News Update: Encountering L Petition Problems

At the request of a number of senators and congressmen, the Office of Inspector General (OIG) has reviewed the L intra-company transferee visas…

At the request of a number of senators and congressmen, the Office of Inspector General (OIG) has reviewed the L intra-company transferee visas issued over the past 10 years and has found more than 70,000 were issued (full report). The OIG found that the United States Citizenship and Immigration Services (USCIS) approved more than 14,000 L-1A and more than 55,000 L-1B petitions. As these visas do not require a demonstration of unavailability of qualified and able U.S. worker, the issue has been raised whether these approvals are displacing U.S. workers.

As you know, the L classification was created when a number of multinational companies operating in the United States and Canada found that it took more than three years for them to move workers from Ontario, Canada across the Detroit River into Detroit, Michigan. To qualify for the L, the alien worker must have been working for a parent, subsidiary or affiliate company out of the U.S. for a period of at least one year in an executive, managerial or position of specialized knowledge. Initially, the interpretation for specialized knowledge was very strict and subsequently, it was relaxed to be inclusive of proprietary knowledge gained during employment abroad. The alien worker would then be transferred to work for a parent, subsidiary or affiliate company in the U.S. in an executive, managerial or position of specialized knowledge.

The greatest number of L visas has been issued to computer company employees. Frequently, these workers have been outsourced. However, we believe the recommendations of the OIG will result in new rules and regulations being promulgated by the various governmental agencies involved and these rules and regulations will likely have implications upon adjudications of future L petitions being filed by your company. The new regulations and interpretations will likely make it much more difficult to gain L workers. For information on specific recommendations from the OIG, please read further.

USCIS should publish new guidance to clarify its interpretation of specialized knowledge. New regulations will likely narrow, rather than expand, the number of people who may qualify.

USCIS should screen L-1 beneficiaries against a list of aliens previously denied visas. A previous denial or rejection by consular officials should not automatically disqualify the alien from other nonimmigrant visa classifications for which they qualify, but our experience has been that it will likely impose a much higher standard for rejected aliens to get another visa.

USCIS should develop working communications with consular officers. This will be effectuated but the governmental agencies indicate that it would be 2015 before implementation.

Customs and Border Protection should provide more comprehensive training for their port of entry or preflight inspection officers. Presently, the CBP has created a Business Traveler’s Corner webpage as a reference point to which the officers may access.

USCIS should establish a fraud fee collection guideline. The CBP officers will have access to more accurate payment records.

USCIS should make a site visit before extending the new office petitions. This recommendation will have implications upon new businesses utilizing the L classification.

USCIS should provide CBP officers access to VIBE. The USCIS has been able to get information on existing businesses from certain organizations such as Dunn & Bradstreet. The problem arises if the information is not comprehensive and only is provided about long-established businesses.

USCIS should create regulations eliminating “job shops”. This will restrict outsourcing workers and may impact consultant or other similar professional activities.

While many of our corporate clients will conclude that these recommendations should not have negative implications upon their L petitions, our experience has been that when new regulations are promulgated there will be a period of time in which there is confusion as to where the lines may be legally drawn so there will be higher likelihood that Requests for Evidence will be required to gain the approvals. Más lejos, there will be some denials as the USCIS concludes that the nature of the work constitutes prohibited outsourcing.

Another area of potential concern will be the L blanket. There have been complaints by consular officers that the L blanket procedure imposes an adjudicating responsibility for which they have not been trained and they do not have competent capability of adjudicating critically. I anticipate that there will be some changes in those procedures.

If your company is concerned that it will be adversely affected by new rules and regulations, it will be prudent for you to communicate with your industry association. They should confer with the appropriate U.S. governmental agencies to ensure that programs that have been implemented successfully in the past are retained and not adversely affected by the new rules and regulations. In some instances, it may even be necessary to confer with your congressman or senators to ensure that no legislation detrimental to the successful processes and procedures is enacted. Should you wish to discuss these matters more comprehensively, please feel free to contact us.