Since 2007, she has served as the AILA Carolinas Chapter ICE Liaison.

Alberta M. Poland is director of special projects with Fragomen, Del Rey, Bernsen & Loewy, LLP. She began her career with Fragomen in 1974 as a corporate paralegal. She then served in a number of administrative/management ca-pacities for the firm until assuming her current role. Alberta is involved primarily in corporate compliance, training, cli-ent relations, and best practices. She is a frequent speaker on I-9 and labor certification application compliance issues. Alberta holds a bachelor’s degree in political science from The Pennsylvania State University, a master’s degree in his-tory from the University of Massachusetts, and an MBA degree in management from New York University.

like when your paralegal comes up with a strategy that saves the day or proposes a client relations idea that you never considered.

In law practice management, we talk about being both lawyer and businessperson. In terms of paralegal development, we must also balance the role of educa-tor with real-world legal/business needs. Achieving this necessary balance requires planning and the inte-gration of tools, training programs, and supervisory practices with respect to our paralegals. Training can-not be just a long-winded lecture, off-hand instruc-tion,1 or merely placing a book on fundamentals in the paralegal’s hands. Training teaches how and when to use the appropriate tools, and how to conform the tools to match the limits of the paralegal role. Tools like templates, checklists, and best practices models are key training and business efficiency aids, and they assist attorney supervision by facilitating review of both work product and conduct.

TRAINING: AN ONGOING PROCESS The verb “train” is defined in Webster’s Diction-

ary as “to direct the growth of (a plant) by bending, pruning and tying … to form by instruction, disci-pline, or drill … to teach so as to make fit, qualified or proficient … to make prepared for a test of skill …” Training is perhaps the most important thing you can do to ensure that your paralegals are properly ful-filling their role. One need not resort to bending, pruning, or tying to train paralegals, but rather one should teach to make proficient. Training consists of three basic elements: explain, practice, and review. Training can be complex and formal education, or it can be as simple as correcting an error and explaining what the correct answer/process/procedure is and why. Feedback is training and also serves to demon-strate your support of the importance of the role of the paralegal in your practice. Training should not end after the paralegal’s first week. It must be an on-going

1 Bear in mind that no two immigration cases are exactly alike, and your paralegals may have a very different take than you do on instructions like “It’s a straightforward case” or “It’s similar to the other case.”

2 IMMIGRATION & NATIONALITY LAW HANDBOOK, 2008–09

process throughout the paralegal’s career with the firm.

Paralegals joining a practice need training in three basic areas: immigration law and procedures, which includes ethics; computer applications and tools used by the practice; and general training on how to function within the office. Following are some suggestions that can be implemented in a prac-tice of any size. Immigration Law and Procedures Orientation and Overview

It is essential to provide the new paralegal with an overview of the law and procedures so they de-velop an understanding of the forest before dealing with the trees. If they understand the context within which cases are prepared, they will have a far better comprehension of what will be required of them. This overview, or “Immigration 101,” can be pro-vided in one to two hours, one-on-one, or it can be conducted seminar style. The overview should in-clude how the law, regulations, and other legal au-thority interrelate; the role of the federal agencies; basic immigration concepts; and a summary of the nonimmigrant and immigrant visa categories your practice deals with. Related Tools Consider using beginner continuing legal educa-

tion materials as a reference as you develop your orientation overview, rather than creating your training program and overview from scratch. This can eliminate gaps in training, starting with a proper overview, and focus the initial training on the basics.

At a minimum, have a checklist for your verbal overview.

See Appendix A for sample overview tools and training schedules.

Training on Specific Cases Once you have presented a general overview,

you can begin to instruct your paralegal on how to prepare a particular case type (e.g., an L-1A visa petition). The authors recommend assigning the paralegal a hypothetical case file to review and or-ganize, and then to draft a basic immigration pack-age, including client correspondence letters. Using hypothetical rather than actual cases may take longer than letting the new paralegal sink or swim, but it is less stressful, which provides a better learning envi-ronment. Once you develop hypothetical case stud-

ies and exercises, you can use them over and over again. Related Tools See Appendix B for a business immigration hy-

pothetical—a great training tool. Notice how it leaves out certain items so that the focus is on ef-ficient training and orientation, but still provides the big picture on a specific type of case. A hypo-thetical also can function as a testing tool, identi-fying potential “drop outs” early on, when the fo-cus is on developing a skill quickly and not on a client case.

See Appendix C for a naturalization template, geared toward allowing the paralegal to see the variations he or she may encounter on a “confir-mation of filing” communication to a client, and allowing for proper customization. Many times, the paralegal can just jump in and customize the letter using common sense. However, clear strat-egy memos and supervision are required to ensure the right language from a template is used, as in the case of memos regarding visa renewal instruc-tions for approved H-1B extensions, where the best place of renewal may vary based on the em-ployee’s nationality and other factors, or memos advising on advance parole/travel eligibility, where the advice may vary a great deal depending on whether the adjustment applicant would be subject to the inadmissibility bars upon departure.

Ethics and Role Training It is also crucial that you instill in your new and

existing paralegals their ethical obligations and re-sponsibility to protect client privacy and confidenti-ality, and to avoid the unauthorized practice of law. As a supervising attorney, you assume responsibility for both the work and the conduct of your paralegals and nonlawyer staff.2 Thus, paralegal training should include guidance on the kinds of activities, with an emphasis on communications, that may and may not be performed without direct attorney in-

read and signed by

ment letter clearly identifying the supervisory

volvement. Related Tools Employee handbook (see Appendix D) Confidentiality agreement,

paralegal (see Appendix E) Properly drafted retainer agreement or engage-

2 Model Code of Prof’l Responsibility EC 3-6.

STRUCTURING THE ROLE OF THE PARALEGAL: TOOLS, TRAINING, AND SUPERVISION 3

role of the attorney and the nature of the work the paralegal will perform

Template letters and e-mail communications, directing clients to contact attorney with X-type questions or issues, but paralegal with Y-type questions or issues, or Z-type documents

Periodic distribution of paralegal role/ethics arti-cles or excerpts to your staff, noting any differ-ences in your policy or practice on relevant sec-tions of the article3

Pay for and encourage your paralegals to attend AILA paralegal conferences and audio seminars. In addition to training and education, by provid-ing this development opportunity to paralegals, you recognize their accomplishments, boost mo-rale, facilitate employee retention, and give jun-ior paralegals something to look forward to.

Computer Applications You must train your paralegals in the use of all

software applications, particularly if you use special-ized case management, document management, or billing systems. Live training is the best way to show your paralegals how to use your systems the way you want them to. Sending them to a class or providing them with an on-line tutorial or a manual is better than nothing, but live training by one of your experienced staff is far more effective. You do not need a full-time trainer. You can identify those staff members who have demonstrated proficiency and ask them to mentor the new hire. This is a mo-rale builder for the trainer, and recognizes his or her experience and professionalism.4

Workflow tools and models, and case manage-ment applications such as LawLogix, INSZoom, and ImmigrationTracker, allow paralegals to pre-pare forms and supporting documents efficiently and accurately.5 Because so much time has been

3 E.g., M. Mancini, “Ethical Considerations for Immigration Attorneys Regarding Employment of Paralegals,” Immigra-tion & Nationality Law Handbook 44 (AILA 2006–07 Ed.). 4 It is critical to allow your senior paralegal the time to pre-pare for training and a reduced caseload to allow for training. Failing to reduce the trainer’s caseload can lead to shortcuts and poor mentoring relationships. 5 For a thorough review of major case management applica-tions and other technologies, see Jones, et al., “Technology for the Immigration Practitioner,” Immigration & Nationality Law Handbook 11 (AILA 2006–07 Ed.). See also AILA’s Guide to Technology and Legal Research for the Immigra-tion Practitioner (3d Ed.).

invested by software developers specific to the immigration law workflow, these applications must be seen as high-value training tools. However, at-torneys must customize applications and/or train paralegals to ignore unimportant bells and whistles (and vigilantly adhere to the important ones) in or-der to maximize the profit/efficiency potential that case management software is supposed to provide. The true value of case preparation and management tools will be determined by how solid your training program is, and whether your office culture and policy demands that everyone actively engage in using the system properly.

Do not assume that everyone on your staff knows everything about off-the-shelf applications like Word and Excel. It is important to train your new hires in how you use these in your practice. Style, formatting, use of macros, and the structure of direc-tories need to be included in applications training.

A few weeks after the paralegal has had an op-portunity to work with the various applications, have a review session. Probably as much as half of what is taught in the initial training will be forgotten, par-ticularly if it is not used immediately. Once the para-legal has had a chance to actually use the applica-tion, the follow-up training will be more meaningful and provide an efficient means for dealing with any difficulties the paralegal has encountered. Don’t try to cover too much at first. Teach the more complex use of the applications in successive trainings. Practice Pointer

Attend technology trainings yourself. Proper su-pervision is impossible unless you understand and use your case management system and other tech-nology. Every six months, offer refresher sessions on technology, especially if you have had significant turnover. Office Procedures

Your new paralegal may have recently graduated from college with no or little experience working in an office. Things as simple as how to make a file copy may have to be demonstrated. Give your new paralegal a tour of your office. Show him or her where supplies are kept and how to handle mail, overnight courier, and messenger services. Train your paralegals in proper telephone etiquette, appro-priate dress, and demeanor. You want your paralegal staff to act in a professional manner that reflects your practice.

Paralegals joining your office who already have immigration experience still need training. You need


to introduce them to the specific ways in which your office functions. Assess their knowledge and skills. They may not be as experienced as their resume suggests. You may have to do some retraining in some basic areas of immigration practice.

Finally, be a mentor. Mentoring should be an atti-tude of enabling your paralegal staff to learn and grow. Consider the qualities of the mentors in the field who inspired and taught you throughout the years. Parale-gals often are transitional individuals who may only stay on for one to three years. A good mentor will fa-cilitate quick training, maximizing profitability, while giving the time and effort to the personal and profes-sional development of his or her staff.6

SUPERVISION: A CRITICAL PART OF THE BALANCE

The use of the case processing tools and models described in this article not only provides excellent training for paralegals, but also can be of invaluable assistance in supervising the work and conduct of your paralegals. As a practical matter, attorneys delegate a wide variety of tasks to paralegals, but the attorney assumes ultimate responsibility for the delegated tasks and must continue to exercise inde-pendent professional judgment with respect to all aspects of the representation of a client.7 Addition-ally, the attorney must ensure that the paralegal has the adequate education, training, and experience to handle the task being assigned. Failure to properly delegate tasks to or to adequately supervise a parale-gal can result in serious consequences, including

6 Ask yourself whom you have mentored, and whom you currently mentor in a devoted manner. Do you make time for paralegal questions, or is it never a good time to go over cases? Are you hot and cold as a manager depending on your day or your mood? Have you written recommendation letters for paralegals who move on in the field? How many of your paralegals have stayed on for more than two years, or con-tinued on to law school? Over a period of years, have you kept up with what your former paralegals have gone on to accomplish? Paralegals have their own network system, and your current and former paralegals can be as valuable a source of information and contacts as your attorney network. 7 “Provided the lawyer maintains responsibility for the work product, a lawyer may delegate to a paralegal any task nor-mally performed by the lawyer except those tasks proscribed to a nonlawyer by statute, court rule, administrative rule or regulation, controlling authority, the applicable rule of pro-fessional conduct of the jurisdiction in which the lawyer practices, or these Guidelines.” ABA Model Guidelines for the Utilization of Paralegal Services, guideline 2 (2004).

criminal and/or civil liability, and suspension or ex-pulsion from the practice of immigration law. Obligation to Supervise

A detailed discussion of the ethical obligations of attorneys inherent in the employment of paralegals and other nonlawyer staff is beyond the purview of this article.8 At a minimum, however, all attorneys should ensure that they are familiar with their local rules of professional conduct and, specifically, the rules imposing obligations on supervising attorneys.

The American Bar Association (ABA) Model Rules of Professional Conduct (Model Rules)9 and its predecessor, the ABA Model Code of Profes-sional Responsibility (Model Code), impose clear obligations on attorneys who supervise the conduct and work of nonlawyer staff. While the Model Code encourages attorneys to delegate tasks to paralegals so that legal services can be rendered more eco-nomically and efficiently, delegation is only proper if the attorney “maintains a direct relationship with his client, supervises the delegated work, and has complete professional responsibility for the work product.”10 Rule 5.3 of the Model Rules provides that attorneys are ultimately responsible for all work performed by their paralegals and vicariously liable for any ethical misconduct by those paralegals.

Therefore, it behooves all supervising attorneys not only to be aware of what their paralegals are do-ing, but also of how their paralegals perform their duties. You must not only monitor the end product of your paralegals’ work to ensure that it is timely and competently performed and substantively cor-rect, but you also must make reasonable efforts to ensure that the paralegals’ conduct is professional and compatible with your professional obligations as an attorney. Establishing the Paralegal-Client Relationship

Shortly after you meet with or confer with a pro-spective client, you should formalize the attorney-client relationship with a retainer agreement or en-

8 For two recent, detailed articles on the subject, see J. Che-hrazi et al., “Why ‘Walk the Line’? Effective, Efficient, and Ethical Practices for Immigration Paralegals,” Immigration & Nationality Law Handbook 67 (AILA 2006-07 Ed.), and M. Mancini, supra note 3. 9 The Model Rules were adopted by the ABA House of Delegates in 1983 and were revised in 2002. They serve as models for the ethics rules of most states. 10 Model Code of Prof’l Responsibility, EC 3-6.


gagement letter. This important document sets forth the ground rules for the relationship between the client and you and your staff. At a minimum, it de-scribes the legal services to be provided and the fees for those services. However, it also provides an op-portunity for you to inform the client that paralegals will work on the client’s case, to describe the nature of the work the paralegals will perform, and to iden-tify and establish the role of the paralegals in provid-ing legal services. Additionally, it is an opportunity to communicate to both the client and the paralegal the expectation that all client confidences and secrets will be preserved and that you will take reasonable measures to prevent conflicts of interest resulting from a paralegal’s past or concurrent employment, relationships, or interests.11 The retainer agreement, therefore, is an important opportunity for you to in-form the client of your supervisory responsibility for the paralegals’ work and conduct and also to rein-force the paralegal’s understanding of his or her role. A copy of the retainer agreement or engage-ment letter should be in the client file and provided to the paralegal or available for the paralegal’s re-view to ensure he or she is aware of the nature of the relationship with the client. Case Preparation and Filing

You must diligently review all work before it is sent to the client or filed with the appropriate gov-ernment agency. Not only must you ensure that the work product of your paralegal is well prepared and professionally presented, but you must ensure that the information contained therein is accurate and has a basis in law or fact. For example, if a client pro-vides information about his or her employment his-tory or immigration history that is material to the immigration benefit they are seeking, you are re-sponsible for ensuring that your paralegal accurately and truthfully presents this information in the appli-cation or petition. The consequences if you fail to do so can be severe. Section 274C(a)(5) of the Immi-gration and Nationality Act (INA) provides criminal penalties for any person who prepares or files an application for benefits or any document “with knowledge or in reckless disregard of the fact that such application or document was falsely made.” The definition of “falsely made” is statutorily broad and encompasses the preparation or provision of an application or document with knowledge or in reck-less disregard of the fact that the application or

11 Model Rules of Prof’l Conduct R. 1.6, 1.7.

document contains a false, fictitious, or fraudulent statement or material representation, has no basis in law or fact, or otherwise fails to state a fact that is material to the purpose for which it was submitted.12 Access and reference to the client’s information and documents is critical to your ability to review forms and documents before they are sent to the client, and again before the case is filed, to ensure that the in-formation contained therein is accurate and provides a lawful basis for the benefit sought. You should reference these materials when reviewing petitions and applications before sending them to the client for signature and before filing with the government. Related Tools Intake questionnaires and document checklists

can be completed by the client to obtain all rele-vant personal, employment, and family informa-tion, as well as a basic immigration history. These can be provided to the client in person at an initial consultation, sent to the client as e-mail attachments, or completed through an Internet-based case management application. The com-pleted intake forms are a valuable reference source for the reviewing attorney.

A prefiling review checklist, like the sample at Appendix F, which requires the attorney to ac-knowledge that all form fields are completed, all forms are signed and dated as required, properly made-out, signed checks for all correct fees are enclosed, correct number of copies are enclosed, and the correct filing address is used, can go a long way to ensure that all outgoing work product meets the standard imposed by INA §274C(a)(5).

Paralegal Communications with Clients and Others

Immigration paralegals often function as a liaison between the attorney, the client, and various gov-ernment agencies. A well-trained and experienced immigration paralegal usually has frequent and regu-lar contact with clients and the government and a high level of independence or autonomy in the per-formance of his or her duties. Good immigration paralegals often build a rapport with the client, the company contact or human resources person, or government contacts with whom they regularly communicate via e-mail or telephone. Because of this relationship, clients may raise legal questions or issues in their communications with paralegals, or

12 INA §274C(f).


seek advice on case strategy. The use of template e-mail communications and adherence to the prac-tice of copying an attorney on substantive e-mails with clients can keep the paralegal from inadver-tently giving legal advice.13 Paralegals always should take care to communicate that any legal ad-vice provided comes from the attorney. You should instruct your paralegal to copy you on all substantive client e-mail communications so you can be aware if your paralegal directly or inadvertently provides le-gal advice. If you have any concerns, you can join the communications and affirm or clarify the infor-mation or advice. Case Monitoring Practices

Every immigration attorney’s nightmare involves overlooking the expiration date of a client’s nonim-migrant status, missing the filing date for an appeal or response to a request for evidence, or attempting to file a PERM application on the 181st day after recruitment began. We all worry about how to keep up with all of the expiration dates, time lines, and time periods, and most of us task our paralegals with monitoring these important dates. Case monitoring is one of the most valuable tasks immigration para-legals can perform, but you must take steps to ensure that they have the proper tools and training to ac-complish this adequately. Related Tools Case management software is the ideal means by

which to handle this function, but you must en-sure all important dates are entered, set reminder notifications at appropriate intervals to alert you or your paralegals of important dates, and calen-dar in periodic audits of expirations.

If your practice is smaller and you choose not to use a software management system, you must en-sure that your office “tickler” system adequately tracks expiration dates and that you have prac-tices in place to assist your paralegal in monitor-ing the system.

13 Paralegals must disclose their status as such. Model Code of Professional Ethics and Responsibility and Guidelines for Enforcement, EC 1.7(a)–(c) (The National Federation of Paralegal Associations, Inc.); Code of Ethics and Profes-sional Responsibility, canon 5 (National Association of Le-gal Assistants, Inc.).

Staff meetings or one-on-one meetings to review case status and expiration date reports should be a regular office practice.

See Appendix G for a checklist of quality control concepts and methods.

CONCLUSION Like developing your law practice, structuring

the paralegal role, and developing and maintaining the necessary tools, training, and supervi-sory/management skills and aids, cannot be done overnight. It is an ongoing process. The continuous updating of these tools, regular evaluation of your training programs and results, and objective self-evaluation of your skills as business manager, attor-ney, and teacher over time will lead to success and help you to find the balance between these roles.


APPENDIX A SAMPLE TRAINING SCHEDULE

Introduction to the firm Welcome! Coffee and introductions Human resources (I-9 forms; employee hand-

book, benefits, etc.) Set up desk, list of passwords, employee ID, keys

Meeting with your supervising attorney Open-door policy Outline of training schedule Attorney discussion: Confidentiality Attorney discussion: What is legal advice?

Meeting with Senior Paralegal A: Overview of approaching client communications

– When you first get a file; folders and organi-zation

– Attorney review of e-mails, letters, and any client communications before sending

– Copy attorneys or supervising paralegal on communications

– Copies of communications to file – Filing system/folders – Senior paralegal discussion: Confidentiality – Senior paralegal discussion: What is legal

advice? Frequently Used Programs:

– Central directory and network concepts – E-mail/calendar (e.g., Outlook) – Calendar – Word processing (e.g., Word, WordPerfect) – Browser (e.g., Internet Explorer, Firefox) – Case management (e.g., LawLogix) – Time and billing (e.g., Timeslips)

Time and Billing – Keeping time each day; entering time into

software program (e.g., Timeslips) each time you perform a task, and in any event, by end of day

– Each day’s entries for one client should be combined for that client.

– Conversion chart (parts of an hour) – When to charge to firm or general

– Training time: if it takes longer than you think it should for one case, record your real time and we will adjust bill later (do not worry)

LUNCH Meeting with Paralegal B Case management software (e.g., LawLogix)

training (in person; one hour max) – The dual purposes (1) creating forms and

(2) tracking cases on a daily, monthly, and annual basis

– Case management Intake of a case, drafting reminders, case

notes Creating forms Using system to communicate what has been

done on the case, and what remains to be done; update it so that if the case was trans-ferred from you to another paralegal, or a client called for an immediate status update, you would be able to provide the client with the most current information possible.

Failing to follow rules can result in mal-practice.

– Plan for future trainings, etc. Working the first case

Meet with attorney to discuss case strategies and ask any questions, etc. Meeting with paralegal – Reviewing a family-based adjustment of

status case file – Working with prototypes and reviewing

workflow for a family-based case (use ad-justment of status binder)

– Preparing the case and forms Reading (if time left over) – Chapter 12 of Immigration Procedures Hand-

book (on family-based adjustments)


APPENDIX B SAMPLE BUSINESS

IMMIGRATION HYPOTHETICAL ABCD Ltd. (ABCD) is a British company head-

quartered in London that designs, engineers, and manufactures engine components for high-performance automobiles. ABCD has set up a U.S. subsidiary, ABCD USA, and established engineer-ing operations in Los Angeles and Wilmington, NC and a sales office in Los Angeles. ABCD USA has been operating for more than one year and its opera-tions have exceeded expectations.

