Over the past several months, United States Citizenship and Immigration Service (USCIS or “the Service”), the unit within the Department of Homeland Security responsible for determining eligibility for immigration benefits, has applied much tougher requirements in a number of employment-based nonimmigrant visa categories. Among the toughest are the standards used when USCIS considers L-1 intracompany transfer petitions.
Lawyers across the country have reported a dramatic increase in requests for evidence (RFE) and denials of L-1 petitions. Despite concerns articulated by immigration practitioners that USCIS officers are deviating from established policies, agency officials at many recent public conferences have maintained that Service officers are acting within applicable statutes, regulations, and current headquarters interpretations. Recent experience suggests, however, that USCIS is scrutinizing L-1 petitions much more closely and applying much stricter standards. As a result, employers must prepare and file more detailed petitions supported by strong documentary evidence.
What/Who is an L-1 intracompany transfer?
The L-1 visa category applies to foreign nationals employed abroad for at least one year in the last three years by a qualifying affiliated organization who will enter the United States to continue employment with a parent, branch, subsidiary, or affiliate of the individual’s foreign employer. The employment abroad and the proposed U.S. job must involve managerial or executive duties or specialized knowledge. Typically, an employer rather easily establishes the existence of a “qualifying organization”—a legal entity that conducts business in the United States and at least one other country—and the qualifying relationship between the foreign entity and the proposed U.S. employer.
Difficulties arise, however, in proving to the satisfaction of the Service adjudicator that the foreign national will assume an executive, managerial, or specialized knowledge role in the United States. Following are brief definitions of each occupational category:
Executives direct the management of the organization or a major component; exercise wide latitude in discretionary decision-making; and receive only general supervision from higher-level executives, the Board of Directors, or shareholders of the company.
Managers direct the organization or a department or subdivision of the employer, control the work of two tiers of subordinate personnel (unless the manager directs the work of a single tier of professionals who hold relevant bachelor’s degrees or equivalent experience) and exercise discretionary authority over day-to-day operations (including authority to make or recommend personnel decisions). “Function” Managers manage a significant component or division of the organization, they may not, in the view of USCIS, “perform” the function but rather must manage it. Personnel with Specialized Knowledge must possess “special” (unusual) knowledge of the company’s product or service as applied in international markets or have an “advanced” level of knowledge of the processes and procedures of the company.
What is now necessary for a successful L-1 petition?
In the past, the USCIS usually accepted a detailed letter from the employer as sufficient evidence to establish the executive, managerial, or specialized nature of the employee’s role. Given the recent increased scrutiny by Service adjudicators, such a letter, submitted without additional primary evidence, may carry little weight with the USCIS officers and will likely result in a lengthy RFE or denial from the USCIS.
In an attempt to avoid such an RFE or denial, employers should consider submitting detailed information and documentation at the outset to establish that the petition meets the regulatory requirements.
In the executive/managerial context, the employer should present a detailed description of the duties performed abroad and to be performed in the United States, including a breakdown of the number of hours/percentage of time that the foreign national has spent and will spend in executive/managerial duties; detailed organizational charts that include the foreign national’s job abroad and the proposed position in the United States as well as superior and subordinate positions; and detailed information about the foreign national’s superiors and the individuals who will report to the foreign national, including job titles and descriptions, salaries, and education and experience levels (and if the foreign national will only manage professional workers, copies of their degree certificates). If the foreign national will not directly supervise employees, the petition should include detailed information of the function to be managed and the foreign national’s latitude of decision-making authority, including the percentage or dollar amount of budgetary control.
In the specialized knowledge context, the employer should define the company’s advanced technology, procedures, and/or processes; the foreign national’s special or advanced knowledge of those technologies, procedures, and/or processes; the ways in which the foreign national gained that knowledge; and the number of other employees within the organization who possess the same level of knowledge and expertise as the foreign national. The employer must also be prepared to present company literature to establish that the company’s technology and methods are advanced and different from those found generally in the market, and the employer should describe the economic harm and business interruption the company would face if required to train a U.S. worker to fill the specialized knowledge position.
Is there an alternative to filing an L-1 petition with the USCIS?
For some employers, yes—approval of a “Blanket” L-1 program can be obtained. If a U.S. entity has been doing business in the United States for at least one year; has three or more domestic and foreign affiliated entities; and has combined U.S. annual sales of at least $25 million, a U.S. workforce of at least 1,000, or has received approval of at least 10 L-1 petitions in the last 12 months, the employer may qualify for the L-1 Blanket Program. After obtaining approval of an L-1 blanket petition from the USCIS, the employer is eligible to send its potential L-1 employees to a U.S. consulate or embassy outside of the U.S. to apply for L-1 classification and visa issuance, bypassing the adjudication of an L-1 petition by the USCIS. The regulatory requirements, including the definitions of managerial, executive, and specialized knowledge, remain almost identical, but L-1 applications at U.S. consulates and embassies typically receive less scrutiny and benefit from a higher rate of approval. In addition, the L-1 blanket process is generally faster, allowing a foreign national to receive the L-1 visa stamp in a matter of weeks as opposed to months via the USCIS filing.
For some foreign nationals, alternative nonimmigrant visas, such as the H-1B, E-1, E-2 or E-3, TN, J-1, O or P work-authorized categories, may be available. A customized analysis of each foreign national’s background and proposed job is necessary to determine the best work visa strategy for the circumstances.