dismissed H-1B Case: Law

identifyingdata deletedto
preventcl~arly unwa.mmted
invasionofpersonalprivacy
PUBLICCOpy'
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE: WAC 04 25751956 Office: CALIFORNIA SERVICE CENTER Date: SEP 20 2017
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(l5)(H)(i)(b)
ON BEHALF OF PETITIONER:
SELF-REPRESENTED
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned
to the office that originally decided your case. Any further inquiry must be made to that office.
Robert P. Wiemann, Chief
Administrative Appeals Office
WAC 04 257 51956
Page 2
DISCUSSION: The director denied the nonimmigrant visa petition and the matter is now before the
Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petition will be
denied.
The petitioner is a law firm that seeks to employ the beneficiary as a foreign legal consultant. 1 The
petitioner, therefore, endeavors to classify the beneficiary as a nonimmigrant worker in a specialty
occupation pursuant to section 101(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act),
8 U.S.C. § 1101(a)(15)(H)(i)(b).
The record of proceeding before the AAO contains (1) the Form 1-129 and supporting documentation,
received on September 20, 2004; (2) the director's first request for additional evidence, dated
February 15,2005; (3) the petitioner's response to the director's request; (4) the director's second request for
evidence, dated October 14, 2005; (6) the petitioner's response to the director's second request; (7) the
director's denial letter, dated May 15, 2006; and (8) the Form 1-290B, filed on June 14, 2006, and supporting
documentation. The AAO reviewed the record in its entirety before issuing its decision.
The director denied the petition on two grounds: (1) that a material change to the duties of the proposed
position after the date of filing will not be considered, and (2) that the petitioner had failed to establish
that the beneficiary qualifies to perform the duties of a specialty occupation.
According to the petitioner's letter of support, dated July 30, 2004, the duties of the proposed position are
described as the following:
(i) Legal research and subsequently advise the attorneys on Transactional Aspects of
Israeli Laws with emphasis on the following - Choice of Law (wi~ respect to
Palestine and Israel), Conflict of Laws (with respect to Palestine and Israel),
Palestinian and Israeli Corporate and Business Laws, Palestinian and Israeli
Security Laws (especially the issues concerning Security and Asylum cases),
Israeli Tax Laws, Israeli Labor Laws, Israeli Arbitration Laws, Israeli Intellectual
Property Laws and other associated Transactional Law issues. This research and
the subsequent advice formulated based on this research is done so as to enable
compliance with L-1 and EB-l Multinational executive and manager non­
immigrant and immigrant visa petition requirements. Also, this work will be
done to assist prospective American Corporate clients in the software business in
the United States interested in conducting business in Palestinian Territories and
Israel for offshore software development (which often require compliance with
Israeli intellectual property and Software export laws) and other business related
matters (like arbitration agreements, and compliance with Palestinian and Israeli
Labor and securities laws with respect to subsidiaries of American companies
doing business in Palestine and Israel). Will assist Attorney Citizens wishing to
I The AAO notes that although the petitioner indicated on the Form 1-129 that the proffered position is
immigration paralegal, all other documentation in the record describes the proposed position as a foreign
legal consultant.
WAC 04 25751956
Page 3
conduct business in Palestinian Territories and Israel. Seventy (70) percent of a
40-hour workweek.
(ii) Research and advise attorneys on legal issues arising with respect to the Israeli
and Palestinian Family Law (relating to Marriage, Divorce and Adoptions),
develop Legal position and legal theories related to Israeli laws as they impact
family sponsored immigrant petitions in the United States like 1-130 petitions,
Adoptions such as church approved adoptions, and Orphan petitions. Research
will specifically relate to Palestinian and Israeli Customary law and civil
marriages, Palestinian and Israeli adoption and legal issues related to orphans that
may be brought into question by U.S. immigration authorities. This research will
specifically assist attorney in filing briefs to the BIA where such 1-130 petitions
are denied, ten (10) percent of a 40-hour workweek.
(iii) Research and keep track of amendments and changes in the Israeli Business Law
and other regulations and analyzing the implications as and when these occur,
fifteen (15) percent of a 40-hour workweek.
(iv) Examine and ensure that all the associated paperwork included with Immigration
and Non-Immigration visa petitions (affidavits, Birth certificates, Marriage
certificates, and other documents) are in compliance with the pertinent
regulations and statutes in Israel and Palestine, five (5) percent of a 40-hour
workweek.