Due to its increased business, ABCD has an ur-gent need to expand its U.S. workforce. ABCD has decided to hire a new employee to direct the U.S. sales and marketing efforts. ABCD recently hired John Walker, a British citizen who has a degree in business, to work out of the Los Angeles office as sales and marketing manager to direct and oversee ABCD USA’s sales and marketing staff. Mr. Walker has completed his training at ABCD and is now ready to come to the U.S. to take up the position in Los Angeles. ABCD needs Mr. Walker in the U.S. as soon as possible.

ABCD has hired us to handle Mr. Walker’s transfer to ABCD USA. We have provided ABCD with our employer intake questionnaire and Mr. Walker with our employee intake questionnaire. You have been given the ABCD Ltd. immigration case file, which contains the completed questionnaires, company in-formation about ABCD and ABCD USA, Mr. Walker’s curriculum vitae, his educational credentials, and a copy of the biographical page of his passport.

You will use this information to prepare a draft H-1B package for John Walker. You must enter the in-formation into[software application or case manage-ment system] under “Training Module” and prepare the forms for this case. You will also prepare the sup-porting documents and correspondence for this case using the templates in “Docs/Toolbox/Training Case/H-1B.”

APPENDIX C CASE-SPECIFIC PROTOTYPE LETTER

[Date] [Client name & address] Re: Confirmation of Filing Naturalization Application (U.S. Citizenship) Dear Mr./Ms. Client:

Please find enclosed a copy of the Naturalization Application that we filed on your behalf on July 24, 2007. Congratulations on taking this step toward becoming a U.S. citizen. Please safeguard your copy of the application, and bring it with you on the day of your naturalization interview (in case the USCIS officer has any ques-tions). We strongly recommend that you bring updated in-formation regarding your [any missing documents, e.g., if filed taxes late and OK to file N-400 per at-torney, you will tell client here to remember to bring that info with him or her to interview] Overview of the Application Process In the next one to three months, USCIS should issue an N-400 receipt notice for your case. We will send the receipt notice to you. It will have a receipt num-ber that you can use to follow the status of your case online. Under current USCIS procedures, a few weeks, and sometimes several months, after the receipt notice is issued, an appointment notice for fingerprint-ing/biometrics will be issued. We will send you the notice with instructions. Over the next 6 to 24 months, USCIS should sched-ule you for a naturalization interview. You will be tested on English language (oral and written) and U.S. history/civics. Please review carefully the ques-tions we sent you previously, and try to remain cur-rent regarding local information (e.g., mayoral or gubernatorial elections). [If Spanish exemption or elderly, refer to tem-plate language re diff type of exam] If the interview is successful, you may be given the oath of allegiance and sworn in as a U.S. citizen on the same day. If the USCIS workload is too heavy, you will be scheduled for this ceremony on a differ-ent day. Sometimes USCIS requests additional evidence or information regarding a case, or there are adminis-trative delays in processing. We can help resolve these issues if and when they arise. We will keep you informed regarding your case. Likewise, we ask that you contact us immediately and send us copies of all correspondence that you receive from USCIS. Sometimes USCIS fails to no-tify attorneys of important information. Finally, if you need to travel internationally for an extended period of time, your U.S. address changes, or you are cited for a traffic or any other


offense while your application is pending, please contact us as soon as possible. [Check file for client if has teenage kids who are LPRs to remind re auto citz] If you have any questions, please contact us by phone, fax, or e-mail at ____________. With kind regards, I am Respectfully yours, [Attorney name] [Attorney initials/Paralegal initials] Enclosures

APPENDIX D SAMPLE EMPLOYEE HANDBOOK

TABLE OF CONTENTS14 Introduction and Overview

Purpose Equal Employment/Discrimination-Free Work-place

Equal Employment Opportunity Guidelines Anti-Harassment Policy Sexual Harassment Policy Discrimination/Harassment Complaint Procedure

Employment Policies Employment on an At-Will Basis Business Hours Payroll Classifications Emergency Closings/Late Openings Holidays Mileage/Expense Reimbursement Lunch Outside Employment Pay Periods Smoking Policy Jury Duty Personnel Records Problem Resolution Performance Evaluations Drug-Free Workplace

14 Sample courtesy of Tonia Furniss-Roe of McKinney & Justice, PA.

Responding to Customer Inquiries & Problems Inspection of Company Property Network and Electronic Resources Confidential and Proprietary Information Rules of Conduct

Insurance and Benefits Summary Vacation Health and Dental Insurance Simple IRA, 401 K or similar

Acknowledgement of Receipt of Employee Handbook

APPENDIX E SAMPLE CONFIDENTIALITY

AGREEMENT15 The legal profession is governed by a strict code of ethics. An area of specific concern is keeping all client information confidential. All employees must use extreme caution to ensure that client information in our possession does not become available to unauthorized third parties. To maintain all client information in strict confidence, avoid: Discussing client affairs with a third party unless

the client authorizes such communication. Note oral authorizations in a memo and place it in the client’s file.

Disclosing confidential information to unauthor-ized client personnel.

Discussing client affairs in public places. Talking unnecessarily about client affairs any-

where, including in our own offices or homes. Employees who violate these rules will be subject to disciplinary measures, up to and including discharge. I understand and agree to abide by the above policies. ________________________________________ Employee Signature, Date

15 Courtesy of Gerard M. Chapman of Chapman Law Firm, in Greensboro, NC.


APPENDIX F-1 PEER REVIEW FILING CHECKLIST

Case type: _______________________________ Petitioner/Applicant: _______________________ Beneficiary: _______________________________ To be completed by peer-reviewer:

All fields completed in all forms? All forms signed and dated by employer? All forms signed and dated by attorney? Correct filing fee? Premium processing fee? Fraud detection fee? Check signed? Correct number of copies for USCIS? Correct filing address on FedEx form? Return FedEx mailer (if premium)?

To be completed by Case Manager: Number of copies needed:_______________ Method of delivery:

Overnight 2nd day Send file copies to client by FedEx:

Overnight 2nd day Case Prepared by ____________ Date _________ Mailing Reviewed by _________ Date _________ To be completed by Admin Staff:

File copy sent to company ______________ (date and initial)

File copy sent to foreign national ______________ (date and initial)

APPENDIX F-2 I-130 PETITION REVIEW CHECKLIST16

Form G-28, Notice of attorney rep I-693 Medical examination (Sealed) Color photographs of sponsor & alien Cover letter with check attached Form I-130 or approval letter Filing Fee for I-130 of $___

16 Courtesy of McKinney & Justice, of Greensboro, NC.

Form I-485 Filing Fee for I-485 of $___

Form Supp. A to I-485 (for illegal entry only $1,000 fee) Filing Fee for I-765 of $___

Form G-325A, Biographic info 4 pages for peti-tioner and 4 pages for beneficiary Fingerprinting Fee of $____ Filing fee for I-131 of $____

Evidence of U.S. citizenship or LPR (birth cer-tificate, Nat. Cert., LPR Card, etc.) Filing fee for 245(i) of $____

Alien birth certificate (plus translation) Filing Fee for I-102 of $____

Evidence of family relationship (usually marriage certificate)

Divorce/Death record for past marriages Copy of last I-94 (if applicable) Copy of last visa (if applicable) I-864, Affidavit of support for sponsor Sponsor’s tax records for the past three years and evidence of current employment (job letter show-ing date of hire, position, rate of pay, and whether job is temporary or permanent; pay stubs)

I-864 if joint sponsor (if applicable)(joint sponsor is needed only if sponsor does not make enough money or is short the three-year tax requirement)

Contract between sponsor and household mem-ber (this form is used if someone else in the same house, including the alien, can provide tax re-turns to make up for the sponsor not having enough money)

I-765 Application for employment I-131 Application for travel

APPENDIX G SUGGESTED METHODS FOR IMPROVING

QUALITY CONTROL, SUPERVISION, AND EFFICIENCY

1. Map out your stages of review for drafts and finalizations. Then, evaluate whether any stages of review could or should be combined, or sepa-rated, to improve quality control and efficiency. a. Example 1: Are paralegals responsible for

bringing drafts to your desk in final form, including confirming that not only are cli-ents’ names spelled correctly, but that their


biographical information is consistent with what is on the birth and marriage certificate, etc.? i. If so, at what stage do you look at “raw”

information to confirm that this is being done consistently? It’s easy for a client to find a typo, but hard for a client to re-alize that his birth certificate does not match up to the name on his passport and transcripts.

ii. Possible fix: Have paralegals rubber-band draft cases on top of hard copy files for review, so you can spot check from time to time; also helps you see whether files are well organized, and to look at the case as a whole.

b. If you work for a small firm and do not have time or staff to map out stages of review for each type of case, focus your efforts on one type of case that you do regularly. i. Establishing a framework for one case

will set the pace for future cases. ii. If you proceed without a core frame-

work, your office may never find the time or resources to convert to a proper framework.

2. Quality control for client provided informa-tion. If clients are responsible for entering their information into a web-based case management system like LawLogix, who performs quality control on that information? Clients often enter their own information incorrectly. Are parale-gals fact-checking, and then attorneys perform-ing a second-stage review? a. If a client told you at intake that she was

working as a hairdresser on her B-2 visa, who will make sure that the G-325 for the marriage-based adjustment contains her un-authorized self-employment history?

b. At what stage is the intake information re-ceived from clients compared against other client-provided information?

c. What is the most efficient way to do this in your office, based on how you perform in-take, how cases are prepared, and your re-view and supervision system?

3. Templates and transmittal letters to clients a. Does each template letter for sending client

drafts actually specify that drafts should be reviewed by the client? It is easy to send

forms for signature, without making it clear to the client what is a draft and what is a fi-nalization.

b. Templates are key to quality control. Who is in charge of updating yours? Who reviews and approves new templates?

4. Use visual aids to plan quality control and supervision. Prepare a workflow chart or dia-gram so that you and your staff can visualize better the various stages of review, supervision, and quality control. It helps to have the work-flow diagram during initial training sessions, when outlining paralegal responsibilities. When there is a failure in your system, go back to the workflow chart and see at what level/stage the change should be made.

5. Plan financially for quality control and su-pervision. When revising and updating your fee schedule each quarter, take it as an opportunity to consider the levels of review and current number of transmittals and submissions that go into each type of case. a. If the National Visa Center adds a stage to

consular processing cases, have you in-creased the number of times a case is re-viewed? Have you adjusted your fees ac-cordingly for the increased expense of an additional transmittal, and the time taken to review an additional stage?

b. Has e-filing become available on a new type of petition, such that you need to adjust your fees and also change your workflow for quality control/supervision?

6. Delegate appropriately. It is easy to delegate managerial functions ad hoc. Set aside time to take proper law practice management decisions. If a new associate is ready to start signing off on cases and managing paralegals, try to articulate (for your and his or her benefit) the quality con-trol and supervision methods you employ so that you both are consistent internally.

7. Paralegal training. What systems do you have in place to help paralegals be consistent in terms of procedure? Monthly meetings? Telephonic or monthly continuing legal education courses? Do you do on-the-job training (e.g., discussing the rules for affidavits of support while working on a specific case with a paralegal)? Make a check-list for your law practice regarding training. Ask for paralegal input. Consider time, costs, and benefits of each training method.


8. Quality control for service providers. Con-sider your approach toward monitoring quality control for credentials evaluators, translators, experts, etc. How do quality and customer ser-vice issues identified by paralegals and staff reach you?

9. Evaluations of paralegals, staff, and self. Con-sider your performance evaluations as an oppor-tunity to identify needs in your law practice re-garding supervision and quality control. If your staff (or you) score low on organization, what procedures can you implement to improve or-ganizational methods over time?

Stay focused. There are only so many hours in a day. Limit the number of changes you make in your law practice so that they can be implemented, evalu-ated, and seen as part of the firm culture over time.

UTILIZING IMMIGRATION PARAPROFESSIONALS: THE ETHICAL CONSIDERATIONS

by Mark J. Newman and Russell C. Ford*

INTRODUCTION To meet their tremendous responsibilities, mod-

ern immigration attorneys heavily rely on non-attorney assistants. Appropriate utilization of these paraprofessionals carries the responsibility of super-vising the delivery of competent legal services, pre-serving client confidentiality and deterring the unau-thorized practice of law.

15

Reproduced, with permission, from Ethics in a Brave New World: Professional Responsibility, Personal Ac-countability, and Risk Management for Immigration Prac-titioners. Copyright © 2004, American Immigration Law-yers Association. * Mark J. Newman is the immigration law partner at Troutman Sanders. Newman’s practice ranges from the transfer of international business executives to the defense of corporations charged with employer sanction violations. He continues his practice in immigration litigation and appellate work before various administrative agencies and in the fed-eral courts. Newman practiced immigration and trial law in Florida for 10 years before moving to Atlanta and joining Troutman Sanders in 1989. He served as lead counsel in the federal class action proceedings to acquire lawful permanent residence for the more than 100,000 Mariel Cubans. New-man served as chairman of AILA’s Atlanta District Direc-tor’s Liaison Committee and co-chaired the ABA/Prentice Hall Seminar on the 1990 Immigration Act in Atlanta. He co-authored Immigration Law and Practice in Florida. He received his undergraduate degree in 1976 from Princeton University and his law degree in 1979 from the University of Miami School of Law.

Russell C. Ford is an associate in the Immigration law practice at Troutman Sanders LLP. Prior to joining the firm in January 2004, Ford practiced Immigration Law in New York and Atlanta for four years. Ford’s practice focuses on employment-based immigration for multinational corpora-tions, universities and colleges, and sports organizations. He works with companies to obtain work authorization on be-half of graduates, trainees, new hires, and transferees. He also advises companies on employment-based immigration issues and employment documentation issues. Ford is a member of AILA and has presented at several seminars re-garding immigration issues, problems, and techniques. Ford received his undergraduate degree in 1995 from Stonehill College, a master’s degree in 1996 from Boston University, and his law degree in 1999 from Tulane University School of Law.

Immigration paralegals come from a variety of backgrounds and are now used in innumerable roles. They may have been experienced secretaries, have paralegal certificates, have baccalaureate or law de-grees from the United States or abroad, some are licensed attorneys in foreign jurisdictions, have lan-guage and cultural affinities, or are former INS/DHS, Department of Labor, or State Depart-ment employees. These key support personnel can exert an immense influence over clients and shoul-der substantial day-to-day responsibilities for cases. Immigration practices tend to use paralegals to a greater extent than attorneys in many other practice areas. This ranges from general practitioners, who—not limiting their practice to immigration rely to a great extent on their paralegals—to immigration at-torneys utilizing immigration dedicated paralegals, to in-house paralegals at Fortune 100 companies.

This article surveys the regulatory landscape and addresses some of the common pitfalls that an im-migration practitioner encounters when utilizing paraprofessionals.

DEFINITION OF TERMS

Legal Assistant/Paralegal—General Definition

American Bar Association (ABA) Definition: A legal assistant or paralegal is a person, qualified through education, training or work experience, who is em-ployed or retained by a lawyer, law office, corpora-tion, governmental agency, or other entity and who performs specifically delegated substantive legal work for which the lawyer is responsible.1

The National Association of Legal Assistants (NALA2) Definition: NALA does not differentiate between “legal assistant” and “paralegal” and de-

1 Article 21.12 of the ABA By-Laws (as amended, August 1997). 2 NALA is a leading professional association for legal assis-tants and paralegals and provides continuing education, pro-fessional development programs, and voluntary certification programs. Information on NALA can be found at www.nala.org.

16 ETHICS IN A BRAVE NEW WORLD

fines both as a distinguishable group of persons who assist attorneys in the delivery of legal services. Through formal education, training and experience, legal assistants have knowledge and expertise re-garding the legal system and substantive and proce-dural law which qualify them to do work of a legal nature under the supervision of an attorney.

The National Federation of Paralegal Associations, Inc. (NFPA3) Definition: A paralegal is a person qualified through education, training or work ex-perience to perform substantive legal work that re-quires knowledge of legal concepts and is customar-ily, but not exclusively, performed by a lawyer. This person may be retained or employed by a lawyer, law office, governmental agency or other entity or may be authorized by administrative, statutory or court authority to perform this work. NFPA does not differentiate between “paralegal” or “legal assis-tant.”

Legal Assistant/Paralegal—State-by-State (non-inclusive) Definition Survey:

Arizona: through case law, has adopted the ABA definition and utilizes the terms, paralegal, legal as-sistant, and law clerk interchangeably4;

California: California Business & Professions Code Secs. 6450, et seq. defines who can use the term “paralegal,” education and experience require-ments, and mandatory ethical requirements. “‘Para-legal’ means a person who either contracts with or is employed by an attorney, law firm, corporation, governmental agency, or other entity and who per-forms substantial legal work under the direction and supervision of an active member of the State Bar of California, as defined in Section 6060, an attorney practicing law in the federal courts of this state, that has been specifically delegated by the attorney to him or her.”

Colorado: Legal Assistants (and/or paralegals) are a distinguishable group of persons who assist

3 NFPA is a nonprofit, professional organization comprising state and local paralegal associations throughout the United States and Canada. NFPA affirms the paralegal profession as an independent, self-directed profession which supports in-creased quality, efficiency, and accessibility in the delivery of legal services. NFPA promotes the growth, development and recognition of the profession as an integral partner in the delivery of legal services. Information on NFPA can be found at www.paralegals.org. 4 See Continental Townhomes East Unit One Association v. Brockbank, 152 Ariz. 537, 545 n. 9 (1986).

attorneys in the delivery of legal services. Through education, training and experience, legal assistants have knowledge and expertise regarding the legal system and substantive and procedural law which will qualify them to do work of a legal nature under the direction and supervision of a licensed attorney.

Connecticut: Legal assistants or paralegals are persons employed by law offices who are not admit-ted to practice law but a major part of whose work is performing tasks commonly performed by lawyers and who are under the general supervision and con-trol of lawyers. Paralegals may be salaried employ-ees or independent contractors such as freelance paralegals utilized on occasion by lawyers for spe-cial assignments.5

Florida: Legal assistant means a person, who, under the supervision and direction of a licensed attorney, engages in legal research, and case devel-opment and planning in relation to modifications, initial proceedings, services, processes, or applica-tions, or who prepares or interprets legal documents or selects, compiles, and uses technical information from references such as digests, encyclopedias, or practice manual and analyzes and follows procedural problems that involve independent decisions.6

Illinois: “Paralegal” means a person who is quali-fied through education, training, or work experience and is employed by a lawyer, law office, govern-mental agency, or other entity to work under the di-rection of an attorney in a capacity that involves the performance of substantive legal work that usually requires a sufficient knowledge of legal concepts and would be performed by the attorney in the ab-sence of the paralegal.”7

Indiana: State Supreme Court has enacted the Rules of Professional Conduct: Guidelines on the Use of Paralegals states that all lawyers must utilize para-legals according to certain guidelines pursuant to an attorney’s duty to supervise in Rule 5.3. The Indiana Code at Section 1-1-4.6 defines “paralegal” as a “per-son who is (1) qualified through education, training, or work experience; and (2) employed by a lawyer, law office, governmental agency, or other entity, to work under the direction of an attorney in a capacity that involves the performance of substantive legal

5 Special Inter-Committee Group to Study the Role of Para-legals, December 1985, Connecticut State Bar Association. 6 Florida Statutes Annotated Section 57.104. 7 Illinois State Statutes, 5 ILCS 70/1.35.

UTILIZING IMMIGRATION PARAPROFESSIONALS: THE ETHICAL CONSIDERATIONS 17

work that usually requires a sufficient knowledge of legal concepts and would be performed by the attor-ney in the absence of the paralegal.”

Iowa: The Iowa legislature adopted a detailed set of guidelines outlining when an attorney could dele-gate to a non-lawyer, but did not specifically define paralegal, legal assistant or otherwise.

Kentucky: The Kentucky State Supreme Court in Rule 3.700 defines “paralegals” as persons under the supervision and direction of a licensed lawyer, who may apply knowledge of law and legal procedures in rendering direct assistance to lawyers engaged in legal research, preparing or interpreting legal docu-ments and writing detailed procedures for practicing in certain fields of law; select, compile and use tech-nical information from such references as digests, encyclopedias or practice manuals, and analyze and follow procedural problems that involve independ-ent decisions.

Maine: “Paralegal” or “legal assistant” means a person who is qualified by education, training or work experience, who is employed or retained by an attorney, law office, corporation, governmental agency or other entity and who performs specifically delegated substantive legal work for which an attor-ney is responsible.8

Michigan: A “paralegal” is any person currently employed or retained by a lawyer, law office, gov-ernmental agency, or other entity engaged in the practice of law, in a capacity or function which in-volves the performance under the direction and su-pervision of an attorney of specifically delegated substantive legal work, which work, for the most part, requires a sufficient knowledge of legal con-cepts such that absent that legal assistant, the attor-ney would perform the tasks and which is not pri-marily clerical or secretarial in nature.9

Missouri: The Missouri State Bar adopted guide-lines for using paralegals and defined “paralegal” as a person qualified through education, training or work experience, employed or retained by an attor-ney, law firm, government agency, corporation, or other entity to perform substantive and procedural legal work under the ultimate direction and supervi-sion of an attorney or as authorized by administra-tive, statutory, or court authority.

