L-1b

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.

Still an Uphill Battle for L-1B Petitioners

On January 13, U.S. District Judge Stephen V. Wilson refused, Chain-Sys Corp.’s, a Michigan technology company, motion for summary judgment accusing U.S. Citizenship and Immigration Services officials of improperly denying an L-1B visa for a programmer from India, saying the agency had a reasonable foundation for its decision. Chain-Sys, which creates software applications, most notably for software giant Oracle Corp., had sought an L-1B visa for its employee, Anbarasan Murugan, a senior project manager and technical specialist at Chain-Sys who had worked for the company in India for eight years. Chain-Sys has been arguing two points. First, the agency was wrong to determine both that Murugan’s knowledge of the company’s proprietary software was not itself specialized knowledge; and second that Chain-Sys hadn’t shown that others employed in the industry couldn’t easily acquire Murugan’s knowledge.

As to the first argument, the judge noted that the fact that a person works with proprietary information or has a high level of technical skill is not enough to establish specialized knowledge under the USCIS’ interpretation of federal immigration law. As to the second argument, the judge said he couldn’t conclude that USCIS “was compelled to find that it would take years to impart Murugan’s knowledge alone on another individual already in the industry.” In general, it is safe to assume that your company’s propriety technology is not commonly held, is complex and is difficult to impart to others. However, this decision shows that when petitioning for an L-1B employee it is still best to demonstrate as many as the factors that show specialized knowledge as possible, even though the presence of one or more of these (or similar) factors is sufficient in some cases to establish that a beneficiary has specialized knowledge.

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.

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.

Sen. Charles Grassley “troubled” by a new L-1B policy memo

The main reason Senator Grassley was troubled was because he believed that the new memo could result in hundreds of thousands of temporary foreign workers being admitted into the U.S. … wouldn’t that be terrible! Senator Grassley also believed that “A more liberal definition of ‘specialized knowledge’ that causes hundreds of thousands of additional L-1B workers to be admitted to the country will also accelerate the offshoring of jobs from the United States.” I am not sure which memo Senator Grassley read but the new L-1B has not “opened the flood gates” in the L-1B category. The memo still provides too much subjective review by Officers. The memo also does not provide bright line definitions of specialized knowledge as was originally hoped. However, if read carefully the memo provides guidance to petitioners as to what evidence best demonstrates specialized knowledge in USCIS’ eyes. Please see my article in ILW.com for a detailed review of the L-1B memo and a breakdown of the factors that tend to demonstrate specialized knowledge.

Final Version of L-1B Adjudication Policy Memorandum Released

On August 17, 2015 USCIS released the final version of its policy memo that will guide the future adjudication of the L-1B visa classification. This memo will apply to all L-1B petitions pending or filed with USCIS on or after August 31, 2015. If petitioners will have a petition pending with USCIS beyond August 31, 2015 they should be using this memo as guidance to prepare their petitions if they are already not doing so.

USCIS Releases L-1B Adjudications Policy Memo

The big day is here! USCIS released the first glimpse of what the new L1B guidance will look like, which includes definitions for special and advanced knowledge:

• special knowledge, which is knowledge of the petitioning employer’s product, service, research, equipment, techniques, management, or other interests and its applications in international markets that is demonstrably distinct or uncommon in comparison to that generally found in the particular industry or within the petitioning employer; or
• advanced knowledge, which is knowledge or expertise in the organization’s specific processes and procedures that is not commonly found in the relevant industry and is greatly developed or further along in progress, complexity and understanding than that generally found within the petitioning employer.

In meeting these definitions, the main criteria will be a comparing the beneficiary’s knowledge against that of others, particularly those within the petitioner’s organization.
Other big developments from this memo include: the ability to easily and inexpensively impart the specialized knowledge to other individuals will continue to be a factor considered. Specialized knowledge need not be proprietary or unique to the petitioning organization. USCIS will not be adding a labor market test to the L1B. Specialized knowledge need not be narrowly held within the petitioning organization but how many hold it within the US organization will be “considered carefully” by officers.

Remember, this is not a final rule yet and some things might still change but it looks like we are getting a solid foundation to build future L-1B petition on. Hammond Law Group will provide its clients with a detailed analysis.

CBP is “Optimizing” Processing for first-time Canadian TN and L Applicants

As of September, U.S. Customs and Border Protection (CBP) is optimizing processing for first-time Canadian TN and L applicants at 14 designated ports of entry including 4 preclearance locations. According to CBP, optimized processing will ensure a more efficient approach to processing the high volume of applications received every day. Optimized processing is only available at certain times for some ports. For a complete list and additional information, please see http://www.cbp.gov/travel/international-visitors/canada-mexico-travel. We will see if optimized processing is good or bad thing and will provide an update once we have more information.

Canada has eyes set on H-1b and L-1b workers

Our friends to the north have been observing our current immigration system and have noted that the US policy and practice at present is to refuse work visas to high tech workers (STEM grads), entrepreneurs, and specialized workers from international companies and have decided that they may be able to take advantage of our ineptitude. I can only imagine the discussion, maybe it went something like this (picture with a Molson and hockey in the background, of course) “Don’t you think we could use an influx of some smart, talented, tax-paying, revenue creating  international workers, Eh ?”   Seems so simple doesn’t it, Washington DC ! With the current culture of NO so prevalent at the USCIS service centers and the failure to produce any immigration reform that among other things addresses, the over 20 year wait for a green card for an Indian national IT engineer, it is not surprising that scores of quality international workers will seek alternative opportunities and that other industrialized nations will seek to create options for them. We can only hope that they will use their Canadian resident cards to vacation in Florida and Arizona in the winter.

Ever been late by 30 minutes ?

This really isn’t directly relevant to IT workers but, I found it interesting so I thought I would share. Often, we talk about the “Culture of No” that is so pervasive at the USCIS and US Consulates and we struggles to understand how someone can have been found to possess specialized knowledge the last 3 times their case was reviewed but, the latest L-1b extension was denied ? Or how a systems analyst has been deemed to be a specialty occupation for umpteen years but, now the California Service Center says it is not ? Or how they can, with a straight face claim that an H-1b employee who moves to a new building across campus warrants revocation ? If those questions puzzle you, check this story out. A backpacker here on a B tourist visa was arrested and detained because he was leaving the US 30 minutes past midnight on the day his visa expired.  I feel so much safer that he is behind bars !