Q&A With Kirton McConkie's Jacob Muklewicz

April 30, 2015
Immigration Law360

Law360, New York (April 30, 2015, 2:26 PM ET)

Jacob T. Muklewicz is a Shareholder in Kirton McConkie PC's Salt Lake City office. Muklewicz's practice focuses on business and investor immigration. He helps employers and investors obtain the proper visas for their executive, managerial and professional personnel and their families. He also counsels foreign nationals regarding the employment-based green card and naturalization processes.

Jacob earned his bachelor’s degree from Brigham Young University, where he majored in international relations and minored in Russian. He regularly serves as an English-Polish translator and is also fluent in Russian and Spanish. Jacob earned his juris doctor and certificate in international trade and development from The Ohio State University's Moritz College of Law. While in law school, Jacob was a foreign language and area studies fellow in Russian.

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

A: Recently, my most challenging cases have involved L-1A petitions for executives and managers of new offices. When international companies establish new offices in the U.S., many initially transfer only a few top-level executives and managers who will continue to be supported by professional staff employed by related foreign entities. Profitable and efficient companies effectively use modern technology allowing their executive and managerial personnel to operate in the U.S. without having to initially hire professionals in the U.S.

For several years, adjudicators within the U.S. Citizenship and Immigration Services have denied new office L-1A petitions because the executives and managers were not directing the activities of professional staff in the U.S. The USCIS erroneously dismissed arguments allowing for functional managers while ignoring the realities of doing business in the 21st century, namely using technology allowing persons to communicate instantaneously across the globe.

The Administrative Appeals Office has overturned many of the USCIS’ denials of new office L-1A petitions. In these decisions, the AAO has noted that executives and managers who will continue receiving support from professional staff abroad through modern technology do not need to initially show a full professional staff in the U.S. Hopefully, the USCIS will apply the AAO’s rationale approach in future new office L-1A cases.

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

A: The annual H-1B cap significantly stifles economic growth, not only for U.S. business but also for foreign students pursuing their career goals of working in this country. While the president issues executive orders granting employment authorization documents to persons living unlawfully in the U.S., foreign students who have never broken the law cannot apply their knowledge gained in the U.S. because of the H-1B cap.

The immigration system should be reformed to encourage the pursuit of education and employment. Congress can achieve these goals by enacting key reforms.

First, Congress should eliminate the bars for unlawful presence. Doing so would allow persons unlawfully present to obtain lawful status. The bars have the unintended consequence of encouraging people to remain in the U.S. unlawfully because after accruing a certain amount of unlawful presence, the only way for many to obtain lawful status is to depart the U.S. and reside abroad for at least three or 10 years.

Second, Congress should replace the unlawful presence bars with monetary fines. Persons who are out of status should pay fines for each year of unlawful presence. This will discourage persons from remaining unlawfully in the U.S. while encouraging them to obtain lawful status.

Third, Congress should eliminate the H-1B cap. As more persons seek educational and professional opportunities to legalize their status, Congress must remove the artificial barrier that prevents persons from realizing the opportunities of the American dream. By removing the H-1B cap, companies will be able to expand and grow allowing those who have pursued education to reap the rewards of their studies.

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

A: As discussed above, the current immigration system does not encourage and reward people for pursuing higher education and following the rule of law. Instead, it rewards some who have broken the law while shutting out those who have never done so. We must reform the immigration system so it allows those out of status the opportunity to live, study and work lawfully in the U.S. without eroding the rule of law and discouraging those who comply with our immigration laws. Simply stated, those who break the law should not be in a better position than those who keep the law.

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

A: David W. Cook, a shareholder at Vorys Sater Seymour and Pease LLP, who leads that firm’s immigration section, served as my mentor after I graduated law school. Dave taught me to always think of as many alternatives as possible when analyzing an immigration case. I learned from Dave that, often, there is not only one path for obtaining an employment-based, nonimmigrant visa or employment-based green card. Instead, Dave taught me that if I learn as much as possible about the employer’s business and the employee’s background, I could discover several possible visa and green card alternatives.

Dave’s practical business approach has had a lasting influence on me throughout my career. I strive to analyze situations both as broadly and deeply as possible. I always want clients to have the best answer among several viable alternatives and not just one acceptable answer.

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

A: As a young associate at Vorys, I was frequently satisfied identifying the one obvious visa option in employment cases. I focused on the basic information with which I was presented to me, such as the U.S. employer’s information and the foreign national’s resume. Because of my limited understanding of clients’ businesses, employees’ backgrounds and the employment-based visa categories, I did not know what additional questions to ask.

I learned how to think outside of the box while closely observing my mentor, Dave Cook, and how he always probed and asked questions. He inquired about the company’s business in the U.S., whether the company operated abroad and about the ownership structure of the U.S. company. He also asked about the foreign national’s background, including whether he or she had dual citizenship, other academic degrees or professional experience not listed on the resume, or even relatives in the U.S.

While discussing the initial visa with the company and employee, Dave also thought two steps ahead, looking at whether or not the company would have to change visas in order to accomplish longer term objectives and how we would pursue the green card process.

Thanks to Dave’s patient mentoring, I learned not to limit myself to the information in front of me but instead to ask questions and obtain as many details as possible.
 
This article is for general information purposes and is not intended to be and should not be taken as legal advice.