8 Maine Revised Statutes Annotated, Title 4, Section 921.

9 Michigan State Bar, Bylaws, Article 1.

Montana: “Paralegal” or “legal assistant” means a person qualified through education, training, or work experience to perform substantive legal work that requires knowledge of legal concepts and that is customarily but not exclusively performed by a law-yer and who may be retained or employed by one or more lawyers or law offices, or pursuant to adminis-trative, statutory, or court authority to perform this work.10

Nevada: Nevada State Bar Association, Division of Legal Assistants, defines a legal assistant (or paralegal) as a person, qualified through education, training or work experience, who is employed or retained by a lawyer, law office, governmental agency, or other entity, in a capacity or function which involves the performance, under the ultimate direction and supervision of an attorney, of specifi-cally delegated substantive legal work which work for the most part, requires a sufficient knowledge of legal concepts that, absent such assistant, the attor-ney would perform the task.

New Hampshire: State Supreme Court issued Administrative Rule 3, which defines “paralegals” as a person not admitted to the practice of law in N.H. who is an employee of or an assistant to an active member of the N.H. Bar, a partnership com-prised of active members of the N.H. Bar, a profes-sional association within the meaning of RSA Chap-ter 294-A, and, who, under the control and supervi-sion of an active member of the N.H. Bar renders services related to but not constituting the practice of law.

New Mexico: State Supreme Court issued a defi-nition of “legal assistant” as a person not admitted to the practice of law who provides assistance to a li-censed lawyer and for whose work that licensed lawyer is ultimately responsible.

North Carolina: State Bar Association adopted requirements for “legal assistants” to be eligible to join the “Legal Assistant Section.” These require-ments defined a “legal assistant” as a person, quali-fied through education and work experience, who is employed as an employee and not as an independent contractor, on a full-time basis (at least 800 hours), by either one attorney, a single law firm, one gov-ernmental agency, or one other business entity in a capacity or function which involves the performance of a substantial amount of specifically delegated substantive legal work, which work, for the most

10 Montana Code 37-60-101.


part, requires a sufficient knowledge of legal con-cepts that, absent such person doing the work, the attorney would perform the task; the performance of legal work to be under the actual direction and su-pervision of an attorney who is licensed to practice law in the state of N.C. and who has ultimate re-sponsibility and accountability for such person’s work—the supervising attorney to be the attorney who employs such person.

[Editor’s Note: According to the North Carolina Academy of Trial Lawyers, on July 16, 2004, statu-tory changes to NCGS 84-23 and 84-37 were en-acted. If signed by the Governor, the changes be-come effective on October 1, 2004. The statutes au-thorize the North Carolina State Bar to regulate NC certified paralegals and seek injunctive relief for the improper use of the titles.

On July 16, 2004, the North Carolina State Bar Council voted to approve the Plan for Paralegal Cer-tification contingent upon the Governor signing it. Once signed, the Plan for Paralegal Certification will be sent to the NC Supreme Court for approval.

The NC State Bar Council anticipates appointing the initial Board of Paralegal Certification during its October Council meeting.]

North Dakota: State Supreme Court adopted Rule 1.5, which defines “legal assistant (or parale-gal)” as a person who assists lawyers in the delivery of legal services, and who through formal education, training, or experience, has knowledge and expertise regarding the legal system and substantive and pro-cedural law which qualifies the person to do work of a legal nature under the direct supervision of a li-censed lawyer.11

Oklahoma: State Bar Association defines “legal assistant” or “paralegal” as a person qualified by education, training or work experience who is em-ployed or retained by a lawyer, law office, corpora-tion, governmental agency or other entity who per-forms specifically delegated substantive legal work for which a lawyer is responsible, and absent such assistant, the lawyer would perform the task.

Rhode Island: State Supreme Court adopted Rule 5.5, which sets guidelines for the use of “legal assis-tants” and defines these non-lawyers as one who, under the supervision of a lawyer, applies knowl-

11 North Dakota Rules of Professional Conduct, Rule 1.5.

edge of law and legal procedures rendering direct assistance to lawyers, clients and courts.12

South Dakota: State Legislature has passed sev-eral laws regarding paralegals. “Legal assistants” are a distinguishable group of persons who assist li-censed attorneys in the delivery of legal services. Through formal education, training, and experience, legal assistants have knowledge and expertise re-garding the legal system, substantive and procedural law, the ethical considerations of the legal profes-sion, and the Rules of Professional Conduct as stated in Chapters 16-18, which qualify them to do work of a legal nature under the employment and direct su-pervision of a licensed attorney.13 South Dakota also requires that legal assistants be certified by success-fully completing the Certified Legal Assistant ex-amination issued by NALA or through other means enunciated in Chapter 16-18-34.1 and 16-18-34.2, which will be discussed in further detail in Section II, Duty of Attorney to Supervise Paralegal.

Texas: State Bar issued “General Guidelines for the Utilization of the Services of Legal Assistants by Attorneys,” which defined “legal assistant” as a per-son who must work under the supervision of an at-torney and not provide legal advice or engage in the unauthorized practice of law. Legal assistants may perform delegated services so long as (1) the client understands the legal assistant is not an attorney, (2) the attorney maintains direct relationship with the client, (3) the attorney directs and supervises the legal assistant, and (4) the attorney remains profes-sionally responsible for the client and the client’s legal matters.

Virginia: State Bar Committee on the Unauthor-ized Practice of Law adopted the following defini-tion of “paralegal/legal assistant:” one who is a spe-cially trained individual who performs substantive legal work that requires a knowledge of legal con-cepts and who either works under the supervision of an attorney who assumes professional responsibility for the final work product, or works in areas where lay individuals are explicitly authorized by statute or regulation to assume certain law-related responsi-bilities.

Washington: State Court of Appeals defined “le-gal assistant” as one who is qualified through educa-tion, training, or work experience, is employed or

12 Rhode Island Rules of Professional Conduct, Rule 5.5. 13 South Dakota Rules of Professional Conduct 16-18-34.


retained by a lawyer, law office, governmental agency or other entity in a capacity or function which involves a performance under the ultimate direction and supervision of an attorney, of specifi-cally delegated legal work, which work for the most part requires a sufficient knowledge of legal con-cepts that, absent such assistant, the attorney would perform the task.14

West Virginia: State Bar Association defined “le-gal assistant” as a person, qualified through educa-tion, training, or work experience, who is employed or retained by a lawyer, law office, governmental agency, or other entity, in a capacity or function which involves the performance, under the ultimate direction and supervision of an attorney of delegated substantive legal work, which work, for the most part, requires sufficient knowledge of legal concepts that, absent such assistance, the attorney would per-form the task.

Wisconsin: State Bar Paralegal Task Force de-fined “paralegal” as a person, qualified through edu-cation and training, who supervised by a lawyer li-censed to practice law in WI, to perform substantive legal work requiring sufficient knowledge of legal concepts that, absent the paralegal, the attorney would perform the work.

Common Theme—”Under the supervision of an attorney”

Nearly all states, organizations representing law-yers and paralegals, and courts, have stated that a paralegal should not perform any substantive legal work unless that work is properly supervised by an attorney. We will discuss the attorney’s duty to su-pervise a paralegal among other ethical considera-tions that lawyers face in the employment of and reliance upon paralegals within their practice.

THE TWO MAJOR PARALEGAL ORGANIZATIONS

National Association of Legal Assistants:

Introduction NALA is a leading professional association for

legal assistants and paralegals and was incorporated in 1975. Currently, NALA has more than 18,000 members and 92 state and local affiliated associa-

14 See Absher Construction Co. v. Kent School District, 9 P.2d 1086 (1995).

tions. NALA was formed to increase the profes-sional standing of legal assistants, provide uniform-ity among the states in the utilization of legal assis-tants, and establish national standards of profes-sional competence. NALA’s contact information is 1516 S. Boston, #200, Tulsa, OK 74119, (918) 587-6828.

NALA has introduced Model Standards and Guidelines for the Utilization of Legal Assistants as “the proper utilization of legal assistants contributes to the delivery of cost-effective, high-quality legal services” and to provide an educational document to legal professionals.15

Standards Legal assistants should meet one of the following

minimum standards to demonstrate professional abilities: Successful completion of the Certified Legal As-

sistant certifying examination of NALA (dis-cussed below16);

Graduation from an ABA-approved program of study for legal assistants;

Graduation from a course of study for legal assis-tants, which is institutionally accredited but not ABA approved, and which requires not less than the equivalent of 60 semester hours of classroom study;

Graduation from a course of study for legal assis-tants other than set forth above and not less than six months of in-house training as a legal assis-tant;

A baccalaureate degree in any field plus not less than six months of in-house training as a legal as-sistant;

A minimum of three years of law-related experi-ence under the supervision of an attorney includ-ing at least six months of in-house training as a legal assistant; or

Two years of training as a legal assistant.17

15 NALA’s Model Standards and Guidelines for Utilization of Legal Assistants, Preamble. 16 The Certified Legal Assistant examination established by NALA in 1976 is a voluntary nationwide certification pro-gram for legal assistants. 17 NALA’s Model Standards and Guidelines for Utilization of Legal Assistants, Section III, Standards.


Guidelines Relating to Standards of Performance and Professional Responsibility

In general, under ABA Model Rules of Profes-sional Conduct, Rule 5.3, a legal assistant is allowed to perform any task that is properly delegated and supervised by an attorney, as long as the attorney is ultimately responsible to the client and assumes complete professional responsibility for the work product (emphasis added).18

NALA Guidelines Legal Assistants should:

Disclose their status as legal assistant at the out-set of any professional relationship;

Preserve attorney-client privilege; and Understand the attorney’s Rules of Professional

Conduct and avoid any action which would in-volve the attorney in violation of the Rules or give the appearance of professional impropri-ety.19 Legal Assistants should NOT:

Establish attorney-client relationships, set legal fees, give legal opinions or advice, or represent a client before a court, unless authorized to do so by said court; or

18 NALA’s Model Standards and Guidelines for Utilization of Legal Assistants, Section IV, Guidelines. ABA Model Rules of Professional Conduct, Rule 5.3 states “With respect to a nonlawyer employed or retained by or associated with a lawyer: (a) a partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer; (b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and (c) a lawyer shall be responsible for conduct of such a person that would be a violation of the rules of professional conduct if engaged in by a lawyer if: (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner in the law firm in which the person is employed, or has direct supervi-sory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take remedial action. 19 NALA’s Model Standards and Guidelines for Utilization of Legal Assistants, Section V, Guideline 1.

Engage in, encourage, or contribute to any act which would constitute the unauthorized practice of law.20 Legal assistants may perform services for an at-

torney in the representation of a client, provided: The services performed do not require the exer-

cise of independent professional legal judgment; The attorney maintains a direct relationship with

the client and maintains control of all client mat-ters;

The attorney supervises the legal assistant; The attorney remains professionally responsible

for all work on behalf of the client including any actions taken by the legal assistant in connection therewith; and

The services performed supplement, merge with and become the attorney’s work product.21 In supervising the legal assistant, consideration

should be given to: Designating work assignments that correspond to

the legal assistant’s abilities, knowledge, training and experience;

Educating and training the legal assistant with respect to professional responsibility, local rules and practices, and firm policies;

Monitoring the work and professional conduct of the legal assistant to ensure that the work is sub-stantively correct and timely performed;

Providing continuing education for the legal as-sistant in substantive matters through courses, in-stitutes, workshops, seminars and in-house train-ing; and

Encouraging and supporting membership and active participation in professional organiza-tions.22

Certified Legal Assistant (CLA) Certifying Examination

Facts: Currently, 11,801 legal assistants maintain a

CLA credential;

20 NALA’s Model Standards and Guidelines for Utilization of Legal Assistants, Section V, Guideline 2. 21 NALA’s Model Standards and Guidelines for Utilization of Legal Assistants, Section V, Guideline 3. 22 NALA’s Model Standards and Guidelines for Utilization of Legal Assistants, Section V, Guideline 4.


Two-day examination divided into five sections: – Communications; – Ethics; – Legal Research; – Judgment and Analytical Ability; and – Substantive Law. The examination is voluntary and is not re-

quired by any state in order to be employed as a legal assistant.

To qualify for the CLA, a candidate must meet one of the following criteria: Graduation from a legal assistant program that is:

– Approved by the ABA; – Associate degree program; – Post-baccalaureate certificate program in legal

assistant studies; – Bachelor degree program in legal studies; or – Legal assistant program which consists of a

minimum of 60 semester hours of classroom study of which 15 semester hours are substan-tive legal courses.

A bachelor degree in any field plus one year of experience as a legal assistant.

High school diploma or equivalent plus seven years of experience as a legal assistant under the supervision of a member of the Bar plus evidence of a minimum of 20 hours of continuing legal education credit within the two-year period pre-ceding the exam date.23 CLA credential is valid for five years and can be

renewed only with submission of evidence demon-strating completion of at least 50 hours of continuing legal education credit.

National Federation of Paralegal Associations Formed in 1974, the National Federation of Para-

legal Associations, Inc. (NFPA) is the largest and oldest national paralegal association. Created as a non-profit federation, NFPA is an issues-oriented, policy-driven professional association, directed by its membership. The NFPA contact information is: 2517 Eastlake Avenue East, Suite 200, Seattle, WA 98102. (206) 652-4120 or [email protected].

23 National Association of Legal Assistants Certified Legal Assistant Program – Fact Sheet, June 2003.

NFPA is comprised of local and state paralegal associations, as well as individual members. NFPA has grown from eight charter members to more than 60 associations located throughout the United States. This membership includes more than 15,000 parale-gal professionals working in traditional and non-traditional roles at law firms, corporations, govern-ment agencies, legal service agencies, and other law-related entities.

NFPA was formed to: Foster, promote and develop the profession; Monitor legislation, case law and ethics’ opinions

affecting the profession; Maintain a nationwide communications network; Advance the educational standards of the profes-

sion; and Conduct seminars, research issues and engage in

other matters relating to the profession.

Mission Statement NFPA is a nonprofit professional organization

comprised of state and local paralegal associations throughout the United States and Canada. NFPA affirms the paralegal profession as a self-directed profession which supports increased quality, effi-ciency and accessibility in the delivery of legal ser-vices. NFPA promotes growth, development and recognition of the profession as an integral partner in the delivery of legal services.24

According to the NFPA, paralegals perform the same functions as an attorney except those prohib-ited by unauthorized practice of law statutes. There-fore, NFPA is in favor of professional regulation to protect the public and a Model Code of Ethics and Professional Responsibility and Guidelines for En-forcement (adopted in 1993, revised in 1997): A paralegal shall maintain and achieve a high

level of competence through education, training and work experience to include at least 12 hours of continuing legal education every two years;25

A paralegal shall maintain a high level of per-sonal and professional integrity including main-taining client confidences and refraining from

24 National Federation of Paralegal Associations: www.paralegals.org. 25 NFPA Model Disciplinary Rules and Ethical Considera-tions, Section 1-1.1.


engaging in any activity that could be perceived as an unauthorized practice of law;26

A paralegal’s title shall be fully disclosed in all business and professional communications in-cluding business cards, brochures, directories, and promotional materials;27

Paralegals shall be subject to discipline under the Model Code.28 NFPA endorses the regulation of paralegals

through the following plan: Two-tiered licensing plan, which constitutes

mandatory regulation; Second form of regulation through certification

and/or registration; Standards for ethics; Standards for discipline including a disciplinary

process; Standards for education; Method for assessing the competency of parale-

gals; Defining “unauthorized practice of law” through

allowable tasks for paralegals in different sub-stantive subject areas.29

Paralegal Advanced Competency Exam (PACE) Instituted in 1996 by NFPA to be consistent with

two-tier licensing program discussed above. Volun-tary credentialing program that is not currently re-quired by any State to practice as a paralegal.

Tier One would test thinking and problem solv-ing skills including general legal questions. Criteria to sit for Tier One: Associate’s Degree in paralegal studies obtained

from an institutionally accredited and/or ABA-approved paralegal education program, and six years of substantive paralegal experience; or

Bachelor’s Degree and completion of a paralegal program from an institutionally accredited

26 NFPA Model Disciplinary Rules and Ethical Considera-tions, Section 1-1.2, 1-1.5, and 1-1.8. 27 NFPA Model Disciplinary Rules and Ethical Considera-tions, Section 1.1-6. 28 NFPA Model Disciplinary Rules and Ethical Considera-tions, Section 2 et seq. 29 NFPA Statement on Issues Affecting the Paralegal Profes-sion, Paralegal Regulation.

school, and three years of substantive experience as a paralegal; or

Bachelor’s Degree and completion of a paralegal program with an institutionally accredited school, and two years of substantive paralegal experi-ence; or

Four years of experience as a paralegal before 12/31/2000.30 Tier Two would test knowledge of specific legal

practice areas.

CERTIFICATION? LICENSURE? What, if anything, is required, and what, if anything, are states doing to regulate the paralegal profession?

Generally, most states “regulate” paralegals through unauthorized practice of law statutes and through the State Bar’s regulation of attorneys charged with supervising the paralegal. These gen-eral concepts will be discussed in more detail below.

Currently, no state licenses or certifies paralegals and only California has adopted educational and/or work experience requirements for individuals who wish to utilize the title “paralegal.”

The American Bar Association (ABA) has issued Model Guidelines for the Utilization of Legal Assis-tant Services designed to provide attorneys with safeguards to employing and supervising paralegals in the course of their daily duties. These Guidelines were adopted by the ABA House of Delegates in 1991 and are generally governed by Rule 5.3 of the ABA Model Rules of Professional Conduct: A lawyer is responsible for all of the professional

actions of a legal assistant performing legal assis-tant services at the lawyer’s direction and should take reasonable measures to ensure that the legal assistant’s conduct is consistent with the lawyer’s obligations under the ABA Model Rules of Pro-fessional Conduct;31

A lawyer must maintain responsibility for the work product of the legal assistant and cannot permit the legal assistant to conduct any activities

30 NFPA Statement on Issues Affecting the Paralegal Profes-sion, Paralegal Advanced Competency Exam. 31 ABA Model Guidelines for the Utilization of Legal Assis-tant Services, Guideline 1.


prohibited by statute, court rule, administrative rule or regulation, or controlling authority;32

A lawyer may not delegate to a legal assistant the ability to establish the attorney-client relation-ship, establishment of fees, or legal opinions;33

A lawyer must ensure that the legal assistant makes all parties involved in the process (client, court, etc.) aware that the legal assistant is not li-censed to practice law;34

The lawyer must ensure that the legal assistant maintains all client confidences;35

The lawyer may include a charge for the work performed by a legal assistant in charging legal services;36 and

The lawyer may not split legal fees with a legal assistant nor pay a legal assistant for the referral of legal business, nor can the legal assistant’s com-pensation be contingent, by advance agreement, upon the profitability of the lawyer’s practice.37

Should paralegals be licensed?

Issues to Consider While attorneys are licensed to practice law,

paralegals, notwithstanding the expansion of parale-gal duties, are not required to obtain a license to practice in any state.

Licensing would require all paralegals to meet minimum education and/or work experience re-quirements.

NFPA is in favor of a state determined regulation process that would benefit the public by maintaining minimum standards for the profession.

NALA supports voluntary certification and self-regulation, and opposes licensing requirements for paralegals.

32 ABA Model Guidelines for the Utilization of Legal Assis-tant Services, Guideline 2. 33 ABA Model Guidelines for the Utilization of Legal Assis-tant Services, Guideline 3. 34 ABA Model Guidelines for the Utilization of Legal Assis-tant Services, Guideline 4. 35 ABA Model Guidelines for the Utilization of Legal Assis-tant Services, Guideline 6. 36 ABA Model Guidelines for the Utilization of Legal Assis-tant Services, Guideline 7. 37 ABA Model Guidelines for the Utilization of Legal Assis-tant Services, Guideline 9.

Currently, although several states define the term in statute or State Bar Codes of Conduct, no state has mandatory licensing or certification require-ments. Only California has codified “minimum” standards that an individual must meet in order to utilize the term “paralegal.” Licensing and/or certifi-cation legislation has been discussed and debated in New Jersey, North Carolina, Wisconsin, Colorado, Utah, South Dakota, Washington, and Hawaii, but has not been passed.

California—”the leader of the pack”: California Business and Professions Code Sections 6450-6456: Defining “Paralegal” and setting industry standards:

‘Paralegal’ means a person who either contracts with or is employed by an attorney, law firm, corporation, governmental agency, or other entity and who performs substantial legal work under the direction and supervision of an active mem-ber of the State Bar of California, as defined in Section 6060, an attorney practicing law in the federal courts of this state, that has been specifi-cally delegated by the attorney to him or her.38 A paralegal shall possess one of the following:

A certificate of completion of a paralegal pro-gram approved by the ABA;

A certificate of completion of a paralegal pro-gram at, or a degree from, a postsecondary insti-tution that requires the successful completion of a minimum of 24 semester, or equivalent, units in law-related courses and that has been accredited by a national or regional accrediting organization or approved by the Bureau for Private Secondary and Vocational Education;

A baccalaureate degree or an advanced degree in any subject, a minimum of one-year of law-related experience under the supervision of an at-torney who has been an active member of the State Bar of California for at least the preceding three years or who has practiced in the federal courts of this state for at least the preceding three years, and a written declaration from this attor-ney stating that the person is qualified to perform paralegal tasks;

A high school diploma or G.E.D., a minimum of three years of law-related experience under the supervision of an attorney who has been an ac-tive member of the State Bar of California for at least the preceding three years or who has prac-

38 California Business and Professions Code Section 6450 (a).


ticed in the federal courts of this state for at least the preceding three years, and a written declara-tion from this attorney stating that the person is qualified to perform paralegal tasks. This experi-ence and training shall be completed no later than December 31, 2003.39 All paralegals shall be required to certify comple-

tion every three years of four hours of mandatory continuing legal education in legal ethics as well as four hours in general law.40

A paralegal may not perform any services for a consumer except under the direction and supervision of an attorney, law firm, corporation, government agency, or other entity that employs or contracts with the paralegal, or unless otherwise allowed by statute, case law, court rule, or federal or state ad-ministrative rule or regulation.41

A paralegal can only identify himself or herself as such if he or she has met the requirements of Sec-tion 6450 (c).42

New Jersey: New Jersey Supreme Court formed a committee that studied the paralegal industry for five years. The committee recommended to the New Jersey Supreme Court that the New Jersey Supreme Court should adopt required licensing for paralegals. To date, New Jersey has not adopted a licensing re-quirement for paralegals.

