L-1 Visa

February 23, 2010

USCIS Issues Information Collection for Form I-129, Petition for Nonimmigrant Worker

The United States Citizenship and Immigration Services (USCIS) has issued information collection for Form I-129, Petition for Nonimmigrant Worker until April 9, 2010.

During this period, USCIS will be evaluating whether to revise Form I-129.

The purpose of this form is for employers to petition for an alien to come to the United States temporarily to perform services or labor, or to receive training, as an H-1B, H-1C, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1 or R-1 nonimmigrant worker. Employers may also use this form to request an extension of stay or change of status for an alien as an E-1, E-2, or TN nonimmigrant.

February 11, 2010

H-1B Admissions at Newark, NJ Airport

by Kellie N. Lego

The American Immigration Lawyers Association (AILA) U.S. Customs and Border Protection (CBP) Liaison Committee received reports from AILA members that CBP inspectors at the Newark, New Jersey airport port of entry were apparently assisting in an investigation involving certain H-1B nonimmigrants from India and certain H-1B petitioner companies.

The CBP inspector’s questions focused on (1) who the individuals worked for, (2) how their pay was computed, (3) who paid their salary, (4) their job duties, and (5) what they were paid. According to the reports, some individuals were subjected to expedited removal and visa cancellation.

After inquiring with CBP headquarters about these alleged incidents, the CBP Liaison Committee was advised that many of the cases involved in the allegations involved companies currently under investigation by U.S. Immigration and Customs Enforcement (ICE) and/or U.S. Citizenship and Immigration Services (USCIS) for ongoing fraud. The CBP provided that upon an inadmissibility finding, the determination to either allow the applicant to withdraw his or her application for admission or to subject the applicant to expedited removal was based on “the totality of the circumstances” and was reviewed on a “case-by-case” basis. The CBP also confirmed that they screen ALL employment-based visa holders to determine admissibility and ensure compliance with entry requirements.

December 24, 2009

Alternatives to the H-1B Visa for Individuals who did not make the H-1B Quota

by Kellie N. Lego

Now that all of the new H-1B visas for the 2010 Fiscal Year have been allocated, What options do Employers who are looking to hire Foreign National Professionals have?

Here are some creative solutions to this problem:

O-1 Visa

April 28, 2009

Legislation to Reform the H-1B Visa Program Introduced by Senators Durbin (D-IL) and Grassley (R-IA)

by Kellie N. Lego

On Thursday, April 23, 2009, Assistant Senate Majority Leader Dick Durbin and Senator Chuck Grassley introduced the H-1B and L-1 Visa Reform Act. This bipartisan legislation would reform the current H-1B and L-1 guest worker programs to prevent abuse and fraud, and to protect American workers.

This legislation calls for a “good faith attempt” to solicit qualified American workers before hiring an H-1B guest worker. Accordingly, Employers would be prohibited from using H-1B visa holders to displace qualified American workers. Additionally, the bill calls for a prohibition against the blatantly discriminatory practice of “H-1B only” ads and would prohibit Employers from hiring additional guest workers if more than 50% of their workforce consisted of H-1B and L-1 visa holders.

To address the issues of fraud and abuse, the bill would allow the Department of Labor (DOL) to initiate investigations without a complaint and without the personal authorization of the DOL Secretary. In addition, the bill would allow the DOL to conduct random audits of companies that utilize the H-1B nonimmigrant visa program. Specifically, the bill calls for annual audits by the DOL for employers who employ a large number of guest-workers.

August 20, 2008

L-1B Visa Requirements and Recent related AAO decision

by Kellie N. Lego

The L-1B intra company business visa allows specialized knowledge employees to transfer from a foreign company to a U.S. parent, affiliated, or subsidiary branch to perform temporary jobs. For a foreign applicant to attain L-1B visa status, three requirements must be met. First and foremost, the petitioning U.S. company must be affiliated with the company abroad, as a branch, subsidiary, or affiliate. This relationship shall be demonstrated either by one entity having control over the other, or by both entities being controlled by the same person or entity. Additionally, the L-1B visa applicant must be employed at the company abroad for at least one of the previous three years before the L-1B visa application is filed with the United States Citizenship and Immigration Services (USCIS). Finally, the employee must be coming to work at the U.S. company to utilize specialized knowledge. An employee with “specialized knowledge” has either a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company; or demonstrates an advanced level of professional or technical expertise, and proprietary knowledge of the organization’s services, products, technology, strategies, or any other corporate function that is essential to the U.S. company’s successful operation.

The Administrative Appeals Office (AAO) recently reviewed a decision certified by the Director of the California Service Center (CSC). The particular case involved the submission of an I-129 petition on behalf of a foreign professional for L-1B nonimmigrant visa classification. The director originally denied the petition after concluding that the petitioner failed to establish that it had been doing business or that the beneficiary would be employed in a capacity requiring specialized knowledge. Subsequently, the petitioner submitted a motion to reopen, and the director entered a new decision denying the petition on the same two grounds. The certified decision was thereafter sent to the AAO for review.

The purpose of review by the AAO is to determine from the documentation produced by the petitioner whether the petitioner had been doing business and whether the beneficiary would be employed in a capacity requiring specialized knowledge. After a thorough review and analysis of the evidence produced by the petitioner, the AAO found that the petitioner had been doing business. Accordingly, the decision of the director as to the first issue dealing with the petitioner’s business had been withdrawn. The AAO then reviewed the evidence in light of the second issue, whether the beneficiary would be working in a specialized knowledge capacity. According to the AAO, the record did not distinguish the beneficiary’s knowledge as more advanced than the knowledge possessed by other people employed by the petitioning organization or by workers employed elsewhere. Based on the evidence presented, the AAO concluded that the beneficiary will not be employed in the United States, and was not employed abroad, in a capacity involving specialized knowledge.