The Situation

Early in my law practice, another attorney hired me as of counsel to prepare a response to a USCIS Notice of Intent to Revoke an approved I-140 petition.

The beneficiary managed his father’s property investment company abroad. An American businessman whose company managed a shopping center had offered him a permanent job running its office. The Department of Labor certified the alien labor certification application. USCIS approved the EB-3 immigrant visa petition. What remained was an interview at the consulate.

<dialogue>

Cut to a large European city. Inside the U.S. consulate, a hall of numbered windows and bolted-down chairs. A counter display blinks through the queue. The camera finds the beneficiary at a window, talking to a consular officer through two inches of glass.

OFFICER: How did you meet your petitioner?

BENEFICIARY: Through one of the partners in his company. About eight years ago.

OFFICER: What do you do now?

BENEFICIARY: I manage my father’s property investment company.

OFFICER: How many employees?

BENEFICIARY: None besides me.

OFFICER: How many properties do you manage?

BENEFICIARY: Eight to ten.

OFFICER: Have you ever managed a shopping center?

BENEFICIARY: No.

Close up on the officer’s rapidly moving pen.

[Fade to black]

</dialogue>

The interview was not the end of it. The officer telephoned the petitioner also.

<dialogue>

Cut to an office inside the consulate. The officer at a desk, the case file open, phone to his ear. The petitioner’s voice arrives from across an ocean.

OFFICER: How did you meet the beneficiary?

PETITIONER: At a coffee shop. Years ago.

OFFICER: Why would you offer a job to someone you met randomly?

PETITIONER: He had the right personality for the job.

OFFICER: Are you two related?

PETITIONER: He’s married to my niece.

OFFICER: Has he managed large properties before?

PETITIONER: He’s managed a shopping center.

OFFICER: Are you sure about that?

PETITIONER: I’m hiring him more for his potential than his experience.

Close on the officer’s pen.

[Fade to black]

</dialogue>

The petitioner’s own attorney later confirmed to the consular officer that the beneficiary had never managed a shopping center.

Based on those answers the consular officer denied the visa and sent a revocation recommendation to USCIS. Based on the consulate’s recommendation, a USCIS examiner at the Nebraska Service Center assembled a Notice of Intent to Revoke (NOIR). Business as usual.

The Invented Requirement

The NOIR opens by quoting the statute correctly. Section 203(b)(3)(A)(i) of the Immigration and Nationality Act covers a worker capable of performing skilled labor “requiring at least two years training or experience.”

Then the NOIR starts rewriting it. One page later, the standard has morphed into “at least two years of specialized training or experience.” A paragraph later, the beneficiary’s work does not “rise to the level of skilled worker requiring two years of specialized experience.” By the conclusion, weighing letters from the tenants of the father’s company (previously produced for the consulate to corroborate the beneficiary’s father’s work experience verification letter), the NOIR arrives at:

“Numerous letters from current tenants indicate that beneficiary’s experience does not qualify under Department of Labor classification for a skilled worker, requiring two years of specialized knowledge.”

Three restatements, each attaching the word “specialized” to a different noun: training, experience, knowledge. The word “specialized” never appears in the statute defining immigrant skilled workers. And “specialized knowledge” is a term of art describing a different visa classification entirely, in a different part of the regulations, 8 C.F.R. § 214.2(l)(1)(ii)(D), written for intracompany transferees on temporary L-1 visas. A skilled worker requires at least two years of training or experience. 8 C.F.R. § 204.5(l)(2).

The NOIR also observed that the beneficiary “has no university degree or specialized certification.” The certified Form ETA 750 asked for two years of high school and two years of experience in the job offered or a related occupation, which the petitioner defined on the form as “Any Managerial Position.” The duties were office administration: correspondence, filing, work schedules, personnel records, bookkeeping. Nothing about shopping centers, because running a shopping center’s office is running an office. Any office. Two years managing a zoo would have satisfied the job’s minimum requirement. The client had managed his father’s properties, an occupation the Department of Labor’s own classification put in the same category as the job waiting for him in America.

Bureaucratic Waterboarding

Everything else in the NOIR boiled down to irrelevant details working hard to appear relevant, and none of them touched eligibility. The coffee shop: the regulations governing a job offer’s bona fides say nothing about where the offer may be made. The niece: the NOIR read the undisclosed marriage as a sign that “the petitioner may be [sic] an attempt to provide immigration benefits to a family member not eligible for immediate relative status.” An accusation of fraud, delivered in a sentence that cannot parse its own subject. But the labor certification predated the PERM rules, and the DOL form in use then asked no questions about family ties, so there was nothing to disclose or conceal. And an approved labor certification cannot be invalidated on a “may be”; that takes fraud or willful misrepresentation actually proven, and the record contained no evidence permitting even the inference. The tenants’ letters reported rent collection and maintenance because that is the part of a property manager’s job a tenant actually sees; the NOIR treated the limits of their viewpoint as the limits of the man’s actual job duties. And the father’s letter describing his son’s work in nearly the same words as the labor certification: there’s nothing inherently wrong with a letter corroborating the record by matching the description in the record. These duties are the same in the letter because they are the same in reality.

The NOIR also claimed that the consular officer had contacted the petitioner on December 19, 2009. While the NOIR itself was dated April 17, 2009. How uncanny: the NOIR chronologically preceded its own source.

In my response, I named the method: bureaucratic waterboarding. Keep asking questions that have no bearing on eligibility, and sooner or later something can be lifted out of context and made to support any claim at all, however outrageous. The client’s answers were never the problem. Take away his answers, and one fact remains standing: his nationality, which appeared to be the only conceivable reason for denial in the record. That is what the consular officer really had a problem with. Perceived guilt by association. Keep pushing until something could be used to justify a premeditated denial. I’ve seen this many times since. The dignified setting does not redeem the undignified method.

The Result

USCIS affirmed the petition’s approval and returned the case to the National Visa Center, putting it on track for a second interview at the consulate. It took 16 weeks to make this happen.

I never heard about the case again. But the term “bureaucratic waterboarding” has since earned its own entry in the Albrecht Index.