Utah: The Utah State Bar Legal Assistant’s Divi-sion’s Licensing of Legal Assistants Committee is-sued a report to the Utah Board of Bar Commission-ers recommending licensing requirements for para-legals. To date, the Utah State Bar does not require a paralegal to be certified or obtain a license.

Hawaii: Hawaii State Bar Association’s Task Force on Paralegal Certification approved two pro-posals imposing regulation of paralegal use and cer-tification requirements for paralegals. The certifica-tion program did not win the State Bar Association’s approval and is before the Hawaii Supreme Court.

Indiana: As part of the Indiana Rules of Profes-sional Conduct, the Indiana Supreme Court adopted Guidelines on the Use of Legal Assistants. Although not requiring certification or licensure, it does pro-

39 California Business and Professions Code Section 6450 (c)(1)–(4). 40 California Business and Professions Code Section 6450(d). 41 California Business and Professions Code Section 6451. 42 California Business and Professions Code Section 6452.

vide attorneys with more coherent guiding principles in the supervision of non-lawyers.

Maine: Paralegal or legal assistant mean a per-son, qualified by education, training or work experi-ence, who is employed or retained by an attorney, law office, corporation, governmental agency or other entity and who performs specifically delegated substantive legal work for which an attorney is re-sponsible.43 A person may not use the title paralegal or legal assistant unless the person meets the defini-tion in section 921.44

Pennsylvania: Pennsylvania Consolidated Stat-utes, Title 42, Section 2524(a) prohibits a paralegal from providing legal services unless supervised by an attorney.

Although many states define the term, provide guidelines for the use of legal assistants, and have unauthorized practice of law statutes, no state cur-rently “regulates” the paralegal profession through certification or licensure requirements. As such, at-torneys must be sure to maintain proper supervision of paralegals so as to ensure that the attorney avoids any possible bar misconduct as a result of a non-attorney’s actions.

ETHICAL CONSIDERATIONS IN EMPLOYING NONLAWYER ASSISTANTS

Supervision of Paralegals Paralegals have become essential for any immi-

gration practitioner who wishes to remain competi-tive in today’s legal market. The U.S. Bureau of La-bor Statistics predicts that the paralegal job market will double in size from its current level of more than 100,000 nationwide in the next decade.45 In many immigration practices, paralegals outnumber the attorneys three to one.46 Just 20 years ago, the majority of paralegals tasks were limited to adminis-trative office tasks and the occasional research pro-ject. Fueled by a combination of factors, the role of the paralegal has been steadily increasing and to-day’s paralegals represent a diversity of education, experience, and backgrounds. The tasks paralegals

43 Maine Revised Statutes, Title 4, Chapter 18, Section 921. 44 Maine Revised Statutes, Title 4, Chapter 18, Section 922. 45 Bureau of Labor Statistics, Occupational Outlook Hand-book, 2002, “Paralegals and legal assistants.” 46 Although not a “scientific” survey, an informal poll of several immigration practices reveals the average ratio to be more than three paralegals for every attorney.


perform, especially in an immigration practice, are limited only by creativity, legal authority, and the established parameters of the supervising attorney.

What are the three keys for a paralegal? The paralegal must be aware of the ethical and

legal responsibilities arising from the attorney-client relationship, why they exist, and how they affect the paralegal;

The paralegal must be aware that the ethical du-ties imposed on attorneys by state law affect paralegals; and

Paralegals are indirectly regulated by attorney ethical codes and by state laws that prohibit non-lawyers from practicing law.

Attorneys Practicing with Paralegals—Practical Concerns

The Duty of Competence: an attorney owes his client a degree of competence including maintaining a system to monitor, track, and “hit” deadlines for submission of documents. This duty extends from the attorney through the paralegal in the representa-tion of a client and the attorney must be aware of all cases being worked on by the paralegal and any deadlines pertinent to that matter. Competent repre-sentation requires the legal knowledge, skill, thor-oughness, and preparation reasonably necessary for the representation – this duty flows through the at-torney to the paralegals working directly under the attorney’s supervision on a given matter.

Duty to Supervise: All Model Rules and “parale-gal” definitions listed above state that an attorney must supervise a paralegal in the course of his or her daily duties. Webster’s Dictionary defines “super-vise” in the following manner: “To oversee for di-rection; to superintend; to inspect with authority.”47 Generally, case law seems to indicate that the attor-ney must supervise the manner in which the work is produced including its efficiency and effectiveness. A paralegal should not provide any communication or conduct any activity which could be construed as “legal activity” unless under the direct supervision of the attorney and with the attorneys full consent and knowledge.

Confidentiality of Information: All information relating to the representation of a client must be kept confidential unless the client consents to disclosure. 47 Webster’s Unabridged Dictionary (1913).

Paralegals must understand that the attorney-client privilege extends to them and that they have an af-firmative duty to uphold this privilege.

As discussed above, paralegals may perform vir-tually any legal task so long as the work is super-vised by an attorney, the attorney assumes responsi-bility for the paralegal’s work, and the work does not constitute the unauthorized practice of law. Therefore, attorneys must be aware of the blurred line between “authorized” and “unauthorized” prac-tices for their support staff.

AnoianLi

Pr

Lawyers Aiding Unauthorized Practice of Law lawyer is subject to discipline if he or she assists a onlawyer in engaging in the unauthorized practice f law. For purposes of this prohibition, nonlawyers nclude not only those without legal training, but lso disbarred, suspended, or out-of-state lawyers ot licensed in the jurisdiction. awyers may violate the prohibition against assist-

ng in others’ unauthorized practice by: • Improperly delegating duties to nonlawyer staff

or inadequately supervising their work; • Offering legal services to or accepting referrals

from businesses whose nonlawyer employees provide legal service to customers; or

• Working with disbarred, suspended, or out-of-state lawyers who are improperly practicing law.

Source: ABA/BNA Lawyers Manual on Professional Conduct

actice Pointers Hold periodic meetings with your paralegal pref-erably on a weekly basis to review law changes, office procedures and client matters. Encourage your paralegals to update their skills and take advantage of training opportunities, in-cluding attending legal seminars. Provide close supervision and give your parale-gals complete access to you as their supervising attorney. Utilize the paralegals in nontraditional roles such as maintaining the library/research materials, monitoring AILA InfoNet, and/or working on special projects such as marketing, computer support, or outbound visas.


Do not allow paralegals to sign correspondence or applications sent to or filed with any govern-ment agencies—only counsel should sign.

Do not allow paralegals to set legal fees with cli-ents; however, they may provide information that is set forth in a published price list, or, for exam-ple, they can indicate the hourly rates charged by the firm for attorneys or paralegals.

It is highly recommended that the attorney con-duct the initial interview, although you may wish to have your paralegals phone-screen potential clients. When the client initially comes to the of-fice, it is critical the client meet with the attorney and that any fee agreement be signed by the cli-ent and the attorney, even though the paralegal may be present during those activities.

Cross-train your paralegals in order to protect them in a down-sizing market so that they have proper skills to be able to handle various kinds of immigration matters. While some practices use a model of compartmentalizing paralegals into various specialties, it is important to continually cross-train your paralegals in various aspects and allow them to move about within your immigra-tion practice.

Promote the broadening of the paralegal’s hori-zons, including attending EOIR hearings, visiting the local DHS offices, attending AILA functions including luncheons when appropriate, seminars, and conferences. Additionally, encourage your paralegals to complete their bachelor’s degree, a paralegal certificate program, or apply to and at-tend law school. The Unauthorized Practice of Law: Although it

is convenient, economical, and often essential for the immigration practitioner to use the services of a paralegal or other “nonlawyer” assistant, the immi-gration practitioner cannot lose sight that the parale-gal is the ultimate responsibility of the attorney and the attorney is responsible for ensuring that the para-legal performs the work in a manner consistent with the state rules on unauthorized practice of law as well as the lawyer’s own ethical obligations. Fur-thermore, in several states, paralegals are governed by the unauthorized practice of law statutes, which sanction individuals for engaging in the practice of law without a license.

Case Study: Georgia Background: There are no certification or licen-

sure requirements for paralegals working in Georgia,

individual certification is only a voluntary process, and there are no formal education requirements to become a paralegal in the state of Georgia.48

The State Bar of Georgia expressly prohibits a lawyer from assisting a nonlawyer in the perform-ance of activities that would constitute the unauthor-ized practice of law. The unauthorized practice of law statute in Georgia is found at OCGA sec 15-19-50, et seq.

The practice of law is defined as: (1) representing litigants in court and preparing pleadings and other papers incident to any action or special proceedings in any court or other judicial body; (2) Convey-ancing; (3) Preparation of legal instruments of all kinds whereby a legal right is secured (emphasis added); (4) Rendering of opinions as to the validity or invalidity of titles to real or personal property; (5) Giving of legal advice; and (6) Any action taken for others in any matter connected with the law.49

It shall be unlawful for any person other than a duly licensed attorney at law: (1) To practice or ap-pear as an attorney at law for any person other than himself in any court of this state or before any judi-cial body; (2) To make it a business to practice as an attorney at law for any person other than himself in such courts; (3) To hold himself out to the public or otherwise to any person as being entitled to practice law; (4) To render or furnish legal services or ad-vice; (5) To furnish attorneys or counsel; (6) To ren-der legal services of any kind in actions or proceed-ings of any nature; and (7) To advertise that either alone or together with, by, or through any person, whether a duly or regularly admitted attorney at law or not, he has, owns, conducts, or maintains as an office for the practice of law or for furnishing legal advice, services or counsel.50

State Bar of Georgia’s Rules of Professional Conduct provides specific guidance to lawyers who employ paralegals. For example, Georgia Rules of Professional Conduct 5.3 provides that “with respect to a nonlawyer employed or retained by or associ-ated with a lawyer: A partner in a law firm shall make reasonable

efforts to ensure that the firm has in effect meas-ures giving reasonable assurance that the per-

48 See generally, State Bar of Georgia, Rules of Professional Conduct. 49 Unannotated Georgia Code 15-19-50. 50 Unannotated Georgia Code 15-19-51.


son’s conduct is compatible with the professional obligations of the lawyer;

A lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and

A lawyer shall be responsible for conduct of such a person that would be a violation of the Georgia Rules of Professional Conduct if engaged in by a lawyer if: (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its con-sequences can be avoided or mitigated but fails to take reasonable remedial action.51 Delegation is allowed only if the lawyer super-

vises the nonlawyer and retains responsibility for the work.52 Failure to provide adequate supervision also could create a situation permitting the paralegal to overstep proper bounds and commence giving legal advice. For example, in an advisory opinion issued by the State Bar of Georgia on February 11, 2000, the State Bar noted that a lawyer could be found to have aided a nonlawyer in the unauthorized practice of law in allowing the nonlawyer to “prepare and sign correspondence which threatens legal action or provides legal advice or both … a lawyer should

51 State Bar of Georgia, Rules of Professional Conduct, Rule

5.3. 52 Id. rule 5.5.

never place a non-lawyer in situations in which he or she is called upon to exercise what would amount to independent professional judgment for the lawyer’s client (emphasis added).”53 With the advent of the Internet and e-mail, the gray line of “providing legal advice” is blurred even further. Immigration practi-tioners must adequately supervise all e-mail corre-spondence to ensure that any e-mail from a paralegal contains language that reflects the opinion of the attorney or firm, i.e., “the attorney with whom I [paralegal] work indicates that …” or “it is the pol-icy of our firm ...”

CONCLUSION What is the moral to be learned from the above

discussion? Ethical training for paralegals, adequate supervision, and consistent review of a paralegal’s work are tasks that an immigration practitioner can-not ignore. Clear office procedures and job descrip-tions provided to the paralegal, in writing, with comprehensive and continuous training, can greatly assist the immigration practitioner in demonstrating that the attorney has made a reasonable effort to en-sure compliance by paralegals with the Rules of Pro-fessional Conduct and the attorney’s own ethical standards. Additionally, the immigration practitioner should have written supervision guidelines requiring that a lawyer review, approve, and personally sign all legal documents and correspondence.

53 Formal Advisory Opinion No. 00-2, State Bar of Georgia, February 11, 2000.


WHY “WALK THE LINE”? EFFECTIVE, EFFICIENT, AND ETHICAL PRACTICES FOR

IMMIGRATION PARALEGALS by Jasmine Chehrazi and Matthew I. Hirsch, with contributions from Alison Walters∗

In law firms of all types, paralegals play a prominent role in client relations, case preparation, and file administration.1 In few areas of the law is this truer than in immigration.

Paralegals in immigration law firms often find themselves walking the line between activities that are permissible for paralegals and those for which a

67

∗ Jasmine Chehrazi has over 10 years of experience assist-ing with immigration cases at Maggio & Kattar, P.C. She is co-author of “Visa Arts for Visual Artists” and “Waivers for Foreign Medical Graduates in a Nutshell.” Her previous American Immigration Lawyers Association (AILA) presen-tations include “A Paralegal’s Role in the Preparation of Nonimmigrant Business Visas,” “Successful Strategies for J Waivers,” and “How to Obtain and Prepare Declarations in Support of Various Immigration Petitions and Waivers.” Ms. Chehrazi attended Georgetown University for her bachelor’s studies and also attended the Corcoran College of Art, George Mason University, and the University of the District of Columbia.

Matthew I. Hirsch is a solo practitioner in suburban Phila-delphia. A former trial attorney for INS, Mr. Hirsch now specializes in employment- and family-based immigration. He is a past chair of AILA’s Philadelphia Chapter and has served on numerous local and national committees. Mr. Hirsch was co-editor of AILA’s 2006 Midyear Conference Handbook and associate editor of AILA’s Stanton Manual on Labor Certification. His articles and updates have been published in AILA’s Immigration Law Today, The Visa Processing Guide and Consular Posts Handbook, and vari-ous AILA conference handbooks. Since 1993, Mr. Hirsch has been adjunct professor of immigration law at Widener University School of Law.

Alison Walters is a senior paralegal at the Law Offices of Carl Shusterman in Los Angeles. She has over 10 years of ex-perience in almost every aspect of business- and family-based immigration law and is a regular contributor to the online Shus-terman Immigration Update and other publications. She holds a B.Sc. degree in international relations and linguistics studies (Russian, Swedish) and a diploma in management from the University of Surrey in the United Kingdom. 1 J. Broderick, An Emerging Model: Legal Assistant as Col-league, in Leveraging with Legal Assistants: How to Maxi-mize Team Performance, Improve Quality, and Boost Your Bottom Line (Arthur G. Greene, ed., 1996.

supervising attorney is responsible.2 Setting a defini-tive line is very difficult but can be accomplished through the use of systems to define the scope of paralegals’ duties, attributes to consider when hiring paralegals, how to make the best use of a paralegal’s talents, and the ways paralegals, supervising attor-neys, and clients can communicate.

This article offers suggestions on how paralegals can avoid crossing the line between permissible and impermissible practices,3 not through a review of laws governing unauthorized practice4 but through the study of better practices.

WHY NOT CROSS THE LINE? It is often easier for a paralegal to reply directly

and immediately to a client’s question, offer analysis and strategy, make recommendations, and advise clients than to act as an intermediary between the client and the supervising attorney. Moreover, an experienced paralegal is often amply qualified to offer sound advice. Such action, however, simply is illegal.5 All states have laws that prohibit the unau-thorized practice of law and restrict paralegals and

2 American Bar Association (ABA) Model Rules of Profes-sional Conduct, Rule 5.3. 3 The unauthorized practice of law may be reported to the Office of Immigration Assistance Attorney General Hotline at (888) 587-0557. Illegal or unethical attorney practices may be reported to the ABA at www.abanet.org/cpr/regula-tion/scpd/disciplinary.html. The ABA/NBA Lawyers Manual on Professional Conduct, available at www.abanet.org, states, “A lawyer is subject to discipline if he or she assists a nonpayer in engaging in the unauthorized practice of law. For purposes of this prohibition, non-lawyers include not only those without legal training, but also disbarred, sus-pended, or out-of state lawyers not licensed in the jurisdic-tion.” 4 M. Lieberman, “Unauthorized Practice of Law by a Parale-gal: What It Is and How to Avoid It,” DCBA Briefs Online (2002) March 27, 2006, available at www.dcba.org/ brief/mayissue/2002/art40502.htm. 5 M. Newman & R. Ford, “Utilizing Immigration Paraprofes-sionals: The Ethical Considerations,” in Ethics in a Brave New World, 15–27 (J. Pinnix, ed., 2004).

68 2006–07 IMMIGRATION & NATIONALITY LAW HANDBOOK

other support staff from acting too independently. Violations can subject a supervising attorney to dis-ciplinary sanctions and malpractice claims and a paralegal to charges of unauthorized practice of law.

It can also be costly and inefficient for paralegals to counsel clients, work on cases without adequate supervision, and otherwise engage in activities that are within the province of attorneys. For instance, a paralegal in preparing a petition or preparing for a hearing might be unsure of exactly what documents and information are required. In such cases, a para-legal who is not well supervised might waste valu-able time and money by pursuing case strategies, research, or evidence that is superfluous, inappropri-ate or even harmful.

Similarly, though an attorney may trust that a paralegal, especially one with years of experience, will be vigilant about maintaining client confidenti-ality,6 but even a good paralegal may accidentally and innocently breach that confidence, thereby creat-ing problems for the attorney-client relationship and exposing the attorney to ethical sanctions.

In order to prevent this, lawyers and law firms should have systems that help prevent unintended intrusions into the attorney’s realm while also pro-moting effective and efficient paralegal practices.

Establishing Systems for Keeping Paralegals Effective, Efficient, and Ethical

Each immigration case should begin with a re-tainer agreement describing the legal services to be provided and the fees for those services. The agree-ment informs clients, attorneys, and paralegals of their respective roles and responsibilities. The document can include standard information about attorney-client relationships,7 confidentiality,8 dual representation, 9 and the nature of nonattorney assis-tance on the case10 (that paralegals work under the supervision of an attorney and are therefore bound

6 R. Anteau & N. Wolff, “Keeping Secrets Secret: Safe-

guarding Client Confidentiality in Your Law Office,” ABA General Practice, Solo & Small Firm Division Magazine, September 2000, www.abanet.org/genpractice/magazine/ sept2000/sep2000anteau.html (accessed Mar. 27, 2006). 7 H. Vyas, “Ethical Issues for Immigration Lawyers,” Ethics in a Brave New World, 4–14 (J. Pinnix, ed., 2004). 8 Anteau & Wolff, supra note 6. 9 B. Hake, “Dual Representation in Immigration Practice,” Ethics in a Brave New World 28–35 (J. Pinnix, ed., 2004). 10 Newman & Ford, supra note 5.

by the ethical and legal responsibilities arising from the attorney-client relationship).11 A copy reminds the paralegal of his or her limits and role within a particular case.

An employee manual or office policy that re-views these same issues should be required reading. Moreover, paralegals should be asked to sign or ini-tial a document confirming that they have read and understand the manual. There should be opportuni-ties for questions and a review of scenarios with su-pervising attorneys where such issues arise. The pol-icy should incorporate procedures that help the para-legal understand how these issues can be raised and to whom concerns may be brought, and also provide channels for confidential inquiries about attorney behavior and ethics and the limits of a paralegal’s role. Similarly, an attorney joining a law firm should have resources available that provide a common un-derstanding of the role of the paralegal at the firm.12

The Paralegal and the Evidence A paralegal can be highly effective at the outset

of a case. A well-trained paralegal can even lead the client interview and be responsible for putting to-gether a complete record of relevant facts, such as current and former immigration status, education, work experience, family relationships, police inci-dents, and other factors germane to the analysis of immigration cases. To ensure that the paralegal does this properly, attorneys should have standard check-lists for client interviews with several pages calling for general information as well as questions geared for particular case types.13

Written instructions from the attorney on the checklist ensure appropriate supervision. For in-stance, a checklist for an H-1B case might identify such common tasks as obtaining a copy of the bene-ficiary’s degree and any necessary translations; it might remind the paralegal to copy in the supervis-ing attorney on correspondence and to document any substantive communications from the client.

11 National Association of Legal Assistants, “Model Stan-dards and Guidelines for Utilization of Legal Assistants-Paralegals,” NALA Model Standards 2005, available at www.nala.org/98model.htm, (accessed March 27, 2006). 12 Id. Among other limitations, paralegals cannot establish attorney-client relationships, set legal fees, give legal opin-ions or advice, or represent a client before a court. 13 For sample checklists and other helpful law office docu-ments, see AILA’s Immigration Practice Toolbox, Second Ed. (2006) with CD-ROM, available at www.ailapubs.org.

