Legacy INS Opinion on the Employment-Based Preferences and Alien Lawyers

 

Introduction

In this article, we will examine a legacy Immigration and Naturalization Service (INS) General Counsel opinion which took the position that the practice of law does not fall under the terms “arts” or “sciences” for purposes of the employment-based first preference (EB1) category. The opinion, authored by then-INS General Counsel T. Alexander Aleinkoff, is titled Legal Opinion, Aleinkoff, General Counsel, INS, CO 203-P (Jan. 20, 1995). It was also reported in 72 No. 5 Interpreter Releases (Jan. 30, 1995). The functions of the former INS regarding the adjudication of EB1 petitions have since been taken over by the Department of Homeland Security (DHS). Although dated, the legacy General Counsel opinion provides guidance on the limitations of the EB1 category for legal practitioners which remains useful today.1

Member of the Professions

It is worth noting that the General Counsel opinion also addresses athletes in the EB2 context. However, this article will focus exclusively on Aleinkoff's analysis of the legal profession in the EB1 context.

Analysis on Law and the EB1 Context

Aleinkoff began by noting that “[a] qualified alien who is a member of the professions and who holds an advanced degree qualifies for an [EB2] immigrant visa” under section 203(b)(2)(A) of the Immigration and Nationality Act (INA). The term “profession” is defined in section 101(a)(32) of the INA. Aleinkoff noted that the definition includes “lawyers,” meaning that lawyers are eligible to be granted immigrant visas under the EB2 category.

The question for the General Counsel was whether lawyers could also qualify for EB1 preference. The American Immigration Lawyers Association took the position that the practice of law falls under the terms “arts” and “sciences,” which would allow lawyers to have petitions approved in the EB1 category. The INS had previously held that the practice of law is not contemplated by the terms “arts” or “sciences” in the unpublished decision Matter of X-, EAC 92 042 50151 (July 23, 1993).

Aleinkoff stated that Congress had never explicitly addressed whether the terms “arts” and “sciences” include the practice of law. Furthermore, there were also no administrative precedent decisions speaking to the issue. Aleinkoff took the position that it was appropriate to follow the principle that “inclusion here means exclusion here.” To this effect, he found it relevant that Congress had included “professionals” in the EB2 (section 203(b)(2)(A)) and EB3 (203(b)(3)(A)(ii)) preference categories but not in the EB1 category. Following the principle, he concluded “that the omission of members of the professions from [s]ection 203(b)(1)(A) disposes of the issue.” In the foregoing paragraphs, we will examine Aleinkoff's detailed analysis for why lawyers do not qualify for EB1 preference.

AILA had argued that the ordinary meaning of the terms “sciences” and “arts” necessarily includes the practice of law. Aleinkoff agreed that the common meanings of the terms “sciences” and “arts” “would embrace fields of intellectual endeavor in which colleges customarily grant degrees.” However, he found that the practice of law is distinguishable in the sense that “colleges do not grant degrees enabling one to take the examination required to enter the practice of law; law schools grant such degrees.” While he agreed that the practice of law “shares some elements” with the “sciences” and “arts,” he took the position that following the INS's existing position on the matter that law was not one of the “sciences” or “arts” was reasonable,.

Having explained why the INS was maintaining its position that the practice of law is not of the “sciences” or “arts” for EB1 purposes, he moved to note four related issues. We will examine each of these issues in turn.

Cases in Which Lawyers May Qualify as an EB1 Outstanding Professor or Researcher

Although most alien lawyers seeking employment-based immigrant visas are properly classifiable as EB2, “a legal scholar of great distinction could well qualify for an [EB1] immigrant visa as an 'outstanding professor or researcher.” The provision for EB1 “outstanding professors and researchers” is found in section 203(b)(1)(B) of the INA. However, it is important to note that the lawyer would have to meet all of the specific requirements for preference as an EB1 outstanding professor or researcher in order to qualify.

Cases in Which Lawyer May Qualify as an EB1 Alien of Extraordinary Ability

An alien lawyer who is of extraordinary ability in business or in another EB1 endeavor would not be ineligible for EB1 classification on account of his or her also being a lawyer. This also applies to an alien who is a member of the professions (which fall under the EB2 category) but who can separately meet the distinct requirements for EB1 classification as an alien of extraordinary ability.

