On August 13, 2013, Alliance of Business Immigration Lawyers (ABIL) founder and past president, Angelo Paparelli, traveled to the U.S. Consulate in Chennai, India, to exchange views between the post and ABIL. He visited with Michael G. Cathey, Deputy Chief of Consular Services; Susan L. Dunathan, Vice Consul; and others. The following is a summary of the visit.
Mr. Cathey welcomed ABIL as part of extensive outreach conducted over the last two years. That outreach has included the business community, visiting attorneys, Business Executive Program (BEP) meetings, and public meetings with business groups. The purpose of the outreach is to educate stakeholders on how they can “help us to get to yes,” he said.
Mr. Cathey noted that the Chennai consulate processes 25% of the world’s H-1B visa applications and 30% of the world’s L-1 visa applications. The post consolidated adjudication of all Indian blanket L-1s in 2011. Fourteen adjudicators work there daily. They process 1,000 nonimmigrant visa (NIV) applications per day (1,300 per day in high season). Each officer conducts 120 NIV interviews per day in a four-to-five-hour time frame. Consular interviews average three to four minutes each (although Ms. Dunathan noted that easy cases from companies they know well, like Google, can be done in one to two minutes, thereby allowing some tougher cases to take up to six minutes for the interview).
Regarding L-1B specialized knowledge, Ms. Dunathan said it is far easier to say what specialized knowledge is not. She said she divides the applicant world between product makers (easier to find specialized knowledge) and service providers (much harder for specialized knowledge). Working with “proprietary tools” does not necessarily qualify for specialized knowledge, whereas developing such tools might.
Both Mr. Cathey and Ms. Dunathan said they don’t consider whether their decisions impact American job opportunities, with Mr. Cathey adding that their mission is to facilitate legitimate personal and business travel to the United States. He offered that for blanket L-1s, his officers operate under the “clearly approvable” standard, which is “way higher than the USCIS’s preponderance of the evidence” test.
Ms. Dunathan noted that “cover letters read like advertising materials” and that consular officers “don’t have time to read a sheaf of papers.” All agreed that the visa applicant’s answers to their “infinitesimally small universe of questions” is what must demonstrate visa eligibility. Mr. Cathey noted that applicants sometimes come woefully unprepared for interviews.
Mr. Cathey explained that in his view the Indian IT consulting companies land a project and then subordinates find human resources to staff it. The visa applicants often know nothing about how or why the project was procured. Mr. Cathey said that companies should focus their interview preparation on educating the applicant on the project. They should ask themselves: “Did our company get this project because we had some articulable value to contribute that was unique in the marketplace and the industry, or because we were the low bidder?” If the former, then specialized knowledge might be feasible; if the latter, then don’t use the L-1 as a substitute for a quota-depleted H-1B. Thus, he urged, a company should focus less on the number of years of the applicant’s experience, and more on why the project was procured. Ms. Dunathan observed that the quality of L-1 submissions plummets each time the H-1B annual cap is reached.
Turning briefly to L-1As, Mr. Cathey asserted that there is no minimum number of subordinates managed (such as 10) to qualify. But he maintained that the blanket L-1’s “clearly approvable” standard made it suitable only for “senior managers.”
Ms. Dunathan stated that she routinely denies L-1A for technology leads w-ho oversee three programmers. In her view, the tech lead does the same work as the subordinates but merely has a scheduling function in addition, which is not management. Mr. Paparelli noted that first-line supervisors of professionals are L-1A managers under the USCIS regulations and that the authority to “recommend personnel decisions” is an indication of manager standing. He also noted, and Mr. Cathey agreed, that the consular officer’s role is not lawmaking or policy but law implementation. Mr. Cathey said his team only follows instructions from State and guidance from USCIS, and “if those change in a way that more folks are eligible, then our visa approvals will correspondingly increase.”
In subsequent comments, Mr. Cathey noted that ” we do not adjudicate companies, we adjudicate applicants. True, some companies may have higher approval rates than others, but that means their employees correctly fit and qualify for their respective visa categories.”
With respect to the Business Express Program (BEP), Mr. Cathey said the requirement of at least 50 cases per year is stringently applied. If the overall number dips below 50, he said, the company is dropped from the BEP.