EFFECTIVE, EFFICIENT, AND ETHICAL PRACTICES FOR IMMIGRATION PARALEGALS 69

A Paralegal’s Role in Spotting Legal Issues Connected to his or her role in the collection of

evidence, the paralegal detects issues that require research, legal advice, or other attorney intervention. To be effective in this role, the paralegal must suffi-ciently understand the law, and be able to locate and use statutes, regulations, and Web and other re-sources, such as AILA InfoNet. The supervising at-torney and law firm must be clear that the paralegal must be familiar with the laws and regulations and keep informed of current developments.

This aspect of a paralegal’s work does not en-croach on the role of the attorney; rather, it equips the paralegal with an understanding of the law for more ready identification of issues that require the attorney’s intervention.

The Paralegal’s Role in Completing Forms A common responsibility for immigration para-

legals is to complete immigration forms. Though some may think of this as merely routine, anyone who has made an error on forms understands their critical importance. Some attorneys and paralegals will have clients sign a form in blank or allow a cli-ent to sign a form without fully explaining the con-tents and significance of the form. These practices are unacceptable practices and unethical; they can lead to future problems. Even if it is time-consuming to explain all parts of forms to clients, many mis-takes, misunderstandings, and legal violations can be avoided if paralegals and attorneys take this step.

The Paralegal’s Role in Providing Client Copies Paralegals often transmit a copy of a draft final

petition, or other filing to the client. The supervising attorney must ensure that this important task is done. To preserve confidentiality, prevent lost documents, and respect client preferences, the standard check-lists should indicate to whom copies should be sent.

The Paralegal’s Role as Messenger Paralegals from communicate legal advice from

the supervising attorney to a client. As a messenger, the paralegal should be clear that the legal advice is from the attorney, not his or her own advice. Ideally, such communications should be in writing for re-cord-keeping purposes.

Paralegals and attorneys can work together to identify the most effective and ethical ways for at-torneys to communicate the necessary legal advice. For example, if a paralegal drafts a memo, e-mail, or letter to a client that communicates advice or guid-

ance, the document should first be reviewed by the supervising attorney for any necessary revision, and then should go out over the attorney’s name.

Templates for documents, such as task, docu-ment, and information checklists; memoranda to the file; or letters confirming client communications can be helpful tools for paralegals. AILA’s Immigration Practice Toolbox is an excellent resource for attor-neys and firms seeking to improve their office tem-plates. The use of case management software also is helpful for maintaining records, communicating with clients, and helping paralegals walk the line between the legitimate paralegal role and encroaching on the attorney’s prerogative.

Hiring Paralegals: Skills to Look for When hiring a paralegal, a number of factors

must be considered: individual strengths, communi-cation skills, the ability to handle deadlines and pressure, organization, compatibility with others, prioritization, and of course personal character, in-tegrity, and honesty. Some can be taught; others are part of a person’s character and can be difficult to judge or test. At the heart of the hiring decision is the question of whether and in what way a paralegal is going to contribute to the strength of a law firm.

Handling Diverse Strengths Paralegals come from a wide variety of ethnic, lin-

guistic, socioeconomic, and educational backgrounds and, thus bring different skills, talents, and attributes to a law firm. Recognizing his or her strengths is a key to optimizing a paralegal’s effectiveness.

For example, paralegals who were raised in an-other culture have a specific knowledge and respect for the ways of that culture. This helps them under-stand complex interaction with others from that cul-ture. Paralegals who can communicate with clients in their native languages facilitate an open dialogue.

Candidates hold paralegal certificates, associate’s degrees, or bachelor’s degrees in a variety of aca-demic areas. A paralegal coming from an adminis-trative or secretarial background might possess highly developed organizational skills. Recognizing the qualities, strengths, and talents that spring from such diversity is important for hiring decisions.

Handling Communication Paralegals generally need strong communication

skills and should be comfortable with person-to-person contact. Paralegals must be able to build rela-tionships of trust so that clients will communicate


legally relevant information without feeling any dis-trust, anxiety, or shame. Here, an awareness of cul-tural issues that affect the nature and extent of com-munication can be helpful. For example, avoidance of eye contact is a sign of respect in some cultures; in others, it can be construed as reflecting insecurity or dishonesty.

Handling Clients Supervising attorneys often rely on paralegals for

routine communications with clients. This can lead to communication overload when anxious and frus-trated clients engage in persistent patterns of fre-quent calls, e-mails, and unscheduled drop-ins.

In dealing with persistent and annoying client communications, a paralegal should realize that “cli-ents are the purpose of our work, and not interrup-tions of it.” Paralegals must understand what is at stake for clients. Anticipating the concerns of clients and addressing them with periodic updates, return-ing telephone calls and e-mails, and being proactive in contacting clients helps prevent persistent or in-appropriate demands for information.

Handling Workload A paralegal must know when he or she is over-

whelmed or can take on more work. Some idea of workload can be gleaned from a review of case management summaries, revenues generated, client and coworker feedback, the quality of the parale-gal’s work, and how well records are kept. Just as paralegals should indicate when their workload is too great, they should indicate when they do not un-derstand something, whether it is an attorney’s com-ments or instructions, a client’s answer, or some other communication.

Handling Problem Cases Communication is extremely helpful to the ethi-

cal resolution of problem cases, whether the prob-lems resulted from actions or inaction by the parale-gal, the attorney, the government, the client, or some combination of these. At fault or not, a paralegal who senses that there is a problem must immediately alert the supervising attorney. This can be systemi-cally accomplished using a simple internal-use form stating the date, description, and timing of the prob-lem and suggestions for the problem’s resolution, initialed by the person submitting the form. Copies of the form can be placed in the client’s file and cir-culated as needed.

Handling Client Stress Even when sympathetic to a client’s plight, a

paralegal cannot act as a client’s therapist or confes-sor. The paralegal should not be the scapegoat or punching bag for a client who is frustrated and who wants to “vent” or blame the paralegal. Instead, a paralegal must be well equipped to defuse such situations and to manage pressure. A paralegal must remain sensitive to a client’s circumstances so that he or she can fairly manage the client’s expectations.

The paralegal and the supervising attorney must never inflate a client’s expectations. An example of setting client expectations is a paralegal informing a client that he or she will call the client in a set amount of days to inform the client of the case status. This gives the client a date to look forward to and may encourage the client to refrain from making premature inquiries.

Handling Priorities and Multitasking Contrary to popular belief, multitasking is ineffi-

cient.14 An immigrant of sorts himself, the Syrian-born Publilius Syrus of Rome said, “To do two things at once is to do neither.”15 When a paralegal has an overlong “to do” list, it is difficult to know which task to do first. When every case and every task is important, the paralegal must determine the order in which to execute the tasks by effectively communicating with his or her supervising attorney, by employing common sense assessments, and by understanding the “process flow”16 in various immi-gration procedures.

continued

14 “Multitasking and Task Switching,” NALA Model Stan-dards, University of Michigan Brain, Cognition and Action Laboratory, available at www.umich.edu/~bcalab/multitask-ing.html; P. Anderson, “Study: Multitasking Is Counterpro-ductive,” CNN.com/Career (Aug. 5 2001), available at http://archives.cnn.com/2001/CAREER/trends/08/05/multi-tasking.focus/index.html, accessed March 27, 1006. 15 “Publilius Syrus.” Wikiquote., available at http://en. wikiquote.org/wiki/Publilius_Syrus (accessed Mar. 27, 2006). 16 Process flow refers to the standard steps that must be taken in a particular type of immigration case and the order in which the steps are generally taken, which are usually de-termined by immigration law and procedure, firm proce-dures, government processing times, and similar factors. An understanding of process flow helps paralegals gain perspec-tive about where a specific case stands in the case type’s typical process flow. Paralegals can help attorneys strategize how to make processes for different case types flow most efficiently. For instance, they can draw up charts, diagrams, and other explanatory models to identify current process

EFFECTIVE, EFFICIENT, AND ETHICAL PRACTICES FOR IMMIGRATION PARALEGALS 71

Immigration case management software is a highly useful tool for organizing tasks. Some pro-grams allow the user to assign a value or due date to a task to designate its priority. Regardless of the software selected, implementation can be a long and challenging process that requires both attorneys and paralegals to participate.

Training Paralegals and Keeping Them Effective

Internal Training Throwing paralegals into the pool and seeing

who can swim is not the best training practice. A training program for inexperienced paralegals should review U.S. immigration policy and law, and introduce governing regulations, manuals, and common research materials. Paralegal training will also usually include having the new paralegal “shadow” a more seasoned paralegal and gain hands-on experience by helping with tasks under close supervision and instruction.

Whether the paralegal is a new hire or a staff member being trained to assist in new ways, larger immigration law firms can coordinate the paralegal’s training with several different staff members, with each training the paralegal in a different area of spe-cialization. Whatever the firm size or the paralegal’s experience, there should be one-on-one training with at least daily opportunities for the paralegal to pre-sent questions in an organized fashion.

External Training Besides internal training, there are numerous or-

ganizations that offer educational programs and re-sources for training paralegals. Although such pro-grams add cost to the training process, they are usu-ally an excellent investment in a new paralegal.

Many state bar associations offer seminars on the fundamentals of U.S. immigration law. Although they may be often intended for attorneys from other fields with an interest in immigration law, they are often appropriate for paralegals who want to know more about immigration law and procedure.

Every year, AILA conducts conferences that cover immigration law fundamentals and also peri-odically offers seminars for immigration paralegals. AILA offers topic-specific conferences hosted by

Attorneys should step back to consider the big picture by analyzing ethical practices, process flow, the use of case management software, the design and use of systems for improving productivity, diversify-ing assignments, cross-training, and other ideas to keep a paralegal interested in the job. Paralegals should be part of the process of analyzing the big-picture issues. Who better to help search for, pro-pose, and implement new and better ways of accom-plishing tasks and projects and resolving problems than paralegals themselves?

flow and analyze how to streamline processes and eliminate unnecessary steps.

local chapters, an annual conference, Web confer-ences, and teleconferences.

Continuous and Regular Training Continuous training is essential because immi-

gration laws constantly change. The following sug-gestions can help maintain paralegal skills at high level and help attorneys who work with them: Updates on procedural changes should be for-

warded to all staff, centrally printed, and organ-ized by topic and date for easy firm-wide access.

Paralegals should periodically conduct research, perhaps using AILA’s InfoNet and reviewing statute and regulations, featured articles in Inter-preter Releases, U.S. Citizenship and Immigra-tion Services (USCIS) memos, etc.

Attorneys should periodically hold staff meetings to review immigration procedure questions.

Attorneys can ensure that appropriate opportuni-ties for external professional development for paralegals, recognizing the value these add firm-wide; paralegals can debrief other staff members and take detailed notes for firm-wide distribution.

Retention: Keeping the Job Interesting

Goals and Reviews It is important to have plans that encourage reten-

tion, measure success, and ensure adherence to ethi-cal standards. Paralegals should work with their su-pervising attorneys to identify short- and long-term goals, perhaps quarterly and annual goals, and should be regularly reviewed by supervising attor-neys. Firms may consider the use of self-evaluation and firm evaluation questionnaires as part of a para-legal’s performance review to facilitate open discus-sions of job-related issues.

The Big Picture

Even a paralegal’s simple suggestion that an at-torney estimate how long it will take to review the


paralegal’s work product can do wonders for the firm’s big picture, because the paralegal can more efficiently prioritize work, estimate case preparation time, update clients, and avoid stress and delays.

Looking at the big picture may also allow parale-gals to consider how they may become involved in new tasks and cases. In complicated situations re-quiring legal advice, more experienced paralegals can draft correspondence, which can then be final-ized, signed, and transmitted by supervising attor-neys. Attorneys may consider offering paralegals conceptual revisions, rather than word-for-word cor-rections, so that paralegals can offer their own solu-tions for attorney consideration. Paralegals can be helpful in client receptions and other business de-velopment activities. Paralegal support also should be taken into account; a paralegal’s ability to rely on other support staff, even if only occasionally when the workload is particularly large, can go a long way toward relieving and retaining the paralegal. Part of the big picture approach in mid-sized and large firms may be to analyze flexibility to shift work between paralegals in the interest of fairness and efficiency.

What It’s Worth: Compensation Paralegal compensation varies significantly de-

pending on years of experience; there is a wealth of information on the Internet about standard paralegal pay.17 Aside from standard compensation, paralegals also may benefit from bonuses, tuition reimburse-ment, attendance at immigration courses, and stan-dard transportation benefits.

Most paralegal positions are not exempt from the overtime protection requirement of the Fair Labor Standards Act (FLSA) and, thus, qualify for over-time pay for all hours worked over 40 in a work-week.18 However, at present, in addition to a salary of at least $23,660 per year or $455 per week,19 a professional position may be exempt from FLSA overtime protection if the position meets the follow-ing DOL-prescribed criteria:

17 For example, the National Federation of Paralegal Asso-ciation offers a Paralegal Compensation and Benefits Report available at www.nfpa.org. 18 “Exempt/Non-Exempt,” WSPA Paralegal Compensation (Feb. 21, 2006), www.wspaonline.com/exempt.htm (accessed Mar. 27, 2006). 19 “DOL’s Fair Pay Overtime Initiative,” Fair Pay. U.S. De-partment of Labor Employment Standards Administration Wage and Hour Division, at www.dol.gov/esa/regs/compliance/ whd/fairpay/ (accessed Mar. 27, 2006).

The employee’s primary duty must be the per-formance of work requiring advanced knowl-edge;

The advanced knowledge must be in a field of science or learning; and

The advanced knowledge must be customarily acquired by a prolonged course of specialized in-tellectual instruction.20

Regardless of the specifics of their compensation, paralegals should not be rewarded for excessive in-dependence, since that might encourage paralegals to avoid the necessary supervision.

CONCLUSION Drawing the line between ethical and unethical

paralegal practices is beyond challenging. Thank-fully, what is known of this line can be reinforced through systems that safeguard the ethical partner-ship between attorneys and paralegals. These sys-tems hinge upon understanding the scope of parale-gal duties, the strengths and limitations of each para-legal, fair paralegal compensation, and issues essen-tial to paralegal hiring, training, and development. Through this understanding, the practice of immi-gration law as a whole can be made more efficient, effective, and, ethical.

20 Fact Sheet #17D: Exemption for Professional Employees Under the Fair Labor Standards Act (FLSA), Fair Pay Fact Sheet by Exemption, available at www.dol.gov/esa/regs/ compliance/whd/fairpay/fs17d_professional.htm. Other DOL FairPay Fact Sheets describe further potential grounds for FLSA exemption.


273 Copyright © 2009 American Immigration Lawyers Association

IT’S ALWAYS DARKEST BEFORE THE DAWN: GETTING A GRIP ON RECENT CHALLENGES TO L-1 ELIGIBILITY

by Kehrela M. Hodkinson, Neil S. Dornbaum, Karen Koenig Winarsky and Larry L. Drumm*

INTRODUCTION “Now is the winter of our discontent; made glorious summer by this son of York. And all the clouds that low’r’d upon our house; in the deep bosom of the ocean buried.”

With these words, Shakespeare’s Richard III announced that the worst of times were over. But not so for immigration attorneys whose clients rely on the L-1 nonimmigrant classification. For us, the “winter” of our discontent is just beginning and the glorious summer is nowhere to be found.

Congress originally created the L-1 visa category in 1970 in recognition of the need for foreign companies to temporarily transfer employees from abroad to the United States. Individuals who have been employed by a foreign company as a manger, executive or in a specialized knowledge capacity, may qualify for L-1 status if, during the three years preceding admission into the United States, they have worked for the employer out-side the U.S. for at least one continuous year and wish to transfer to an executive, managerial or specialized knowledge position in the U.S. to work temporarily with a parent, subsidiary, branch or affiliate of their for-eign employer. Seems simple, right? WRONG!

As explained in more detail below, what was originally conceived as a way of facilitating investment and trade in the United States and encouraging a global sharing of talent and resources, has now become a source of tension between U.S. and foreign workers. Issues relating to the definition of “specialized knowledge” and “functional manager” have created a climate of distrust between employers and the government that has re-

* Kehrela M. Hodkinson is the principal of Hodkinson Law Group in London, United Kingdom. She was admitted to the Cali-fornia State Bar in 1980. Prior to moving to London in 1993, she established law firms in Los Angeles and San Francisco, CA. Since moving to the UK, her practice has been limited to U.S. immigration law with an emphasis on consular processing at the American Embassy in London. Mrs. Hodkinson is the Chair of the Rome District Chapter and is a recipient of a 2008 AILA Presidential Award. She is a frequent speaker and the author of articles on consular processing in London in AILA's annual Visa Processing Guide.

Neil S. Dornbaum is a partner in Dornbaum & Peregoy, Newark, New Jersey. The firm's practice is limited to immigration and nationality law with special emphasis on employment-based immigration. Mr. Dornbaum lectures nationally on various aspects of Immigration law practice for NJICLE, NYSBA, Federal Bar, and ABA, AILA, business and human resource organi-zations. He serves as NJICLE Program Chair/Course book editor for Advanced Immigration Law Issues for Attorneys, Human Resource Personnel and In House Counsel and the annual Immigration Law Conference. He is on the editorial board for Immi-gration Law Today and is a reviewer for Kurzban's Immigration Law Sourcebook. He currently serves as one of thirteen Com-missioners appointed by the ABA President to the ABA's Commission on Immigration. He is listed in "The Best Lawyers in America" and "Martindale Hubbell's Bar Register of Preeminent Lawyers" and “An International Who’s Who of Corporate Immigration Lawyers” for his work in Immigration. www.immigrationlawyersnj.com.

Karen Koenig Winarsky is partner in the Atlanta office of BAL Global Corporate Immigration, where she practices business immigration law. She has a particular expertise with respect to the broadcast and entertainment, information technology, manufac-turing, and financial services industries. Karen has served as a member of AILA's Nebraska Service Center and DOL Liaison Committees. She also co-chaired the Immigration Committee of the American Bar Association’s Section of Labor and Employ-ment Law for four years. Karen is listed in the International Who’s Who of Business Lawyers and The Best Lawyers of America.

Larry L. Drumm is a Senior Associate Attorney at BAL Global Corporate Immigration, focusing on employment based immigration matters. He was the 2007-2008 Chapter Chair for the Northern California Chapter of AILA and has participated in AILA comments on proposed immigration legislation and rulemaking. He is currently the 2008-2009 Consumer Protection and Authorized Practice of Law Committee Chair. Mr. Drumm regularly speaks and writes on a variety of immigration topics for AILA and other organizations.

The authors wish to gratefully acknowledge Sharon Noble for her assistance in writing and editing this article.

http://www.immigrationlawyersnj.com/


Copyright © 2009 American Immigration Lawyers Association

sulted in a heightened state of anxiety and scrutiny. Add to the distrust an economy in turmoil and the stage is indeed set for a long, cold winter. Specialized Knowledge Specialized Knowledge Before the 1994 Puleo Memorandum

When the L-1B specialized knowledge category was created in 1970, neither the statute creating the cate-gory nor the legislative history defined the term “Specialized Knowledge.” Over the course of the last three decades, the term has ebbed and flowed, becoming more or less restrictive depending on a variety of factors.

In the absence of a statutory definition, the Immigration and Nationality Service (legacy INS) developed a body of binding precedent decisions that attempted to clarify the definition of specialized knowledge. What followed were three successive definitions and interpretations of the term by regulation in 1983,1 1987,2 and 1988.3 Each definition was different and more or less restrictive than the previous definition, resulting in only more confusion. The most restrictive regulation defined specialized knowledge in part, as follows:

Knowledge possessed by an individual whose advanced expertise and proprietary knowledge of the or-ganization’s product, service, research, equipment, techniques, management or other interests of the em-ployer not readily available in the United States labor market. This definition does not apply to persons who have general knowledge or expertise (emphasis added). 4

A more liberal definition of specialized knowledge, eliminating the reference to “proprietary knowledge” or knowledge that was ”unavailable in the U.S. labor market,” was codified by Congress in The Immigration Act of 1990 (IMMACT90), putting what was hopefully an end to subjective agency interpretations:

[A]n alien is considered to be serving in a capacity involving specialized knowledge with respect to a company if the alien has a special knowledge of the company’s product and its application in interna-tional markets or has an advanced level of knowledge of processes and procedures of the company.5

The Puleo Memo—A Roadmap for Practitioners and Petitioners In 1991, legacy INS issued a policy memorandum adopting a more liberal interpretation of specialized

knowledge based on the new statutory definition.6 The memorandum, which became known simply as the “Puleo Memo,” has, until very recently, provided guidance to field officers, immigration attorneys and peti-tioners alike about the interpretation and application of specialized knowledge.

The Puleo Memo notes that while specialized knowledge “is different from that generally found in the par-ticular industry,” the knowledge “need not be proprietary or unique, but it must be different or uncommon.” Furthermore, a foreign national’s advanced knowledge need not be “narrowly held throughout the company,” the knowledge need only be “advanced.” Finally, Puleo explained that “there is no requirement in current leg-islation that the alien’s knowledge [be]…found in the United States labor market.”7

After setting the parameters regarding the statutory definition, the Puleo Memo described some common characteristics of a foreign worker with specialized knowledge They are not all inclusive. The alien: Possesses knowledge that is valuable to the employer’s competitiveness; Possesses knowledge which normally can be gained only through prior experience with the foreign employer; Possesses knowledge of a product or process that cannot be easily transferred or taught to another individual;

1 48 Fed. Reg. 41142, 41146 (Sept. 14, 1983). 2 52 Fed. Reg. 5738, 5752 (Feb. 26, 1987). 3 INS Central Office (CO) Memorandum, R. Norton (CO 214.26-P), “Interpretation of Specialized Knowledge Under the L Classification,” (Oct. 27, 1988), reproduced in 65 Interpreter Releases 1170, 1194 (Nov. 7, 1988). 4 52 Fed. Reg. 5738, 5752 (Feb. 26, 1987). 5 Pub. L. No. 101-649, 104 Stat. 4978 (Nov. 29, 1990). 6 INS Memorandum, J. Puleo, “Interpretation of Specialized Knowledge” (Mar. 9, 1994), published on AILA InfoNet at Doc. No. 01052171 (posted May 21, 2001). 7 Id.

