Angelo Paparelli on Structural Immigration Reform - Law360 Interview

"Angelo Paparelli, a partner at Seyfarth Shaw LLP and the founder of the Alliance of Business Immigration Lawyers, recently shared his views on the top issues facing business-immigration lawyers with Law360, including flaws in the government’s new L-1B visa memo and why enthusiasm for the EB-5 program hasn’t waned following a critical report.

Paparelli, a well-known attorney in the business immigration world, has more than 35 years of experience in the field and is particularly knowledgeable about the immigration aspects of mergers and acquisitions, the EB-5 investor visa program and employment-related visas.

He’s also a trailblazer when it comes to forging new connections for attorneys, having founded ABIL roughly 12 years ago. The invitation-only group of 20 attorneys meets three times a year and gives immigration lawyers a chance to exchange ideas on law firm management, best practices and dealing with the government on immigration matters, Paparelli said.

“We had a common adversary in the federal government, and to that degree at least, we were able to share war stories and intelligence,” Paparelli said, noting that ABIL has become a group of close colleagues over the years.

When asked about what he thinks are some of the biggest problems facing business immigration lawyers right now, Paparelli pointed to leaders and adjudicators who have become “self-appointed protectors of America,” leaving them unsympathetic to business immigration.

As evidence of this tendency, he highlighted a recent report by the National Foundation for American Policy, which found that rejections of L-1B visa petitions for intracompany transfers had hit an all-time high, and that Indian workers receive a higher denial rate than employees of other national origins.

“There is no way in the world that one can explain this, other than in the format of either antipathy toward the consulting industry as a business model, or antipathy toward Indian nationals or Indian companies,” Paparelli said of the report.

Paparelli also quibbled with the new L-1B guidance issued by U.S. Citizenship and Immigration Services in March, arguing that the memo incorrectly states that visa candidates can be compared to others outside their company in order to establish that their expertise fits the definition of “specialized knowledge.” 

"I don't think that's at all true. ... It should be an examination of what is unusual about the company and what have people amassed in terms of knowledge about those unique features," Paparelli said.

He further noted that the L-1B memo didn’t give examples of workers who would be good candidates for the visa category and said it saddled petitioners with a “burdensome laundry list” of documentary evidence, which Paparelli predicted would morph into a mandate.

“Why did it take three-plus years for this memo to come out?" he said. "I think because they had to wordsmith it in a way to give examiners abundant wiggle room and discretion to say no anytime they wanted to."

But while he had criticisms for the L-1B guidance, Paparelli was optimistic when it came to the EB-5 program, saying that enthusiasm for it hadn’t abated at an Invest in the USA meeting, despite a report accusing former USCIS director Alejandro Mayorkas of possibly playing favorites within the program.

“The message was that EB-5 has a great story to tell,” Paparelli said of the meeting. “It creates jobs. It generates taxes. It costs nothing for the American government to operate, because it's all amply funded by user fees.”

While the Mayorkas report did come up at the gathering, attendees were more concerned about the quota retrogression for people born in mainland China, Paparelli said. He also noted that he met with a regional center director from the state of Michigan who was “gung-ho” about the program.

“Institutional money is coming into it,” Paparelli said. “That's creating a great deal of sophistication, an attitude toward law compliance, a tendency to look very carefully at the soundness of the deals — so that investors are protected, [and] so that jobs are created.”

In other heartening immigration changes, Paparelli said his firm was being flooded with requests from spouses of H-1B visa holders who will soon be allowed to apply for work authorization under a new rule. To handle the high demand, he said, his firm has had to form an “emergency response team.”

However, when it came to H-1B visa holders themselves, Paparelli was concerned with two recent decisions from the Administrative Appeals Office, one of which requires the submission of an updated H-1B petition when a foreign worker changes locations. The other, nonprecedential decision, spends 41 pages challenging every element of H-1B eligibility, he said.

“It is just replete with non sequiturs and faulty logic,” Paparelli said of the ruling. “And if it does what I'm confident it will do, serve as a road map to negative adjudicators to go down that road ... and in a few years, we'll have to have an H-1B memo to clean it up.”

The AAO itself is in need of major reform, particularly since it’s unclear what its behind-the-scenes relationship is with the office of policy, Paparelli added. He argued that Congress should create an overarching immigration court with officers from every department that rules on immigration, since the current issuers of most decisions only know a narrow slice of immigration law.

“There's therefore no obligation to harmonize the interpretations and reconcile them,” Paparelli said. “And so immigration adjudication at the administrative level is a mess, and the AAO is perhaps one of the best examples of this mess.”

The intensely complex nature of the U.S. immigration system is perhaps one of the biggest reasons why global accounting firms that have been beefing up their immigration offerings won’t be able to surpass law firms, Paparelli noted, although he acknowledged that their multicountry presence gives such companies a big advantage.

Since a major immigration law overhaul isn't likely given the current political landscape, the immigration system will probably remain complete with “brain teasers” and procedural hurdles, he added.

“It will surprise me if we ever get to a point that this could be changed in a manner that the major accounting firms will be able to do it, or these machine-based support systems will be able to do it, and do it well,” Paparelli said." - Allissa Wickham, Law360, Apr. 21, 2015.