Q&A With Fox Rothschild’s Robert Whitehill

May 7, 2015 – In The News

"Reprinted with permission from the May 7 issue of Law360. (c) 2015 Portfolio Media, Inc. Further duplication without permission is prohibited. All rights reserved."

Chairman of Fox Rothschild LLP's immigration group, Robert S. Whitehill serves the immigration needs of individuals and employers, including those skilled and highly trained in the sciences, arts, medicine and commerce. With more than two decades of experience, he assists:

  • employers in securing nonimmigrant work visas for new hires and permanent residence for permanent personnel;
  • health care institutions with immigration issues of foreign-born professional staff;
  • institutions in developing and implementing systemwide immigration policies and protocols;
  • multinational companies in bringing in executives, managers or individuals with specialized knowledge;
  • universities with foreign-born faculty, researchers and graduates, including Carnegie Mellon University and the University of Pittsburgh;
  • entrepreneurs forming startup enterprises or relocating to the U.S. in securing treaty-based visas; and
  • individuals seeking status based on family or asylum.

Q. What is the most challenging case you have worked on and what made it a challenge?

A: In preparing and filing an immigration case, there is always uncertainty. Sometimes it is a difficult legal issue, sometimes it is a difficult fact pattern and often it is the uncertainty of what the government reaction is going to be — when all of that combines with a case that deals intimately with a person’s life, there is a real challenge. I have had some high-stakes asylum cases where removal from the U.S. would subject my client to the imminent possibility of death upon return home. I have had cases where the success or failure of a business depends on a single person being able to come to or stay in the U.S. Then, there are family cases where a loved one is stuck for what seems to be an eternity outside of the U.S., while the rest of the family is here.

For me, the most challenging immigration cases deal with people’s lives. Take Francesca’s adoption, for example. A couple who had come to the U.S. for medical training had a chance to adopt a child in Colombia. They made the arrangements through church contacts in Rome and went to meet their child and bring her back to the U.S. to complete the adoption. After the U.S. consul denied the child’s visa to come to the U.S. — “immigrant intent” — we were asked to become involved. The consul was resolute and there are no grounds for judicial appeal. Nonetheless, we prepared and filed for reconsideration and the grant of a waiver. The emotional and human stakes were very high, and I became involved in the personal lives of the parents and their child. It felt like we were fighting to bring in our own child rather than a client’s.

The parents’ contacts in Rome were significant. The person who arranged the adoption went to a cardinal and told him of the plight of this family. It so happened that this cardinal had the occasion to dine with the pope and used that opportunity to relate Francesca’s story. The pope directed the Papal Nuncio to contact the U.S. ambassador, the ambassador then contacted the consul, who in turn contacted me to inform me that a “humanitarian parole” would be granted. It was hard to hold back my tears of joy.

There have been many other challenging matters that brought tears of both joy and sadness where the clients had no connections and no money, but rather were faced with extraordinary human needs and seemingly insurmountable obstacles.

Q: What aspects of your practice need reform and why?

A: Most of our work deals with employment-based immigration. Here we cannot appeal to the pope, but instead only to Congress with the goal of changing the law. Nearly everyone agrees that our immigration system is out of date, does not serve the national interest and is broken. The human and economic costs of our brokenness are profound. We see them every day.

As expected, the U.S. Citizenship and Immigration Services announced on April 7, 2015, that the number of cap subject H-1b visa applications filed in the first five days of eligibility exceeded the supply for the entire year. (These are visas for temporary work authorization in a specialty occupation for compensation at or above the “prevailing wage.”) When there are no more visas available for the next 360 days, what options are available for a shut-out skilled foreign worker and her or his employer? In our practice, we file H-1B visas for tech startups on behalf of software engineers with master’s degrees from elite universities, for private physician practices seeking to hire doctors who had completed their residency at academic medical centers and for other employers seeking foreign born workers to fill “specialty occupations.”

There will be a lottery to award additional H-1B visas. Last year, the chances of success were 50/50, but the odds have not yet been announced for the fiscal year 2016. A lottery may be a fair way to allocate a scarce resource. But does it make any sense for talent needed by the U.S. to be chosen by lottery because there is an arbitrary numerical limit? Does it make sense to have one’s career depend on the luck of the draw? And what about the lottery losers? Many were educated in the U.S. and, with no other options, will be forced to leave the U.S., often leaving their employer high and dry.

The H-1B issue is only one of many employment based immigration issues begging for reform. For the immigration lawyer with real clients and real issues, the challenge is to navigate through a 20th century set of laws to try to solve 21st century issues. In fairness, getting political consensus on immigration reform has been contentious for more than a century. Reform comes slowly, but unfortunately at a steep cost.

Q. What is an important issue to your practice area and why?

A: Our practice is a general immigration practice, but one area where I spend a great deal of time is serving physicians and their employers. Foreign medical graduates train for years to be licensed and credentialed to serve the health care needs of Americans. Just as they train in a medical specialty, they are subject to a specialized set of immigration rules and regulations. Most foreign medical graduates train while here on H-1B or J-1 visas. Those who train on H-1B are subject to the six-year limit of that visa. Those who train on the J-1 are subject to the two-year home residence requirement. For those who seek to stay after their training, the limitations on these visas and other issues present complicated legal problems.

One particular issue is the transition of a medical specialist whose training takes five to six years on an H-1B visa. The issue becomes even more interesting if the physician is transitioning to a cap subject H-1B. Here, there is a double whammy of six years being the duration of the H-1B unless there has been an approved immigrant visa application or a Program Electronic Review Management certification of immigrant visa application pending for a year of more and a limited number of cap subject H-1B visas. Confused yet? You bet.

Transition issues can be complicated and expensive to address and may result in gaps in the physician’s employment. Here is where education of and prior planning by the physician and employer can make all the difference.

Q. Outside your firm, name an attorney who has impressed you and explain why?

A: Naomi Schorr. What a lawyer! She studies the law, digests it, writes about it, challenges government and convinces them she is correct. The Immigration and Naturalization Act's Section 214(g)(5)(A) makes H-1B cap exemptions available to one “who is employed (or has received an offer of employment) at an institution of higher education, or a related or affiliated nonprofit entity ...” When Naomi read that statute, she saw the word “at” and in a brilliant letter to the USCIS convinced them to give meaning to that word. They did, so the current interpretation of cap exemption includes working both for an institution of higher education and at an institution of higher education. There other authoritative policy letters from the USCIS responding to Naomi’s questions and advocacy. She is responsible for development of a remarkable amount of immigration law and policy. Her work has been impressive.

Q. What mistake you made early in your career and what did you learn from it?

A: I still make my share of mistakes. Earlier in my career when Bob Deasy and I were partners, I would walk into his office and discuss cases and so would our associates. Almost uniformly Deasy would respond with the questions: “Have you read the regulations?”; or “Did you not see the recent memo on that?”

Lesson: Do your homework and update the research. When I or one of the others would tell Deasy that the federal government’s position made no sense he would shoot back, “Don’t be handcuffed by logic."

I’ve learned from my mistakes, but I try to reduce future mistakes by doing the research, checking the sources and trying to anticipate the government’s logic before filing our applications.

"Reprinted with permission from the May 7 issue of Law360. (c) 2015 Portfolio Media, Inc. Further duplication without permission is prohibited. All rights reserved."