IT’S ALWAYS DARKEST BEFORE THE DAWN: GETTING A GRIP ON RECENT CHALLENGES TO L-1 ELIGIBILITY 275


Has been utilized abroad in a capacity involving significant assignments which have enhanced the em-ployer’s competitiveness, productivity, image or financial position; or

Is qualified to contribute to the U.S. employer’s knowledge of foreign operating conditions as a result of special knowledge not generally found in the industry.8 The Puleo Memo went on to outline several hypothetical situations and concluded by noting that a com-

mon theme that runs through the examples of specialized knowledge is that “the knowledge that the benefici-ary possesses, whether it is knowledge of a process or a product, would be difficult to impart to another indi-vidual without significant economic inconvenience to the United States or foreign firm.”9

The Puleo Memo was affirmed in 2002 when Fujie Ohata, Director of Service Operations, reminded USCIS adjudicators that where the foreign worker has advanced knowledge of company processes and proce-dures, the knowledge need not be narrowly held throughout the company. The Ohata Memo also noted that requests for evidence should not depart from the standards set forth in the Puleo Memo.10 2008—Puleo Has Left the Building

The standards set forth in the Puleo Memo and confirmed in the Ohata Memo, were not challenged, ques-tioned or indeed altered until August 2008 when a 42-page unpublished AAO opinion concluded that USCIS is not legally bound to follow the Puleo Memo or any of the successive agency memos that have liberalized or broadened the standard for specialized knowledge.11 With the stroke of a pen (or the keystroke on a com-puter keyboard), we seem to have returned to the “good ‘ol days” where USCIS adjudicators have the author-ity to determine what constitutes specialized knowledge, ”kitchen sink” Requests for Evidence (RFEs) are sent out routinely and the petitioner bears a greater burden of proving that the alien possesses really, really special or advanced knowledge. As the AAO noted in its opinion, “specialized knowledge employees will be an elevated class of workers within a company and not just an ordinary or average employee.”

The growing trend towards narrow interpretations and unrestricted discretion being seen across the board in specialized knowledge cases is unlikely to change in the near future. During a recent AILA Liaison meet-ing with representatives from the Vermont Service Center, the definition of specialized knowledge was raised in the context of the Puleo Memo and the Adjudicator’s Field Manual, which explicitly states that “policy guidance is binding on all USCIS employees” and that those types of materials designed as correspondence, such as unpublished decisions of the BIA or AAO, are not to be given the same weight or “dictate” any “binding course of action.”12 When asked to describe the steps being taken to train examiners on the applica-tion of the Puleo and Ohata Memoranda in L-1B adjudication, the VCS representative responded:

Adjudicators are trained to consider all applicable statues, regulations, and current policy memorandums pertaining to the L1B classification when adjudicating L1B petitions. Each case is considered individu-ally and adjudicated based on evidence submitted and the above referenced guidelines.13

Isn’t that refreshing? We are truly in for a long, bitter winter. Functional Managers Are Dead … and I Was Not Invited to the Funeral

USCIS Regulations define "Managerial Capacity" as an assignment within an organization in which the employee primarily:

(1) Manages the organization, or a department, subdivision, function, or component of the organization;

8 Id. 9 Id. 10 INS Memorandum, F. Ohata, “Interpretation of Specialized Knowledge” (Dec. 20, 2002), published on AILA InfoNet at Doc. No. 03020548 (posted Feb. 5, 2003). 11 Matter of GS Technical Services, Inc. (AAO, July 22, 2008) (unpublished), published on AILA InfoNet at Doc. No. 08081964 (posted Aug 19, 2008). 12AILA Liaison/VSC Meeting Minutes (1/21/09), published on AILA InfoNet at Doc. No. 09012768 (posted Jan. 27, 2009), which references the USCIS Adjudicator’s Field Manual (AFM), Chapter 3.4. 13 Id.



(2) Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organiza-tion; (3) Has the authority to hire and fire or recommend those as well as other personnel actions (such as pro-motion and leave authorization) if another employee or other employees are directly supervised; if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and (4) Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by vir-tue of the supervisor's supervisory duties unless the employees supervised are professional (emphasis added).14

It seems abundantly clear from the definition above that functional managers manage an essential function and exercise control over the day-to-day operations of the function they manage. In reality, we rely on the functional manager definition when we are presented with an employee who does not manage a group of people or whose position sits off to the side on the corporate organization chart. It became the catchall cate-gory for a manager with no supervisory responsibilities and we assumed that with enough flowery language, USCIS adjudicators would automatically approve such petitions because the beneficiary seemed so impor-tant—after all, they had a function to manage!

With the current climate of restrictive interpretation and suspicion, the concept of a functional manager is, in a word, dead (or quickly dying). There is no real definition of functional management and the key to ap-proval of a petition for a functional manager has always been creativity in describing the function and the beneficiary’s proposed duties. We are advised to “think outside the box and be creative” when drafting such petitions.15 If we first need to get the client to focus on the theories and concepts of what they do in order to define their functional managerial responsibilities, think how hard it is to get the adjudicator to understand and accept these same theories and concepts. We are seeing adjudicators routinely sending all-inclusive, broad-brush RFEs when faced with a functional managerial petition, and the denials are becoming harsher and more unforgiving. To Further Our Discontent—Increased Scrutiny, Distrust, and Downsizing

A controversy has been brewing for several years about whether L-1 foreign workers are displacing American workers. Some American workers feel that their jobs are being “stolen” by foreign workers who are being transferred to the United States and paid a much lower salary. On the other hand, employers argue that foreign workers are being transferred because of their managerial, executive or specialized knowledge within the companies that have the qualifying L relationship, which is why the L category is privileged com-pared to the H-1B and does not have Labor Condition Application requirements.. The most significant area of concern focuses on the so-called “job shops,” whereby employment agencies use the L-1 visa to transfer low wage personnel to work at unaffiliated U.S. businesses. The essential issue in such cases is the existence of an employee-employer relationship and who has control over the worker’s day-to-day activities, the company with the qualifying relationship that sponsors the intracompany transfer (the so called “job shop”) or the unaf-filiated company where the employee is placed. The L-1 Visa Reform Act of 2004 attempted to alleviate some of these concerns by excluding workers, under certain circumstances, who would be primarily stationed at the worksite of an employer other than the petitioner.16

As amended by the L-1 Visa Reform Act of 2004, section 214(c)(2)(F) of the Act, 8 USC §1184(c)(2)(F), provides:

14 8 CFR §214.2(l)(1)(ii)(B). 15 G. Endelman, “How To Win A Functional Manager Case,” Immigration Daily, 2007, available at http://www.ilw.com/articles/2007,1206-endelman.shtm. 16 INA §214(c)(2)(F).

http://www.ilw.com/articles/2007,1206-endelman.shtm



An alien who will serve in a capacity involving specialized knowledge with respect to an employer for purposes of section 1101(a)(15)(L) and will be stationed primarily at the worksite of an employer other than the petitioning employer or its affiliate, subsidiary, or parent shall not be eligible for classification under section 1101(a)(15)(L) if:

(i) The alien will be controlled and supervised principally by such unaffiliated employer; or (ii) The placement of the alien at the worksite of the unaffiliated employer is essentially an arrange-ment to provide labor for hire for the unaffiliated employer, rather than a placement in connection with the provision of a product or service for which specialized knowledge specific to the petitioning em-ployer is necessary.17

While the L-1 Visa Reform Act of 2004 appeased some segments of the U.S. workforce, controversy and distrust over the L-1 classification has continued to rage. In January 2006, the Office of the Inspector General of the Department of Homeland Security conducted an in-depth examination of the L-1 visa program and is-sued a detailed report that concluded, “the L-1 program is vulnerable in several respects.”18 USCIS adjudica-tors who were interviewed admitted that they had an underlying perception that “the category is subject to fraud and abuse.”19 L-1 petitions were perceived as more susceptible to fraud because they are more difficult or impossible to verify. Adjudicators said that they could not be certain that a beneficiary would indeed work in the managerial or specialized knowledge position they were requesting and there were no documents to prove the future activities of the beneficiary. They also raised concern over the ability to verify the existence and legitimacy of the foreign company or the relationship between the foreign entity and the U.S. entity.20

In addition, considerable reference was made to the media attention focused on the increase in L-1 visa is-suance in the IT sector, the potential for the L-1 program to be used as a substitute for the H-1B program, and a growing concern that, despite the Visa Reform Act of 2004, L-1 visas were continuing to be used to lower U.S. wages and displace U.S. workers. Without a more restrictive and precise definition of specialized knowl-edge and with no requirement for a labor certification or prevailing wage, the fear is that the L-1 visa will be used as an end run around the stricter requirements of the H-1B.21

Added to this climate of increased suspicion and distrust is rising unemployment in the United States and the spiraling economic downturn we are currently experiencing. With fewer U.S. jobs available, immigration authorities are giving much greater scrutiny to all visa categories, including the L-1 visa. Some think USCIS is trying to solve our nation’s employment problems by denying visas to foreign workers. Unfortunately, the reality is if U.S. companies cannot hire and retain qualified workers, doors will shut, business will go else-where and the innovation and technology that we need to pull ourselves out of our current economic woes may head to countries with more lenient immigration rules.

On the flip side, an undetermined number of foreign workers currently in the United States are becoming casualties of the recession. Increasingly, immigration lawyers are receiving calls from foreign professionals who have either been terminated or are facing a reduction in hours or salary. The situation is not very differ-ent from the period following the “dot-com” bust in 2000-2001, when high-tech employees were laid off and many foreign workers returned to their home countries. Today, workers in many different sectors are losing their jobs. As the recession deepens, more and more companies will be forced to downsize, reduce hiring abroad or simply pull up stakes and head home. This winter is getting longer and colder….

17 149 Cong. Rec. S11649, *S11686, 2003 WL 22143105 (Sept.. 17, 2003); see also Sen. Judiciary Comm., Sub. on Immigra-tion, Statement for Chairman Senator Saxby Chambliss, July 29, 2003. 18 DHS, Office of Inspector General, “Review of Vulnerabilities and Potential Abuses of the L-1 Visa Program” (Jan. 2006), published on AILA InfoNet at Doc. No. 06021310 (posted Feb. 13, 2006). 19 Id. 20 Id. 21 Id.



THE SUCCESSFUL PRESENTATION OF L-1B SPECIALIZED KNOWLEDGE CASES As noted above, while the L-1B classification has been used by multinational companies to transfer per-

sonnel with “specialized knowledge” to the U.S. for more than thirty years, the recent trend at USCIS has been to engage in a higher level of office scrutiny that has tightened eligibility and resulted in more RFEs and denials both by USCIS and the AAO.

USCIS has never provided a list of “acceptable documents” to guide practitioners in preparing L-1 cases and therefore it is critical to periodically review the AAO decisions and AILA liaison minutes to understand and keep track of the additional burdens that are being placed on practitioners to document their cases, in many instances with additional items never before required.

The regulations list the types of documentation generally required to support an initial filing, specifically, that an individual petition filed on Form I-129 must be accompanied by: Evidence that the petitioner and the organization, which employed or will employ the foreign worker, are

qualifying organizations. Evidence that the foreign worker will be employed in an executive, managerial, or specialized knowledge

capacity, including a detailed description of the services to be performed. Evidence that the foreign worker has at least one continuous year of full-time employment abroad with a

qualifying organization within the three years preceding the filing of the petition. Evidence that the foreign worker’s prior year of employment abroad was in a position that was manage-

rial, executive or involved specialized knowledge and that the foreign worker’s prior education, training, and employment qualifies him/her to perform the intended services in the United States (however, the work in the United States need not be the same work which the alien performed abroad).22 USCIS frequently cites Fedin Bros. Co., Ltd., v. Sava23 in L-1B denials, stating, “specifics are clearly an

important indication of whether a beneficiary’s duties encompass specialized knowledge.” Numerous denials indicate that even a very detailed letter from the employer with no primary evidence is of little probative value in that it is considered self-serving.24 It is now more important than ever to include additional support-ing material to prove the specific reasons the beneficiary can justify eligibility. Broad, conclusionary state-ments by the employer, or statements regarding the employer’s standard policy, are not sufficient evidence.

That said, however, the term “specialized knowledge” is not an absolute concept and cannot be clearly de-fined. As observed in 1756 Inc. v. Attorney General, “[s]imply put, specialized knowledge is a relative…idea which cannot have a plain meaning.”25 There is some helpful language to guide the practitioner, however. For example, the congressional record specifically states that the L-1 category was intended for “key person-nel.”26 The term “key personnel” denotes a position within the petitioning company that is “of crucial impor-tance.”27 In general, all employees can reasonably be considered “important” to a petitioner’s enterprise. If an employee does not contribute to the overall economic success of an enterprise, there is no rational economic reason to employ that person. An employee of “crucial importance” or “key personnel” by contrast must rise above the level of the petitioner’s average “important” employee. As explained above, the Puleo Memo indi-cated that while the employee’s specialized knowledge need not be “proprietary or unique,” it must be “dif-ferent or uncommon.” While a foreign national’s knowledge need not be “narrowly held throughout the com-pany,” it must be “advanced.”

22 8 CFR §214.2(1)(3). 23 724 F. Supp. 1103 (E.D. N.Y. 1989), aff’d 905 F.2nd 41 (2nd Cir. 1990). 24 Matter of Treasure Craft of California, 14 I&N Dec 190 (Reg. Comm. 1972), which states going on the record without sup-porting documentation is not sufficient for meeting the burden of proof. 25 745 F. Supp. 9, 15 (D.D.C. 1990). 26 See generally, H.R. REP. NO. 91-851, 1970 U.S.C.C.A.N. 2750. 27 Webster’s II New College Dictionary, 605 (Houghton Mifflin Co. 2001).



In the aftermath of Matter of GSTechnical Services, Inc.28 the AAO’s position is that it must make com-parisons not only between the specialized knowledge employee who claims L-1B eligibility and the general labor market, but also between that employee and the remainder of the petitioner’s workforce. Under this more restrictive interpretation, the analysis that an adjudicator will undertake to determine if knowledge is in fact “specialized” now requires a comparison of the knowledge possessed by others in the same field within the United States labor market (this analysis does not, however, also require the adjudicator to determine whether workers are available in the United States to perform the beneficiary’s job duties). Case Studies

To illustrate how such an analysis would proceed, three recent case fact patterns are described below, fol-lowed by a detailed discussion regarding possible approaches and documentation that could be used to sup-port the initial petition or to respond to an RFE. Case Study 1: Software Engineer Based Primarily at Client Site

The petitioner is a software development company that provides technology and management consulting services and solutions, with U.S. headquarters and a “back office” in India that performs the design and devel-opment work. The petitioner had entered into a contract with a large U.S. based company for the development of web-based, line-of-business applications that automates its core “Services of Process” business. It sought to transfer the beneficiary to the U.S. to assist with enhancements. The beneficiary participated in the design and development of the first phase of the project developed overseas.

Proposed job duties: Discovering client business requirements, mapping them into technical solutions and performing require-

ments gathering and analysis; Developing and maintaining all phases of the software lifecycle; Designing and developing web-based applications for computer systems using ASP.net, XML, C#, Share-

point 2007, SQL Server and Oracle databases; Designing and developing dynamic, multi-threaded tier applications that interact with backend databases

and/or middle tier application servers; and Developing documentation and project plans for clients and managing Junior Programmer Analysts.

Petitioner provided a supporting letter, establishing that the individual would be employed in the U.S., at the client site in a specialized knowledge capacity on a proprietary installation using sensitive client informa-tion. The letter noted: The breadth of the beneficiary’s knowledge is different from and much greater than that ordinarily en-

countered in the field, and clearly indicative of the beneficiary’s advanced expertise developed after an in-tensive design process, conducted as a member of a multimember design team outside the U.S.;

The beneficiary’s knowledge of the processes and procedures of the organization are substantially differ-ent from, or advanced in relation to, that of any of the more generally available software engineers of simi-lar companies;

As a Senior Software Engineer, for a sophisticated design project developed for nearly three years outside the US, the beneficiary possesses specialized knowledge above that normally possessed by other Senior Software Engineers employed by petitioner’s office in the U.S.;

The beneficiary is and will be employed by petitioner and will work under its direction and control; The depth and breadth of the beneficiary’s individual contributions to the project to which he would be

assigned is more highly evolved than that of others within their company; and The qualifications of the beneficiary to perform the proposed duties are unique and elevated enough to

constitute specialized knowledge.

28 Supra, note 11.



The petitioner received an RFE requesting the following information: The contract between the petitioner and the client.

The contract was provided clearly stating that the client had hired the petitioner as a consultant and that no employee relationship exists. The fact that the contract was dated several years previous to the petition filing reflected the strength of the relationship between petitioner and its client and supported the conten-tion that the petitioner has been involved in the development of proprietary systems for the client over many years and that the individuals employed in India, including the beneficiary, have specialized knowl-edge of the project which cannot be developed by another individual without extensive time in India. The addendum to the contract was highlighted to show that the petitioner was solely responsible for hiring and firing individuals employed by petitioner on this project and that the beneficiary’s work would be 100 percent supervised by petitioner, both by managers on-site at the project as well as supervisors at the de-sign center in India and by personnel at the corporate headquarters in the U.S.

Explain how the employee’s knowledge is “advanced” in relation to other employees or that the beneficiary’s knowledge may be differentiated in any way from similar positions at other companies.

As a member of the offshore development team in India for nearly three years beneficiary has expertise on its business processes, the client’s specific requirements and design needs, and has managed the im-plementation specific to this project. The petitioner stated that the technical knowledge that the benefici-ary possessed with respect to the client’s systems was critical to develop this next generation framework. He had gained this specialized expertise as a result of being a key stakeholder in the design and develop-ment of the first generation of this project. Further, the technology is quite unique, only an unusual spe-cialist possesses the technology, and it was restricted largely to the products offered by this particular cli-ent. Lastly, petitioner argued that the requisite experience needed to perform this work would not reside in the general marketplace and is limited to those, like the beneficiary, with specific knowledge.

Describe the unique methodologies, tools, programs, and/or applications that the company uses. The petitioner described what is required to design and enhance the databases and explained that benefi-ciary has managed and maintained all database objects and was responsible for deploying product re-leases through Quality Control, Staging, and Production environments for the development work for this client.

Indicate whom the beneficiary directs. The petitioner answered this in its response letter in detail.

Submit evidence that the beneficiary’s knowledge is different from other workers and therefore is uncommon, noteworthy or distinguished by some unusual quality and not generally known by practitioners in the benefi-ciary’s field of endeavor.

The petitioner highlighted the beneficiary’s experience in security administration, data analysis, database design, data modeling and optimization, diagnosis and correction performance problems, disaster recov-ery planning and execution, gained while working on client projects, coupled with his knowledge and ex-perience in software security prior to joining petitioner, all of which provided the beneficiary with a very high degree of specialized knowledge required for this project, which is advanced beyond that of other employees. The requisite experience needed to perform this work would not reside in the general market-place because the technology itself is unique and restricted to the products offered by the client.

Clarify the impact on the business if the petitioner is unable to utilize the beneficiary’s services in the U.S. The petitioner argued it would be severely impacted if they were unable to utilize beneficiary’s services on this project. The client specifically requested beneficiary’s services, and without his participation in the implementation project, there would be severe delays which would result in a substantial financial loss to petitioner.

How many other L-1B nonimmigrant workers are employed by the petitioner in the United States? With multiple, concurrent projects in the United States, 16 of the petitioner’s 350 employees had been granted L-1B status. Petitioner stated that only two of these individuals were currently in the U.S. work-ing on the same implementation project.



Please identify the manner in which the beneficiary gained his specialized knowledge including training (both formal and in-house).

Petitioner explained that beneficiary was not provided with formal, in-house training. Instead, when de-termining which individuals are required on a particular project site petitioner relies on the experience that they have to meet the challenges of the individual assignment based on education, experience and expertise in the specific technologies and skills required.

This case was denied. Lessons Learned/Documentation to be Included

In the past the petitioner’s letter alone, or with the inclusion of the employer’s contract, would have been sufficient for an L-1B approval29. Recent RFEs such as the one summarized above, and out-right denials, highlight the difficulty faced by practitioners today given the focus on tighter standards and additional restric-tions. The new trend in denials indicates that a detailed letter from the employer with no primary evidence is of little probative value. To overcome this new reality it is recommended that the initial submission be well documented and that the following suggestions be incorporated into the petitioner’s own process when devel-oping and assembling the supporting documentation. Be very clear in defining the company’s advanced technology and the alien’s specialized knowledge. De-

scribe the industry, the participants, the work performed (by whom and for what purpose), and petitioner’s role within the industry. Use company literature (website, news releases product lists, contracts) to estab-lish that the company’s technology and methods are different from that found in the industry. Define all terminology.

Document exactly how the petitioning organization’s procedures, techniques, tools, and products are so ma-terially different from similar software development processes and procedures that a similarly experienced and educated software worker could not perform the duties of the position abroad and in the U.S.

