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Reversal of Fortune

Thursday, November 3, 2011

By any measure, Amit Aharoni is an ideal immigrant: young, highly skilled and entrepreneurial. A 2010 MBA recipient from the Stanford Graduate School of Business, Aharoni raised $1.65 million in venture capital and co-founded, an online cruise booking company. The firm was an immediate success, and created nine jobs for Americans. Unfortunately, Aharoni’s rise in the U.S. high-tech world received a jolt in early October when his H-1B visa was denied and he was forced to leave the country. He decamped to a friend’s place in Vancouver, Canada, where he continued to run his business, via Skype, from his pal’s living room.

An Israeli national, before coming to the U.S., Aharoni graduated from Tel Aviv’s Bar-Ilan University in computer science, and then spent several years working as a product manager and systems architect on behalf of the Israel Defense Forces computer division.

Aharoni’s H-1B denial was based on Citizenship and Immigration Service’s (CIS) belief that his job title at CruiseWise—CEO—does not constitute a “specialty occupation.” Aharoni wasn’t singled out, and it wasn’t a clerical error; denials of this sort have been a pattern for individuals with business positions. According to CIS, the functions of a CEO can be performed by individuals with a variety of degrees, and so CEO does not constitute a specialty occupation.

This view represents a very strict interpretation of what constitutes a specialty occupation. In Aharoni’s case, what is the benefit to the U.S. in denying him an H-1B visa, which is the most commonly used “professional” visa? Moreover, the overly stringent application of the “specialty occupation” designation disadvantages small firms as they are likely to be composed of individuals like Aharoni who, although perform professional duties that require specialized knowledge and higher education, wear several hats, and do not occupy a narrowly defined job slot.

As it happens, Aharoni caught a break – his case was reported by ABC news, and it evidently became an embarrassment for CIS. The agency quickly reversed its decision and granted the Israeli computer whiz a visa.

Glass half-full says give credit to CIS for recognizing their mistake and quickly correcting it.

Glass half empty says this just illustrates the madness that prevails at CIS: first a poor decision that unreasonably interpreted the law, and then a change of heart because the story was picked up by the media. What’s regrettable is that the denial was reversed quietly and without formal confirmation that the job of a CEO is now considered a specialty occupation. Very few immigrants have their visa denials covered by national news organizations; if they did, how many wrong-headed decisions might be reversed? The answer to this question is unknowable, but there are certainly many Aharonis out there—CEOs, Marketing Directors, Presidents—who have had their H-1Bs denied. These individuals then return home, or find a third country that is more open to highly-skilled immigrants.

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