The director determined that the petitioner had submitted insufficient evidence to process the petition. On
February 15, 2005, the director requested that the petitioner submit additional information of the proposed
job duties. In the petitioner's response, dated May 7, 2005, it reasserted several of the job duties
described with the initial filing. The petitioner asserted that the beneficiary will be responsible for
"advising as w[e]ll as rend[er]ing a legal opinion on different areas of the laws in Israel"; "represent her
findings to both the principal attorney in the firm and to the prospective client"; and, "involved in the
meeting in order to answer any and all questions as well as to render a legal opinion, based on her
research and analysis." The petitioner asserted that the beneficiary will be the "sole individual to render
such an opinion on the questions that arise or the issues that may arise." The petitioner further stated that
the proposed position "cannot be done by someone other than an attorney, who had practiced law in the
above areas for the simple fact that she has to render a legal opinion." The petitioner contends that a
"non-attorney cannot render a legal opinion on which another person can rely on and pursue with the
goals and plans that client has," and thus the position requires a person with a baccalaureate degree in law
or the equivalent.
On October 14, 2005, the director requested that the petitioner submit evidence to establish that the
beneficiary is qualified to perform duties in the claimed specialty occupation and evidence to establish
whether the beneficiary is required to register as a foreign legal consultant under the California Rule of
Court, Rule 988. Specifically, the director requested: (1) a copy of the beneficiary's permanent
registration with the State Bar of California; or (2) a temporary or interim permit or other authorization
WAC 04 25751956
Page 4
issued by the agency that authorized the beneficiary to practice the profession; or (3) if the petitioner
contends that the beneficiary is exempt from the usual registration requirements, a letter from the
appropriate state licensing agency attesting to the beneficiary's exemption.
In its response letter dated January 3, 2006, the petitioner asserted that the beneficiary does not fall under
the California Rule of Court, Rule 988 since she will not provide any legal adVIce to clients and thus, she
will not be required to register as a foreign legal consultant. The petitioner asserted that the beneficiary
will only advise the attorney and will "not provide any legal advice to any client; the only contact with the
clients will be to secure information only." The petitioner also submitted three expert opinions that will
be further discussed below.
On May 15, 2006, the director denied the petition asserting that the petitioner may not materially change
and amend the duties of the proposed position after the petition has been filed. The director noted that the
petitioner amended the duties of the proffered position when responding to the second request for
evidence. The director stated that the amended position description would not be considered in the instant
petition since the petitioner must file a new petition if it wished to amend the duties of the proposed
position. The director further stated that the petitioner did not submit sufficient evidence to establish that
the beneficiary possesses the appropriate licensure required to perform the proposed duties.
On appeal, the petitioner contends that since it submitted an amendment to the petition while it was still
pending, the amended job duties should have been accepted. Counsel cites to Section 214.2(h)(2)(i)(E) of
the Act and states that this section "emphasizes and stresses the right of a petitioner to amend his petition
and cause material changes to the originally filed petition." Counsel further contends that the "Service
should request submission of a new fee for the amendment as required by the above section rather than
denying the petition." The petitioner further states that if the director accepted the amended job
description, the beneficiary would not be required to register as a foreign legal consultant or obtain an
exemption pursuant to Rule 988. In addition, the petitioner states that since the beneficiary will provide
legal information to the attorney and not the clients, she will not be practicing law and is not governed by
Rule 988.
Upon review of the record, the AAO agrees with the director that the petitioner materially altered the job
description in its January 3, 2006 response to the second request for evidence. While the initial job
description focused on the fact that the beneficiary will provide legal advice to clients, the new job
description asserted that the beneficiary will not provide legal advice to the client but only to the attorney.
For example, under the revised job description, the beneficiary would "not provide any legal advice to
any client; the only contact with the clients will be to secure information only." The AAO finds that these
changes were not mere clarification but rather constituted a material alteration of the petition as originally
filed. On appeal, the petitioner asserted that the job description filed in response to the second request for
evidence was in fact an amendment to the petition and reflected a material change in the terms and
conditions of the employment.
The purpose of the request for evidence is to elicit further information that clarifies whether eligibility for
the benefit sought has been established. 8 C.F.R. § 103.2(b)(8). When responding to a request for
evidence, a petitioner cannot offer a new position to the beneficiary, or materially change a position's title
WAC 0425751956
Page 5
or its associated job responsibilities. The petitioner must establish that the position offered to the
beneficiary when the petition was filed is a specialty occupation. See Matter ofMichelin Tire, 17 I&N
Dec. 248, 249 (Reg. Comm. 1978). If significant changes are made to the initial petition, the petitioner must
file a new petition rather than seek approval of a petition that is not supported by the facts in the record. The
information provided by the petitioner in its response to the director's request for further evidence did not
clarify or provide more specificity to the original duties of the position, but rather changed the duties
indicated in the initial job description. Therefore, the analysis of the beneficiary's qualifications to
perform the services of the occupation will be based on the job description submitted with the initial
petition.