Describe how and why the knowledge possessed by the beneficiary is not general knowledge held com-monly throughout the industry or petitioner’s organization and how and why it is truly special or ad-vanced. Include documentary evidence to support the claim. Product lists, website experts or newspaper articles about breakthroughs could all be helpful.

Detail beneficiary’s number of years of work experience with employer, and experience in total. USCIS has been denying cases where the beneficiary has had a limited number of years experience (the feeling being that specialized knowledge takes years to develop) with petitioner but has approved cases where documentation supports several years of advanced knowledge prior to joining petitioner.

Explain how the U.S. entity functioned up to this date without the beneficiary and why the individual must be transferred to the U.S. company now. Fully describe any changed circumstances (new office creation; expansion of existing office; product launch; implementation; new marketing campaign; extensive training program for new users, etc.).

Use expert opinions to show the company’s distinct technology and methods of doing business. These may include professional associations, competitors or colleagues, former employers, industry recruiters, or education/evaluating companies.30

Submit proof that the client purchased and received the petitioner’s product or service (i.e. copies of pur-chase order and proof of payment to the provider) to show the entities are distinct and that the product generates significant sales.

29 AFM, Ch. 32.3, which notes, “To document the alien's employment abroad and the alien's intended employment in the United States, a letter signed by an authorized official of the petitioner describing the prospective employee's employment abroad for the requisite one year and the intended employment in the United States, including the dates of employment, job titles, specific job duties, number and types of employees supervised, qualifications for the job, level of authority, salary, and dates of time spent in the United States during the qualifying period.” 30 For an excellent list of questions to provide the expert see D. Hammond, “L-1B Specialized Knowledge: Lessons Learned in Making the Case,” Immigration & Nationality Law Handbook 134 (AILA 2007–08 Ed.).



Submit a copy of the contract beneficiary will be working on. If the contract doesn’t contain information specific to the terms and conditions of the alien’s employment, consider an addendum signed by a repre-sentative of petitioner and the offsite employer that establishes: – Who retains the authority to hire and fire the person performing the duties of the position and who is

responsible for administering the beneficiary’s time and pay; – To what degree the beneficiary will be controlled and supervised by the offsite employer compared to

petitioner; – How many of petitioner’s employees are at the unaffiliated worksite. Describe the petitioner’s supervi-

sion and management structure for employees who are at non-affiliated worksites; and – By what means will petitioner supervise and control the alien worker and the work he or she performs,

at the worksite. Case Study 2: Field Service Technician – Training and Experience

Proposed job duties: Coordinating installation activities related to equipment supplied by petitioner and acting as an on-site rep-

resentative for petitioner; Performing customer service check-points on equipment and installing petitioner’s equipment to engineer-

ing based standards; Performing check-out and commission on petitioner’s equipment at customer facilities and assuming a

leadership role in floor tests; Providing customer technical assistance in the troubleshooting and servicing of petitioner’s equipment and

troubleshooting designs during checkout; Acting as a liaison to customers during machine installation and start-up phase; Participating in pre-checkout meetings with production personnel and coordinating final sign-off prior to

shipment; and Providing feedback on training manuals.

The ensuing RFE indicated that a “Review of the file and initial evidence submitted indicates that the beneficiary has extensive knowledge of proprietary and custom designed machinery. However, USCIS was not persuaded that the beneficiary had obtained specialized knowledge above any other employee who has or will be performing on the same project.”

Petitioner responded by providing: Information regarding petitioner’s Proprietary Equipment; Information regarding training; Training certificates; Contracts which beneficiary worked on, detailing scope of work performed; Spreadsheet detailing beneficiary’s work assignments abroad; and Contract under which beneficiary was to be assigned.

The petition was approved. Lessons Learned/Documentation to be Included Submit evidence of the type of training courses taken (both in-house and outside), the duration of the

courses, the number of hours spent taking the courses, and certificates of completion, if available. Indicate the minimum amount of time required to train an employee to fill the offered position. Provide detailed information addressing the length and substance of the training and its availability to the

petitioning organizations’ workforce, so that USCIS can conclude that the purported specialized knowl-edge would be significantly economically inconvenient to impart to similar workers.



State how many workers petitioner similarly employs and provide documentation as to how many have received comparable training. If possible, explain in detail how the beneficiary’s training differs from the training provided to other employees who have worked for the same amount of time. Compare and con-trast employee credentials. If possible discuss why the beneficiary was selected from those trained (i.e., particular expertise, others cannot travel to the U.S. because of family commitments, on other assignment).

State how and why the alien’s knowledge cannot be easily taught to a U.S. worker. Establish the economic harm and business interruption the company would face if required to train a U.S. worker (a copy of the contract or proof of sales associated with the contract or the product in which it is used may help).

Establish the safety or public interest ramifications if the company had to train a U.S. worker. Provide training manuals with translations if in a foreign language. Describe the beneficiary’s prior assignments abroad accompanied by independent verification of employ-

ment including pay stubs, or letter from overseas employer. Consider obtaining reference letters from prior worksites to verify expertise of individual on specific

equipment. Submit awards, recommendation letters, and performance reviews.

Case Study 3: IT Business Solution Analyst – Integrating Petitioner’s Global Systems Proposed job duties:

Designing and developing a global, cross-business Process Stream of responsibility within SAP; Utilizing cross-functional knowledge to coordinate and work with other team members; Participating in a cross-functional program development team; Utilizing specialized knowledge and experience related to product data management, product documenta-

tion systems and SAP to help define scope and implementation of the global, cross-business process stream;

Performing overall program execution; Participating on a cross-functional team established for the purposes of developing the system; Working to progress toward pre-established objectives, assess risk and implement strategies to ensure suc-

cessful delivery of the program/project; Deploying team resources to meet program objectives; Maintaining effective communication with the Process Executive, team members and functional leader-

ship in all activities; and Leveraging past experiences and knowledge to advise on optimal solutions for development of a competi-

tive management system. The services were required on an intermittent basis at the company’s corporate headquarters. Petitioner provided:

Information about petitioner’s prior global SAP enhancements and how beneficiary’s services will be re-quired for next stage implementation;

Information on how each manager/employee was identified for participation in various stages of imple-mentation; and

Annual report to show size and scale of employer. The initial petition was submitted as a blanket L directly at the consulate and was approved.

Lessons Learned/Documentation to be Included Define the project in detail and describe why this beneficiary was selected. If part of a team define the

other members, especially if they are subject matter experts with regard to their particular grouping, par-ticularly with regard to the company’s proprietary methods and procedures.



Explain why beneficiary’s skill set is not available throughout the industry or within the petitioner organi-zation.

Emphasize the alien’s knowledge of the company’s integrated, worldwide operating procedures. Demonstrate the alien’s prior significant assignments abroad. Describe phases of project and milestones already reached due to beneficiary’s skills and knowledge. Emphasize the importance of integrating and coordinating U.S. operations with multinational business

structure. Explain how the company has established rigorous quality control and quality assurance programs to en-

sure compliance with its international standards and operating procedures. Document how project will measure company efficiency to allow for continued growth in business and

operations. State whether beneficiary will stay on foreign payroll and if assignments in U.S. will be required on an

intermittent basis. Consider the use of a blanket L, if petitioner qualifies.

In the past it was sufficient for a petitioner to re-state the regulatory language, submit an employer state-ment, and minimal documentation. That is no longer enough in a new era of heightened scrutiny that demands full documentation of specialized knowledge by providing objective evidence that permits an adjudicator to differentiate between what is “general” and what is “specialized” knowledge.

THE POSSIBLE DEMISE OF THE L-1A FUNCTIONAL MANAGER Much like the L-1B specialized knowledge category, the L-1A visa category for functional managers is

also facing heightened scrutiny. Some might even say that the L-1A functional manager is actually a dy-ing breed, as approval of L-1A petitions for functional managers has become increasingly difficult.

When the L-1 regulations were enacted, it was acknowledged that not all companies have a traditional or-ganizational structure, i.e. where managers have a number of direct reports in a clear organizational hierarchy. It seemed clear that one could still be a manager, even without a single direct report, if the person was ac-corded a certain level of managerial responsibility for managing a key and essential function of a business. While the regulations contemplate a fairly broad definition of the word "manager,” there is a growing trend at the USCIS Service Centers to discount the managerial nature of the work of functional managers and to deny any L-1A petition for an individual who manages a function of the business instead of a subordinate staff. Practitioners are being bombarded by RFEs for functional manager L-1 petitions in such high numbers that many practitioners question whether a functional manager can be accorded L-1A status anymore or whether only those managers with a certain number of direct reports, in a large company with a more tradi-tional organizational structure, can be accorded L-1A status. Definition of "Functional Manager"

Under the regulations stated above, an individual can qualify as a "manager," even if he or she has no di-rect reports, if the individual is functioning in an essential managerial capacity, with managerial responsibility for a particular department, division or business unit.31

In a 2006 USCIS memorandum, additional guidance was provided about what additional factors should be considered by USCIS in determining whether a transferee qualifies as a functional manager.32 Some factors to be considered include the following:33

31 8 CFR §214.2(l)(1)(ii)(B). 32 USCIS Memorandum, M. Aytes, “AFM Update: Chapter 22: Employment Based Petitions” (Sept. 12, 2006), published on AILA InfoNet at Doc. No. 06101910 (posted Oct. 19, 2006). (Note that while the discussion in this USCIS memorandum is focused on employment based first preference immigrant petitions, the definition of a manager in this employment based im-migrant visa category is analogous to the definition of a manager in the L-1 context.). 33 Id.



Whether the transferee will have the authority to initiate and veto activities relating to the function man-aged;

Whether the transferee will have the authority to provide managerial guidance to employees “outside the formal chain of command;” and

Whether the transferee will have the authority to commit the company, department, or division “to a course of action or expenditure of funds.” In this memorandum, Michael Aytes, then Acting Associate Director, Domestic Operations, for USCIS,

underscores the fact that it must be clearly demonstrated that functional managers are directly managing an essential function, and that the alien is not also directly performing the function being managed. He gives as an example an individual who claims to primarily direct the laboratory research on chemical compounds for a specialty chemical company. In this example, Mr. Aytes indicates that the individual is not working in a managerial capacity if he also primarily performs the day-to-day laboratory research.34 Are L-1A Functional Managers Really a Dying Breed?

While obtaining approval of an L-1A petition for a functional manager has never been a simple task, heightened scrutiny of these petitions by the Service Centers has made securing approval of these petitions an uphill battle. Practitioners and AILA Service Center Liaisons report that the Service Centers are issuing very detailed RFEs for even strong functional manager cases, and denials of these petitions have steadily in-creased. Thus, practitioners need to carefully reexamine the way they prepare these petitions, with an eye to-wards submitting a strong, well-documented case with the initial petition. Gone are the days of providing a basic overview of the individual's job duties, or relying on a managerial job title and high salary to ensure approval of the petition. Much more detail and substance is required to secure approval of an L-1 petition for a functional manager. In addition, practitioners need to be prepared to respond to very detailed and exhaustive RFEs, and similarly need to be prepared that the AAO will not necessarily take pity and approve the appeal of a denied L-1 petition for a functional manager. In fact, the AAO has consistently upheld the decisions of the Service Centers over the past year.35 Requests for Evidence: What to Anticipate

As indicated above, practitioners from around the country are reporting that they are receiving lengthy RFEs for a significant number of their L-1A functional manager petitions. These RFEs are typically very long and detailed and include certain boilerplate questions, include the following: Employees in the United States: Indicate the total number of employees at U.S. location where the benefi-

ciary will be employed. U.S. Business Organizational Chart: Submit a copy of the U.S. company’s line and block organizational

chart describing its managerial hierarchy and staffing levels. If the company is very large then please sub-mit a copy of the divisional organization chart in which the beneficiary is employed. The chart should in-clude the current names of all executives, managers, supervisors, and number of employees within each department or subdivision. Clearly identify the beneficiary’s position in the chart and list all employees under the beneficiary’s supervision by name and job title. Also include a brief description of job duties, educational level, annual salaries/wages (in U.S. dollar equivalents) and immigration status (L-l, H-1B, B-l, E-l, E-2, F-l, permanent resident, citizen, etc.) for all employees under the beneficiary’s supervision. Fi-nally, explain the source of remuneration of all employees and explain if the employees are on salary, wage, or paid by commission.

34 Id. (noting that “[i]t must be clearly demonstrated, however, that the ‘essential function’ being managed is not also being directly performed by the alien beneficiary.”). 35 Note that the AAO typically cites Ikea U.S, Inc. v. U.S. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D. C. 1999) for the princi-pal that the absent a very clear and credible breakdown of time spent by the beneficiary performing his duties, the AAO cannot determine what proportion of duties will be managerial, nor can it deduce whether the beneficiary will perform the duties of a function manager. See, e.g., In matter of name not provided, (EAC-07-087- 52417) (AAO Feb. 1, 2008).



Duties in the U.S.: Submit a more detailed description of the beneficiary’s duties in the U.S. Be specific. In-dicate exactly whom the beneficiary directs including their job title and position description. List all employ-ees under the beneficiary’s direction. Also, indicate percentage of time spent in each of the listed duties.

Quarterly Wage Report: Submit copies of the U.S. company’s state quarterly wage reports for all employ-ees for the last four quarters. The forms should include the names, social security numbers, and number of weeks worked for all employees.

Payroll Summary: Submit copies of the U.S. company’s payroll summary, W-2’s and W-3’s evidencing wages paid to employees.

Strategies for Responding to Requests for Evidence One might be tempted to reply to the RFE with a note to the USCIS adjudicator including a smattering of

expletives and asking why such difficult and sometimes irrelevant questions are being asked. After that thought passes, take a deep breath and determine how to best present the response in the clearest and most convincing manner. Here are a few tips on how to effectively respond to such an RFE: Provide easy to understand organizational charts that clearly indicate the individual’s role in the organiza-

tion. Do not assume that an examiner can look at a sloppy or confusing chart and understand the nature of the individual’s role. It is also helpful to show the job titles and job duties of those less senior to the indi-vidual to demonstrate the individual’s level of responsibility in the organizational hierarchy and how the functional manager will be able to focus on managerial duties. Many practitioners are now routinely sub-mitting these detailed organizational charts with the initial petition, which is an excellent strategy. Do not be surprised, however, if USCIS still issues an RFE, and asks for this information again.

Do not simply repeat or paraphrase what was stated in the initial petition. In Service Center and AAO de-nials, this is often cited as a reason for a denial. Provide additional detail, even if it may be painful to drag out of your client, to meet the burden established in the RFE.

Give concrete and specific examples of the individual’s managerial responsibility. Do not give a vague job description that speaks in generalities about the individual’s job duties. For example, providing specific monetary estimates of budgets, investments, projects, or cost savings can demonstrate the manager’s scope of fiscal responsibility.

Do not rely on a managerial title and high salary to guarantee approval of the petition. USCIS and the AAO are often not persuaded of an individual’s managerial role just by virtue of the fact that he or she has a fancy title or is accorded a high salary. Do not keep repeating the person’s title or salary in the response, without providing concrete information regarding the managerial nature of the assignment that substanti-ates why he or she has been given this title or high salary.

Fully respond to the RFE, even if the information seems irrelevant, and make sure nothing in the response is inconsistent. For example, USCIS often examines the financial documents requested, such as payroll re-cords, to determine if the information provided regarding the number of employees in the organizational charts is accurate. In addition, make sure the response does not ignore or discount any of the examiner’s questions, as this could result in a denial.

Other Hurdles: Extension of Status Challenges In the past, an L-1 extension for a functional manager was routinely granted, assuming the assignment had

not materially changed. Today, L-1 extensions for functional managers, particularly those coming to open new offices, are often challenged. A review of recent AAO decisions reveals that L-1 extensions are often denied when the petitioner submits very vague documentation, which does not clearly describe the manage-rial nature of the assignment, or in the case of extensions for new office L-1 beneficiaries, when the petitioner does not provide sufficient detail regarding how the organization has grown to warrant the continued services of the manager.36

36 See, e.g., In matter of [Name Not Provided], (EAC-07-077-52413) (AAO Feb. 28, 2008).



The main thing to keep in mind when filing an L-1 extension is that times have definitely changed. One cannot assume that an L-1A petition for a functional manager that worked three years ago (or even one year ago in the case of a new office petition) will receive a rubber stamp and be approved again. It is therefore wise to take the time to provide a detailed breakdown of the individual’s current job duties, organizational charts, and any other information that will help strengthen the petition.

It may appear that the functional manager is indeed on life support and about to take its final, rasping breath. However, as explained above, with careful preparation and detailed information from the client as well as per-sistence and creativity on behalf of immigration practitioners, this vital L-1 category may yet survive.

CONSULAR AND POINT OF ENTRY ISSUES FOLLOWING APPROVAL OF THE L-1 PETITION—ARE WE THERE YET?

While you and your clients might be tempted to heave a huge sigh of relief once the Form I-797 Notice of Approval has been received, it is important to remember that nothing is final until the beneficiary’s passport is returned from the U.S. embassy or consulate with a visa stamped inside. At many consulate posts, there is no automatic right to counsel in a nonimmigrant visa interview. Therefore, it is important that clients be well prepared to respond to the consular officer’s questions. While it may seem like a very basic reminder, attor-neys should review the petition documents and possible issues with the applicant before the interview to en-sure that the applicant understands the basic requirements for the L-1 visa classification. It is also important to advise clients not to take children out of school, sell the family farm or ship all their worldly goods to the United States until the visa has been received.

Just as USCIS adjudicators are reviewing petitions for specialized knowledge and functional managers with extreme suspicion, consular officers are also very leery of the L-1 classification – even after the petition has been approved! Consular officers routinely question just how “special” is the individual’s specialized knowledge and they are constantly on the look out for potential job shop situations, where the beneficiary will be working at a client site rather than the petitioner’s headquarters. In the case of an L-1A managerial peti-tion, the consular officer will want to know exactly how many people the applicant will be supervising and, as with USCIS, they are prejudiced against functional managers. It is not unusual for consular officers to exam-ine the petition documents and attempt to re-adjudicate the case. Applicants and their attorneys should assume that the consular officer will review the petitioner’s website and will question the beneficiary about the peti-tioner’s business as well as his or her specific role in the business.

Unfortunately, even applicants who apply for a Blanket L-1 visa directly at a U.S. consulate are now sub-ject to the same close scrutiny as applicants for the L-1 petition filed with USCIS. In days gone by it was common for Blanket L applicants to waltz into the consulate or embassy, hand over their passport and walk out again with a visa—no questions asked. Those days are over. Consular officers around the world are skep-tical of both specialized knowledge and functional manager petitions and applicants are routinely questioned in-depth about their proposed position. This is especially true at the consular posts in India, China and Russia. Although it is unlikely that applicants will be asked questions regarding the legal aspects of the petitioner’s corporate structure, they should expect questions regarding the internal hierarchy of the organization—especially if the applicant will be in a managerial position in the United States. For instance, he may be asked the name of his supervisor as well as questions regarding the managerial hierarchy of his proposed depart-ment or division and how many people he will supervise or direct. Specialized knowledge applicants can ex-pect in-depth questions about how they acquired their knowledge; how it is different from knowledge attained by other similar workers; and why they are needed in the U.S, etc. Bottom line, in today’s world, it is essen-tial that clients be well and truly prepared before they walk in the consulate doors for their nonimmigrant visa interview. Practitioners should prepare clients for the questions they might face and clients should read and understand the contents of the I-129S and the accompanying documentation. It is also advisable for applicants to bring documentation to the interview that establishes their one-year employment with the foreign entity. Such documentation may include payroll stubs or recent tax returns. A copy of their employment contract or offer letter may be sufficient if none of the other records are available.

Because there are more than 75 U.S. embassies and consulates around the world, it is strongly recom-mended that attorneys review individual post websites for important substantive and procedural details. Web-



sites for each embassy, consular post, and diplomatic mission can be accessed at http://usembassy.state.gov. In addition, AILA’s Visa Processing Guide37 can provide a wealth of information.

Finally, the day of travel has arrived. You have survived the gauntlet of the USCIS adjudicator and your client has successfully responded to all the consular officer’s questions. The newly minted passport is handed over to the officer from Customs and Border Protection (CPB) at the point of entry into the United States with high anticipation and excitement. It will be a simple matter of “welcome to the United States” and “enjoy your stay.” Right? Well, maybe…maybe not. Clients should be well prepared to answer questions at the point of entry too, especially individuals from India and China. They may be asked the name of their future boss; where their office is located; and what exactly they will be doing for the company. Lady Liberty still stands erect to welcome visitors and non-immigrants to the United States, but now the tablet she holds in her hand is filled with a very long list of questions.

DOWNSIZING ISSUES—WHAT IS ALLOWED AND WHAT DO YOU NEED TO DISCLOSE The recent economic crisis brought about by a combination of a weak housing market and credit crunch has

companies, large and small, again engaging in large scale staff reductions and reductions in salary or hours. Not since World War II has the U.S. job market experienced such dramatic losses.38 In part, this article stands on the shoulders of a 2002 article by Naomi Schorr and Stephen Yale-Loehr which examined the effects of a 20% re-duction in pay and hours for a variety of nonimmigrants including L-1s.39 However, it goes beyond to address disclosure in situations where the cuts may be greater. In addition, as the U.S. workforce is trimmed, multina-tional employers may look to “borrowing” workers from international subsidiaries or affiliates, filing intermit-tent L-1 petitions in lieu of adding to U.S. headcount. These workers may often remain on the foreign entity payroll, at a considerable differential from U.S. hires. Finally, the personnel supervised by L-1A managers may have been laid off, inviting the question whether the managerial classifications can still attach. These activities present issues the immigration practitioner has not had to deal with in a few years. Moreover, they present judgment calls that must be made in the fog of missing or equivocal regulatory mandates. Hours Reductions

A common cost savings measure for a company experiencing economic challenge is to reduce the number of hours employees work. That is accomplished by reducing the workweek by a number of hours for hourly workers and by reducing the percentage of time a salaried employee is expected to work (e.g., reduce to a 75% work schedule for 75% pay). In either case, practitioners must determine whether the actions are legal under existing immigration laws and whether any affirmative disclosure to USCIS is required.