Cases Where Alien Has Bachelor of Laws (LL.B.) Degree

Alienkoff addressed rare cases where an alien lawyer holds a Bachelor of Laws (LL.B.) degree that he or she obtained without first obtaining a baccalaureate degree from college. In the majority of cases, law school graduates first obtain a baccalaureate degree and then receive a graduate Doctor of Laws (J.D.) degree. In order to qualify for an EB2 visa as a member of the professions under section 203(b)(2)(A), the alien beneficiary must have an advanced degree or its equivalent. Members of the professions who lack an advanced degree or its equivalent may instead be classifiable as EB3 under section 203(b)(3)(A)(ii). Aleinkoff explained that a lawyer with an LL.B. who did not first obtain an undergraduate baccalaureate degree would “seem to qualify as an [EB3] preference immigrant, unless the alien can show at least “five years of progressive experience.” Please see our full article to learn about EB2 degree equivalency [see article]. If the alien procured his or her LL.B. after obtaining an undergraduate baccalaureate degree, Aleinkoff took the position that the LL.B. degree would then “properly be considered an advanced degree, as would the more common J.D. degree.

Alien Lawyer Must Show That He or She Is Eligible for Licensure to Practice Law in United States

Aleinkoff noted that most States require individuals to have a degree from an American Bar Association (ABA)-approved law school in order to sit for the law exam, and that the passing of that exam is, with few exceptions, a requirement in each state for licensing or admission to practice law. In order to qualify for EB2 or EB3 preference, an alien must be able to practice his or her profession in the United States. In immigrant visa petition proceedings, the petitioner bears the burden of proof. To this effect, Aleinkoff cited to the Board of Immigration Appeals (BIA) published decisions in Matter of Ma, Int, 20 I&N Dec. 394 (BIA 1991) [PDF version], and Matter of Brantigan, 11 I&N Dec.493 (BIA 1966) [PDF version]. In accord with Matter of Brantigan, Aleinkoff explained that an alien lawyer seeking EB2 or EB3 preference to facilitate his or her admission as an immigrant to practice law would have the burden of establishing that he or she is eligible to be licensed or admitted to practice law in the United States. To learn more about the burden of proof in visa petitions, please see our comprehensive article on Matter of Brantigan and related cases [see article].

Aleinkoff stated that “[t]he most common way to prove [] eligibility [to be licensed to practice law] may entail showing that the alien has taken, or is eligible to take, the bar exam in the State where the alien intends to live.” However, he acknowledged that there may be limited cases wherein an alien who is not eligible for a regular license to practice law in the United States may be eligible for an EB2 or EB3 immigrant visa as an attorney. This case may arise in a State where “a foreign attorney may, without taking the State bar exam, obtain a license to practice as a 'foreign legal consultant.'” While such a license would limit the types of law that the alien would be able to practice, Aleinkoff stated that “this activity would still involve the practice of law.” He stated that the then-INS “may properly find that the alien is coming to the United States to practice his or her profession” in the event that he or she would be obtaining a license as a “foreign legal consultant.” However, it is important to note that licensure rules differ from State to State, and that the burden for establishing that a petition should be approve rests with the petitioner.

Conclusion

The legacy INS General Counsel opinion discussed in this article took the position that the EB1 preference category is not available to those seeking immigrant visas for the purpose of practicing law in the United States. Alien lawyers are instead properly classifiable as EB2 or EB3, depending on the facts of the specific case. However, the opinion notes that an alien lawyer may be eligible for EB1 on a different basis. As the article noted, an alien lawyer may qualify for EB1 preference as an “outstanding professor or researcher” or if he or she is of extraordinary ability in a qualifying field, such as business.

When seeking to petition for an alien to work in the United States as an immigrant, it is important to consult with an experienced immigration attorney. An experienced immigration attorney will be able to assess the case and determine if the alien may be eligible for an immigrant visa and, if so, which preference category would be appropriate provided all of the facts of the specific case.

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  1. For example, see . Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014) 1189.