The second issue to be addressed on appeal is whether the beneficiary qualifies to perform the duties of
the occupation. As discussed further below, the AAO finds that the beneficiary will be providing legal
services to the petitioner's clients and is thus required to be licensed or certified. Pursuant to
8 CF.R. § 214.2(h)(4)(iii)(C), in order to qualify to perform services in a specialty occupation, an alien
must meet one of the following criteria:
(1) Hold a United States baccalaureate or higher degree required by the specialty
occupation from an accredited college or university;
(2) Hold a foreign degree determined to be equivalent to a United States
baccalaureate or higher degree required by the specialty occupation from an
accredited college or university;
(3) Hold an unrestricted state license, registration or certification which authorizes
him or her to fully practice the specialty occupation and be immediately engaged
in that specialty in the state of intended employment; or
(4) Have education, specialized training, and/or progressively responsible experience
that is equivalent to completion of a United States baccalaureate or higher degree
in the specialty occupation, and have recognition of expertise in the specialty
through progressively responsible positions directly related to the specialty.
Pursuant to 8 CF.R. § 214.2(h)(v)(A), if an occupation requires a state or local license for an individual
to fully perform the duties of the occupation, an alien (except an H-IC nurse) seeking H classification in
that occupation must have that license prior to approval of the petition to be found qualified to enter the
United States and immediately engage in employment in the occupation.
According to an evaluation contained in the record of proceeding, the beneficiary possesses the equivalent
of a juris doctor degree from a regionally accredited college or university in the United States. She
therefore is minimally qualified to perform the duties of the occupation under
8 CF.R. § 214.2(h)(4)(iii)(C)(2). However, the petitioner must still demonstrate that the beneficiary has
followed the regulations pursuant to California Rule of Court, Rule 988 as outlined in the rule below.
WAC 04 25751956
Page 6
Rule 988. Registered foreign legal consultant
(a) [Definition] A "Registered Foreign Legal Consultant" is a person who
(1) is admitted to practice and is in good standing as an attorney or counselor at law or
the equivalent in a foreign country; and
(2) has a currently effective Certificate of Registration as a Registered Foreign Legal
Consultant from the State Bar.
(b) [State Bar Registered Foreign Legal Consultant program] The State Bar shall
establish and administer a program for registering foreign attorneys or counselors at law
or the equivalent under rules adopted by the BoardofGovernors of the State Bar.
(c) [Eligibility for certification] To be eligible to become a Registered Foreign Legal
Consultant, an applicant must:
(1) Present satisfactory proof that the applicant has been admitted to practice and has
been in good standing as an attorney or counselor at law or the equivalent in a foreign
country for at least four of the six years immediately preceding the application, and while
so admitted, has actually practiced the law of that country;
(2) Present satisfactory proof that the applicant possesses the good moral character
requisite for a person to be licensed as a member of the State Bar of California;
(3) Agree to comply with the provisions of the rules adopted by the Board of Governors
of the State Bar relating to security for claims against a Foreign Legal Consultant by his
or her clients;
(4) Agree to comply with the provisions of the rules adopted by the Board of Governors
of the State Bar relating to maintaining an address of record for State Bar purposes;
(5) Agree to notify the State Bar of any change in his or her status in any jurisdiction
where he or she is admitted to practice or of any discipline with respect to such
admission;
(6) Agree to be subject to the jurisdiction of the courts of this state with respect to the
laws of the State of California governing the conduct of attorneys, to the same extent as a
member of the State Bar of California;
(7) Agree to become familiar with and comply with the standards of professional conduct
required of members of the State Bar of California;
(8) Agree to be subject to the disciplinary jurisdiction ofthe State Bar of California;
(9) Agree to be subject to the rights and obligations with respect to attorney client
privilege, work-product privilege, and other professional privileges, to the same extent as
attorneys admitted to practice law in California; and
(10) Agree to comply with the laws of the State of California, the Rules and Regulations
of the State Bar of California, and these Rules.
(d) [Authority to practice law] Subject to all applicable rules, regulations, and statutes, a
Registered Foreign Legal Consultant may render legal services in California, except that
he or she may not ...