Schorr and Yale-Loehr have previously considered the quandary of whether L-1s may actually work part time at all. While the regulations are clear that to qualify for L-1 status one year of full-time employment is required, no clear regulatory mandate exists for fulltime prospective U.S. employment.40 Instead, a patchwork of guidance from the legacy INS Operations Instructions, the Foreign Affairs Manual, and INS and USCIS correspondence, seems to suggest that part time employment is acceptable under certain circumstances: Code of Federal Regulations: The CFR provides an exception for L-1s who do not reside full time in the

U.S. or commute to the U.S. for part-time employment. An exception to the five and seven year period of stay limitations is provided for “aliens who do not reside continually in the United States and whose em-ployment in the United States is seasonal, intermittent, or consists of an aggregate of six months or less

37 The Visa Processing Guide and Consular Posts Handbook, eds. C. Miller et al. (AILA 2008–09 Ed.). 38 C. Isidore, “Job loss: Worst in 34 years,” CNNMoney.com, Feb. 6, 2009, available at http://money.cnn.com/2009/02/06/news/economy/jobs_january/. 39 N. Schorr and S. Yale-Loehr, “Corporate Cuts: Reductions in Pay and Hours for Nonimmigrants,” Immigration & National-ity Law Handbook 1 (AILA 2002-03 Ed.), 7 Bender’s Immigr. Bull. 409, 417-420 (Apr. 15, 2002). 40 8 CFR §214.2(l)(3)(iii) Evidence that the alien has at least one continuous year of full-time employment abroad with a quali-fying organization within the three years preceding the filing of the petition.

http://usembassy.state.gov/

http://money.cnn.com/2009/02/06/news/economy/jobs_january/



per year. In addition, the limitations will not apply to aliens who reside abroad and regularly commute to the United States to engage in part-time employment.”41

Operations Instructions: The OIs allow part time employment so long as a "significant portion" of the L-1 employee’s time is spent in "productive employment" performing executive, managerial, or specialized knowledge duties on a regular and systematic basis.42

Foreign Affairs Manual: According to the guidelines for Department of State Consular Officers world-wide, U.S. employment can be spread amongst various entities in the L-1 qualifying organization on a part time basis to equate to 100% employment, including employment only part time in the U.S. entity.43

Legacy INS Weinig Letter: While letters to immigration attorneys are of less legal value than regulation or headquarters’ memoranda,44 in 1988 legacy INS advised that an L-1 nonimmigrant who was in the United States as the president of an Arizona corporation could pare his time down with that firm to concurrently serve as president of another affiliate company. The Service response was affirmative: “[P]art-time em-ployment with more than one corporation of the same international organization is permitted under our regulations.”45

USCIS Hernandez Letter: In 2004, USCIS advised that an L-1B employee “who has been granted mater-nity leave, may return to work on a part-time basis with the intention of gradually returning to full-time employment.”46 The response was clearly couched as an accommodation for Family and Medical Leave Act requirements.47 These points suggest that an L-1 petition can indeed be filed for a U.S. position that is not full time. The

next question, especially in tough economic times, is whether a formal disclosure of the change to USCIS is required, such as filing an amended petition to notify the Service of the reduction in hours. The authors of Corporate Cuts point out that an amended petition needs to be filed in most H-1B hours or wage reduction cases. Little has changed since 2002, and DOL has made it very clear that the hours and wages listed on the H-1B petition need to be paid in its Administrative Review Board decisions regarding the benching provi-sions.48 The mandate for L-1’s is less than clear.

The regulation specifies that a “petitioner shall file an amended petition, with fee, at the Service Center where the original petition was filed to reflect changes in approved relationships, additional qualifying or-ganizations under a blanket petition, change in capacity of employment (i.e., from a specialized knowledge position to a managerial position), or any information which would affect the beneficiary's eligibility under section 101(a)(15)(L) of the Act.”49 The Corporate Cuts analysis advises that an L-1 amendment would “pre-

41 8 CFR §214.2(l)(12)(ii). 42 INS Operations Instructions §214.2(l)(5)(ii)(B). 43 The Foreign Affair’s Manual (FAM), the guideline for the State Department, authorizes the performance of 100 percent L activities but at more than one location: “[W]hile full-time employment by the beneficiary is anticipated, INA §101(a)(15)(L) does not require that the beneficiary perform full-time services within the U.S. An executive of a company with branch offices in Canada and the U.S., for example, could divide normal work hours between those offices and still qualify for an L-1 visa.” 9 FAM 41.54 n.8.5. 44 INS Memorandum, T. Cook, “Significance of Letters Drafted by the Office of Adjudications,” (Dec.. 7, 2000). Despite Mr. Cook’s admonishment, the author has found that the use of such letters can still be highly effective at times with individual adjudicating officers. 45 Letter from L. Weinig, Deputy Assistant INS Commissioner, Adjudications, to attorney Nancy-Jo Merritt (Dec. 18, 1987), reprinted in 65 Interpreter Releases at 518-19 (May 16, 1988). 46 Letter from E. Hernandez, Chief, Business and Trade Services Branch, Office of Programs and Regulations Development, to attorney Gary Endelman (Mar. 9, 2004), published on AILA InfoNet at Doc. No. 04031165, (posted Mar. 11, 2004). 47 Id. 48 These decisions follow from the landmark back wages decision in Amtel Group of Florida v. Yongmahapakorn, ARB Case No. 04-087, ALJ Case No. 2004-LCA-006 (Sept. 29, 2006). For a sampling of these decisions visit the AILA InfoNet at: http://www.aila.org/content/default.aspx?docid=11197. See also P. Nallainathan, et.al., “Weighing When to Amend or Terminate H-1B Petitions,” Immigration & Nationality Law Handbook 76 (AILA 2007–08 Ed.). 49 8 CFR §214.2(l)(7)(i)(C).

http://www.aila.org/content/default.aspx?docid=11197



sumably” not need to be filed for a 20% reduction in hours. The authors point to a 1992 policy memorandum from James J. Hogan, INS Executive Associate Commissioner for Operations (Hogan Memo), to the field, which notes that an amended petition must be filed only when there is a "material" change in the terms and conditions of employment. The Hogan Memo cautioned that the amended petition procedure was "not de-vised merely as an avenue to advise the Service of minor changes in the conditions of employment." Schorr and Yale-Loehr correctly noted that in setting forth those changes in the L setting that he deemed to be "mate-rial," Mr. Hogan did not mention “changes in the number of hours worked or the salary paid.”50 They also note that in the Weinig letter case where the executive would assume a concurrent position at another U.S. affiliate company, Weinig advised that the reduction in hours at original site would not prompt the require-ment to file an amended petition.51

Forgetting that Corporate Cuts limited its analysis to only a 20% reduction in hours, some may read the above as an indication that an amended petition is never required for L-1 reductions in hours. Unfortunately, the Weinig letter is a very unusual fact pattern—the facts clearly suggest that despite the reduction in hours for the company’s president at the first U.S. L-1 qualifying entity, additional hours are being added at a sec-ond qualifying entity, with possibly a zero net loss. This article suggests caution in factual analysis, more pru-dent today than in 2002 in light of the anti-fraud investigatory powers created by the L-1 Visa Reform Act of 2004,52 which mandates a $500 fraud fee on each initial L-1 petition and Blanket L-1. These revenues fund USCIS and DOS investigations, including site visits.53 On the site visits the USCIS Fraud Detection and Na-tional Security (FDNS) Officer interviews both the L beneficiary and the company representative who en-dorsed the L petition to determine if all the terms and conditions listed in the petition are being fulfilled.54 Employees may be asked for copies of W-2s.55 Each petition is signed under a penalty of perjury, and a find-ing of fraud in one case could result not only it a revocation of said case, however one can only imagine how it could lead to a more lengthy investigation of the employer’s other L-1 visas. Practice Pointers

Given the enhanced risk of investigation, a conservative approach when faced with such a situation would be to suggest a case-by-case analysis, explaining to an employer that material changes need to be disclosed, and then review with the petitioning company whether or not the suggested reduction in hours, along with any other concurrent changes, might represent a substantial departure from what was stated on the original petition.

If the decision is made to file an amended petition, the I-129 petition could list “part time” and a minimum number of hours, and indicate an hourly salary in the “wages” box towards the right. For Blanket L cases, generally the same approach would apply if the employee was already in the U.S. While the conservative point of view would be to avoid making the change in hours until the amended petition is approved, a combi-nation of legacy INS advisory letters as well as anecdotal experience suggests that USCIS might be forgiving in such matters.56

As an aside, for relatively minor reductions in hours for an L-1, might it be possible to avoid the issue en-tirely? There are key technical differences to note between the I-129 petition and the I-129S certificate of eli-

50 “Corporate Cuts,” supra note 39. 51 “Corporate Cuts,” supra note 39, citing Weinig letter, supra note 45: “In this case,” Mr. Weinig stated, “a change in the number of hours which the intracompany transferee will be working at the first subsidiary is not significant enough to require an amended petition.” 52 INA §214(c)(2)(F). 53 INA §214(c)(12)(A). 54 For anecdotal details on these site visits, see the AILA InfoNet Message Center, Business Immigration, Nonimmigrant Vi-sas, L-1s, thread entitled “L-1 CIS Fraud Detection Visit to Office.” 55 Id. 56 For an excellent discussion of the timing topic see: “Corporate Cuts,” supra note 39, citing Letter from Y. LaFleur, then-Chief of the Nonimmigrant Branch, INS Office of Adjudications, to S. Cohen, File No. HQ 214h-C (Oct. 12, 1995), reprinted in 72 Interpreter Releases 1600-01 (Nov. 20, 1995) (“[T]here is nothing in the current regulation which specifies when the amended petition should be filed. Therefore a petitioner would not be penalized for filing an amended petition after the occur-rence of the material change.”).



gibility used for blankets. In the I-129 universe, a position is either full time or part time. “Full time” can en-compass a company-defined range, which in the United States is generally 32-40 hours per week. If an or-ganization has a definition of full time that is less than 40 hours a week, yet still reasonable, perhaps it should be honored. For example, it is quite reasonable for an employer to insist that employees work at least 32 hours a week to maintain a full time status and eligibility for benefits. When entering the I-129S form frame-work, there is instead a simple question, “hours per week” and a blank box to fill out. Presumably many prac-titioners may assume they should write “40” in that box. However, it may well behoove them to confirm with the petitioner how full time is defined. If the definition includes less than 40 hours per week, they may wish to instead write in “full time” for more flexibility. Salary Reductions

Salary reductions are often another necessity for companies to survive times of economic uncertainty. However, unlike the H-1B there is no “prevailing wage” or “actual wage” requirement for an L-1 petition, nor is an LCA required. On the one hand, case law establishes that an L-1A executive is not required to receive a U.S. salary.57 On the other, in 2003 a Business Week article started a firestorm of interest in the lack of salary restrictions on L-1B workers, seeking to connect it with layoffs in corporate America due to “outsourcing.”58 The concerns caught the attention of Congress and resulted in the L-1 Visa Reform Act of 2004, which set limits not on the salary of the workers, but instead instituted a straightforward “anti job-shopping” require-ment that an L-1B worker needs to remain under the employment and control of the petitioning company’s managers.59 The imposition of LCA wage requirements on L-1 workers has been often raised in Congress; however, such legislation has consistently failed to pass.60 Practice Pointers

When faced with a salary reduction situation, first look at the facts and see if there is even an issue. If the salary was stated as an annual amount, quite often the amount listed on the I-129 may have been surpassed due to annual compensation reviews, such that even with the new reduction, the reduced amount is still above the stated wage. On the other hand, if the employee is new, or has not received compensation increases, the amount may be lower. It is advisable to carefully review the various changes that have occurred (or may oc-cur) in the terms and conditions of L-1 employment, and consider whether they are a material departure from the original petition. A simple notification to USCIS in the form of an amended petition would protect the petitioner against allegations of fraud, and a more in-depth investigation. Layoffs and Reductions in Force

Another reality of the current economy is layoffs. L-1 employees will presumably not be spared. Unfortu-nately, there is no clear regulatory guidance about what an employer needs to do, if anything, when releasing an L-1 beneficiary. With the Amtel decision,61 DOL made it abundantly clear that it will assess back wages until the date of the notification of the termination to USCIS, however there is no back wage penalty motivat-ing an L-1 petition withdrawal. There is a mandate to file an amendment for “any information which would affect the beneficiary's eligibility under section 101(a)(15)(L) of the Act;”62 however a notification of termi-nation is not an amendment, it is simply a notification. Despite this, USCIS officers continue, in the course of boilerplate L-1B RFEs, to request details of L-1 petition withdrawals.63

57 Matter of Tessel, Inc., 17 I&N Dec. 631 (Jan. 9, 1981) (“An unsalaried appointed chairman of a corporation is an employee in a managerial or executive position.”). 58 B. Gow, M. Kripalani, “A Loophole as Big as a Mainframe,” Business Week, Mar. 10, 2003, pp 82-83. 59 USCIS Memorandum, W. Yates, “Changes to the L Nonimmigrant Classification made by the L-1 Reform Act of 2004,” (July 28, 2005), published on AILA InfoNet at Doc. No. 05080566 (posted Sep. 23, 2005)". Excerpts from the AFM regarding L-1s are included, published on AILA InfoNet at Doc. No. 080566 (posted Aug. 5, 2005). 60 CRS Report for Congress, “Immigration Policy for Intracompany Transfers (L Visa): Issues and Legislation,” (Oct. 24, 2005), published on AILA InfoNet at Doc. No. 05102765 (posted Oct. 27, 2005). 61 Amtel Group of Florida v. Yongmahapakorn, supra note 48. 62 8 CFR §214.2(l)(7)(i)(C). 63 Examples on file with authors.



Practice Pointer While clearly there is no legal mandate for withdrawing L-1 petitions, certain companies will wish to es-

tablish a coordinated system of notifications across the board, to ensure that former beneficiaries do not util-ize their L-1 visas for re-entry. In such cases, a simple letter noting the employee termination can be sent to USCIS and a copy kept for the employee’s immigration file. Employee should also be notified of such a withdrawal policy, such that they are apprised of the possible inability to change or extend status if the peti-tion is withdrawn. Intermittent L’s and Comparatively Low Foreign Salaries

Another phenomena that began in the 1990s and may only increase as companies are forced to move key re-search and development operations out of the U.S. due to the unavailability of U.S. visas for foreign profession-als, is the use of intermittent L-1 employees who remain on the foreign entity payroll for U.S. assignments. Not since 1974 has the payment of an intracompany transferee on the payroll of the foreign subsidiary been an issue for visa eligibility.64 However, the fact that a foreign salary is allowed does not eliminate the ground of visa in-eligibility under the public charge provisions.65 While an annual wage of USD $10,000 per year might be con-sidered quite respectable for an entry level professional in certain regions, such as India or China, the costs of living in the United States are so great that this amount would not meet the poverty guidelines.66 Practitioners have reported anecdotal L-1B visa denials in such circumstances at the U.S. consulates in India.67 Practice Pointer

To avoid rejection in the case of a comparatively low foreign salary, it behooves practitioners to help the consular officer (or USCIS adjudicator) better understand all sources of financial support in the U.S. More often than not, these intermittent L workers will not need to spend their own salary on any living expenses while in the U.S. The employer will arrange for housing, per-diem, transportation and other expenses for the entire period of U.S. assignment. Bringing these cost of living allowances and accommodations to the atten-tion of an adjudicating officer or consular representative, is critical. As a practice pointer, the use of an aster-isk on the I-129 or I-129S next to the foreign salary amount (in foreign currency) will allow for a reference to a footnoted statement explaining the value of the U.S. maintenance package. Of course, as globalization con-tinues, this issue may eventually pass away as salaries in India and other countries catch up with U.S. salaries. L-1A Personnel Manager to Functional Manager

Another effect of reductions in workforce personnel is that lower level staff may be terminated, while sen-ior managers are retained. An L-1A manager may be expected to cover not only her job, but also the jobs of the lost subordinate employees. Because she is no longer managing any employees, need an amendment be filed? Not necessarily. According to the Hogan Memo, which is clearer on the question of managerial capac-ity than on wages, “changes from one managerial position to another do not require an amended petition.”68 Thus, if the beneficiary is still in a managerial position, the change in duties would not require an immediate disclosure to USCIS, just an updated statement of information when the extension is filed. Of course, the lynchpin of this argument is that the position itself is still managerial. Therefore, she would need to continue

64 Matter of Pozzoli, 14 I&N Dec. 569, 574-75 (Reg. Comm'r 1974). 9 FAM 41.54 N9.1. 65 INA §212(a)(4), 22 CFR §40.41. In 1996, the Department of State issued a cable clearly noting there was no prevailing wage requirement, advising that consular officers must merely apply the public charge provisions. Cable, DOS, 96-State-75033 (1996), reprinted in 73 Interpreter Releases, 963–64 (July 22, 1996). 66 For 2008, $10,400 was the poverty threshold amount for a single individual. Department Of Health And Human Services, Office of the Secretary, Annual Update of the HHS Poverty Guidelines, Fed. Reg. Jan. 23, 2008 (Volume 73, No. 15) pp. 3971-3972. 67 The sources of such anecdotes are anonymous by request. 68 INS Memorandum by J. Hogan, (Oct. 22, 1992).



to manage a “department, subdivision, function, or component of the organization.”69 If a functional manager, she would need to manage an “essential function.”70 Practice Pointer

A fresh look at the key position details would be advisable to determine whether or not the former person-nel manager was now still a qualifying department manager, or the manager of an essential function (as dis-cussed in Section III above). Review of the qualifying details should be documented in writing (or by email) and retained the individual’s case file, in the event that concerns ever arise about the decision not to file an amended petition.

CONCLUSION You can look back and see winter as the end, or you can look forward and see it as the beginning of some-

thing new. While everything may seem frozen and lifeless in the winter, hidden from sight, underneath the coldness and stillness is the spark of life starting to grow and flourish. So too, can this winter of our discon-tent be not the end but the beginning for immigration practitioners and clients alike. It is an opportunity to reflect on our accomplishments and our ability to turn adversity into triumph. As with all effective representa-tion, it is the immigration attorney’s responsibility to consider all options with creativity and diligence. Dur-ing difficult economic times, this may require thinking “outside the box,” additional collaboration with the client, and more extensive documentation. Notwithstanding the current gloomy outlook for L-1 petitions, the well-considered and well-drafted case will continue to have a high probability of success.

69 8 CFR §214.2(l)(1)(ii)(B)(1). 70 8 CFR §214.2(l)(1)(ii)(B)(2).

L‐1 Checklist Position held with the organization abroad: Job Title: Dates in that position: Job Duties (or attach written job description): # of individuals supervised: # of supervisors/mngrs/professionals supervised: Essential function managed by the candidate: Position to be held in the U.S.: Name of U.S. organization: Job Title: Job Duties (or attach written job description): # of individuals supervised: # of supervisors/mngers/professionals supervised: Essential function managed by the candidate: Salary offered: Approx. value of benfits per year: Immediate supervisor’s title: Information about the candidate: Candidate’s full name: Foreign: Place of birth: ________________ Countries of citizenship: Has the candidate ever been to the U.S.? ______ If so, state type of visa, date and location (consulate) of issuance: U.S. consulate where candidate intends to apply for visa: For Canadian nationals, proposed place of entry:

Additional Documentation: Please provide the candidate’s email address

Please provide a copy of curriculum vitae of candidate.

Please provide a copy of all diplomas and transcripts (with translations, if

applicable). Please provide a copy of all stamped pages of passport(s).

If the candidate has ever been arrested or has had immigration problems,

please provide details and relevant documentation. If any family members will be accompanying the candidate, please provide

their full name(s), date(s) of birth, place(s) of birth and relationship(s) to the candidate.

2011 AILA Teleconference/Web Conference © 2011 American Immigration Lawyers Association

Paralegal Series, Part II: The Paralegal’s Role in Drafting the L-1 Petition

May 5th 2011

Additional Resources Statute - INA §101(a)(15)(L); 8 U.S.C. §1101(a)(15)(L). Regulations

• In general: 8 C.F.R. §214.2(l); 22 C.F.R. §41.54. • Definitions: 8 C.F.R. §214.2(l)(1)(ii); blanket petitions: 8 C.F.R.

§214.2(l)(4) • Filing Petitions, Evidence: 8 C.F.R. §214.2(l)(2), (3)

Other Government Resources

• 9 FAM 41.54 L-1As http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=64d34b65bef27210VgnVCM100000082ca60aRCRD&vgnextchannel=64d34b65bef27210VgnVCM100000082ca60aRCRD

L-1Bs http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=bfd10b89284a3210VgnVCM100000b92ca60aRCRD&vgnextchannel=bfd10b89284a3210VgnVCM100000b92ca60aRCRD

Blanket Petitions http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=058d4154d7b3d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD

immigration & nationality law handbook, 2008â€“09 - aila webcle

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