L-1

Canadian L-1 Applicants at Blaine, Washington Ports of Entry

Beginning April 30, 2018, U.S. Customs and Border Protection (CBP) will no longer adjudicate L-1 intracompany transferee petitions for Canadian citizens at the Blaine, Washington ports of entry. Canadians seeking L-1 status who wish to enter the United States through Blaine must first file their petitions with the USCIS California Service Center for processing. This will apply to both L-1 admissions based on an employer’s previously approved blanket petition and individual L-1 petitions. Once an approval notice is issued, the beneficiary may use it at any northern border port of entry to request admission.

It has been strongly advised that applicants wait for the USCIS approval notice before applying for admission at the border. However, USCIS has indicated that applicants could be able to bring the filing receipt to the border for entry, at which point CBP would contact USCIS to verify whether the case would be approved, and then act on the admission request accordingly. USCIS is expected to provide further information on the pilot program as the implementation date nears and HLG will provide updates as they are available.

Initially, the pilot program will operate only at Blaine, Washington ports of entry. CBP is expected to continue to adjudicate Canadian L-1 applications for admission at other ports of entry until further notice. USCIS also has indicated that the program could be implemented across the northern U.S. ports of entry, and may also be extended to other immigration categories, such as the TN!

If you are a Canadian planning to apply for admission at the Blaine ports of entry for an L-1 visa, you need to take the upcoming pilot program into account when planning your travel.

L-1 RFE’s are handed out inconsistently between Service Centers?

The Service’s annual 2016 report to the Ombudsman was recently release and contained concerning information for L-1 visa petitioners. Unfortunately, the RFE rates of L-1 visas appear to continue to have no rhyme or reason.

“L-1A RFE data shows inverse trending between the CSC and the VSC. For example, CSC’s L-1A rates surged to 55 percent in FY 2015, its highest level in 20 years, while in the same period, VSC’s rate dropped dramatically from a high of 44.6 percent in FY 2014, to 29 percent in FY 2015. The number of L-1B RFEs dropped in FY 2015 at both service centers, to 44 percent at the CSC and 33 percent at the VSC.” See Ombudsman Report p. 59.

The L-1 memo, L-1B Policy Guidance Memorandum, was supposed to help alleviate some of this uncertainty. “It does not appear that RFE rates in FY 2015 were affected by this guidance, as it did not become final until August 17, 2015.” See Ombudsman Report p. 59. A very small sample size granted, but this memo was supposed to be seminal in the L-1 category. I’ll be eagerly anticipating next year’s report. What we can take away is that it looks like you’ll have a slightly better chance of getting an L-1A through Vermont and that L-1B’s RFE’s have dropped but not as much as we were hoping for when the L-1B Policy Guidance Memo was released.

H1-B and L-1 Reform Bill Introduced

On July 8, 2016, Bill Pascrell Jr., Democrat – New Jersey, introduced legislation Thursday designed to “overhaul” the H1-B and L-1 visa programs. H-1B and L-1 Visa Reform Act of 2016, or H.R. 5657. The bill is being introduced under the guise of protecting workers and cracking down on foreign outsourcing companies that “take high-skill jobs away from Americans.”

Two of the more concerning provisions of the bill include: Requiring employers to conduct a labor market test before hiring H-1B workers and prohibiting companies from hiring H-1B employees if they employ more than 50 people and if more than half of their workers are H-1B and L-1 visa holders!

The bill is co-sponsored by Rep. Dana Rohrabacher, R-Calif., who previously introduced a similar version of the measure in 2010. So, hopefully like last time this bill does not gain enough traction in Congress to move forward. Nonetheless, it is still worrisome to hear that these changes are be given any kind of consideration.

Updates to Increases in H-1B and L-1 Petition Fees

The Consolidated Appropriations Act, 2016 (Public Law 114-113) was signed into law on December 18, 2015 and increased the fee for certain H-1B and L-1 petitioners. USCIS issued a web alert today that the additional fee now applies when a petitioner employs 50 or more individuals in the United States, with more than 50% of those employees currently in H-1B or L (including L-1A and L-1B) nonimmigrant status.
The additional fee must be included (1) with new petitions seeking H or L status or (2) when the petitioner seeks to have the nonimmigrant in H or L status change employers.

This is a departure from what the previously published regulations on the topic indicated, which also required the additional fee for extensions of H or L status. As things stand today, these are the only types of petitions that requires the additional fee but based on the back and forth that has surrounded this rule’s roll out, we will not know for sure until USCIS revises its instructions for the Form I-129.

H-1b and L-1 Filing fees to double

Buried in the Omnibus Appropriations Bill that Congress is currently considering is a provision that would re-instate and double the “penalty” filing fee imposed on employers with 50 or more employees where 50% of those employees are H-1b or L-1b visa holders. The new fee would also apply to extensions. The new penalty fee for H-1b petitions would be $4,000 and for L-1 cases, $4500.

Public Law 111-230 Fee Expiration Opens Window

On October 1, 2015, Congress failed to extend the additional filing fees for petitioners whose workforces are heavily reliant on H-1B and L-1 employees. The law, known as Public Law 111-230, required an extra $2,000 fee for certain H-1B petitions, and a $2,250 fee for L-1A and L-1B petitions, whose company had 50 or more employees in the U.S., with over half of those workers on H-1B or L-1 visas.

All H-1B and L-1 fees, filed on or after October 1, should still include the base I-129 fee, Fraud Prevention and Detection Fee, and American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) Fee, when applicable. Petitions with incorrect fees may be rejected. However, unless this fee gets reauthorized, petitions should enjoy the reprieve.

L-1B Template for RFE’s

U.S. Citizenship and Immigration Services has issued a draft template of requests for evidence (RFE) for L-1B petitions and is taking comments on the proposed form, a copy of which can be found here. USCIS will take comments until July 31. This is a follow up to its Memorandum on L-1B Adjudications Policy earlier this year. Even though the new L-1B Adjudications memo has not gone into effect, it appears that both USCIS and practitioners are looking ahead to when the rule does become final. The main benefit that can be gleaned from the RFE template is it that it contains an expansive list of evidence that can be provided to demonstrate that the requirements of an L-1B visa are met, including specialized knowledge.

U.S. Consulate in Hyderabad Announces Change

Last week, the U.S. Consulate in Hyderabad announced changes to the process of submission of documents for H-1b and L-1 visa issuance. No longer will they require documents to be submitted in advance to the VFS but, documents must be brought in person at the time of the interview.  This change also applies to persons that are part of the BEP program.

CBP on L visas under NAFTA

The CBP released a statement on its procedures for handling L petitions under NAFTA.  Our experience is that CBP officers have a far greater grasp of the L regulatory standards and far less of a political agenda  than their US Consulate brethren and that well-prepared L petitions are met with routine approval at the border.

DHS Releases data on NIV usage

Last week, the DHS released data regarding NIV usage in FY2010. Although it conatins a lot of data that could easily go into the category of “why would anyone need to know that ?” it is probably worth the 5 minutes it will take to skim through it.