As noted above, in his October 14,2005 request for additional evidence, the director requested two items:
(1) evidence that the beneficiary has a currently effective certificate of registration as a registered foreign
legal consultant from the State Bar of California, in compliance with Rule 988 of the California Rules of
Court or a temporary or interim permit or other documentation authorizing the beneficiary to practice the
----~--~ ~------------------------------------------
WAC 04 257 51956
Page 7
profession; and (2) if the petitioner were to contend that the beneficiary is exempt from Rule 988, a letter
from the State Bar of Californiaattesting to the beneficiary's exemption from Rule 988.
As noted previously, the AAO will not accept the amendment filed by the petitioner and will review the
record based on the job description submitted with the initial petition, and in its response to the director's first
request for evidence. According to these job descriptions, the beneficiary will render legal advice to clients.
The petitioner asserted that the beneficiary will be responsible for "advising as w[e]ll as rend[erling a legal
opinion on different areas of the laws in Israel"; "represent her findings to both the principal attorney in
the firm and to the prospective client"; and, will be "involved in the meeting in order to answer any and
all questions as well as to render a legal opinion, based on her research and analysis." The petitioner
asserted that the beneficiary will be the "sole individual to render such an opinion on the questions that
arise or the issues that may arise." Thus, the beneficiary will be rendering legal advice to clients and
practicing law in the United States.
In response to the director's second request for evidence, the petitioner submitted a copy of a letter it had
received from the State Bar of California, dated November 2, 2006. In this letter, the State Bar of
California responded to the petitioner's request for a written statement from the State Bar clarifying
whether the beneficiary required registration under Rule 988. In its response, the State Bar stated the
following:
Employees of the State Bar are not authorized or permitted to offer advisory opinions or
to provide legal advise [sic] or counsel nor to express the opinion of the State Bar on this
or other matters. As such, we cannot meet your request to provide you with a written
legal advisory opinion regarding your question. If you do wish to obtain a legal opinion,
you may wish to consult with an attorney who is licensed to practice law in California
who specializes in State Bar admissions matters.
As the State Bar of California was unwilling to provide the type of letter requested by the director, the
petitioner consulted with one attorney, whose practice focuses on Bar-related issues, as
suggested by the Bar. _ issued a written opinion concluding that the beneficiary in this case
does not require registration under Rule 988. However, _ indicated that his opinion was based
on the petitioner's letter dated January 3, 2006, which materially altered the position and amended the
petition. Thus, this opinion letter will not be considered. The AAO may, in its discretion, use as advisory
opinion statements submitted as expert testimony. However, where an opinion is not in accord with other
information or is in any way questionable, the AAO is not required to accept or may give less weight to
that evidence. Matter a/Caron International, 19 I&N Dec. 791 (Comm. 1988).
In addition, the petitioner submitted an opinion letter from Esq. stated that
his firm has filed for foreign legal consultants who provided legal advice and have not advised clients
directly. _ further stated that the foreign legal consultants employed at his firm have never
registered with the State Bar of California as foreign legal consultants. _stated that he
understood that the "potential employee would only research and advise only the attorney." As discussed
above, according to the initial job descriptions submitted by the petitioner, the beneficiary will go beyond
advising the attorney and will also render legal advice to clients. Therefore, the opinion letter is based on
. , ..
. WAC 04 25751956
Page 8
a fact that has not been established in the record. The petitioner submitted a third opinion letter from
, which is almost identical to the letter discussed above and will also not
be considered for the above-mentioned reasons.
The AAO disagrees with the petitioner and_ that the beneficiary does not require registration
under Rule 988. Registration under Rule 988 allows a foreign-trained attorney to "render legal services,,2
in California. As stated by the petitioner and demonstrated by this record of proceeding, the proposed
duties to be performed by the beneficiary will include legal services and thus the beneficiary must be
registered under Rule 988. Thus, the beneficiary is not qualified to perform the duties of the specialty
occupation. 8 C.F.R. § 2l4.2(h)(4)(v).
As related in the discussion above, the petitioner has failed to establish that the beneficiary is qualified to
perform the duties of the proffered position. Accordingly, the AAO shall not disturb the director's denial
of the petition.
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 V.S.c.
§ 1361. The petitioner has not sustained that burden.
ORDER: The appeal is dismissed. The petition is denied.
2 See 2006 California Rules of Court, Rule 988(d), http://www.courtinfo.ca/gov/rules/titlethree/title3­
103.htm.