Intra-Company Transfer Visas: L-1s for Experienced Practitioners

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1 Intra-Company Transfer Visas: L-1s for Experienced Practitioners Sam Adair (dl), Austin, TX Lisa Krueger Khan, Orlando, FL Cyrus Mehta, New York, NY Current Standards of Specialized Knowledge Being Applied for L-1B Petitions at Consulates and at USCIS Definition of Specialized Knowledge Sec. 214(c)(2)(B) provides: For purposes of section 101(a)(15)(L), an alien is considered to be serving in a capacity involving specialized knowledge with respect to a company if the alien has 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. In 1990, Congress deleted the proprietary knowledge element and the requirement that knowledge be of the type not readily available in the US labor market.

2 Definition of Specialized Knowledge The regulation at 8 CFR Section 214.2(l)(1)(ii)(D) defines specialized knowledge: Special knowledge possessed by an individual of the petitioning organization s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization s processes and procedures. Also see Puleo Memo, March 9, 1994, AILA InfoNet Doc. No Ohata Memo, December 20, 2002, AILA InfoNet Doc. No L-1B Visa Standard based on Puleo and Ohata Memos The L-1B needs to possess specialized knowledge of the company s products, services, research, equipment, techniques, management or other interests. The specialized knowledge must have its application in international markets or must be held at an advanced level. However, this knowledge need only be different and not proprietary or unique. The specialized knowledge need not be narrowly held throughout the company. L-1B Standards from Puleo/Ohata Memos Possesses knowledge that is valuable to employer s competitiveness in market place; Is qualified to contribute to US employer s knowledge of foreign operating conditions as a result of specialized knowledge; Has been utilized abroad in significant assignments enhancing employer s productivity, competitiveness, image

3 L-1B Standards Based on Puleo/Ohata Memos Possesses knowledge gained only through prior experience with employer; Possesses knowledge of product/process which cannot be easily transferred; Possesses specialized or advanced knowledge that is different. L-1B Standards Based on Puleo/Ohata Memos Specialized knowledge of company product must be noteworthy or uncommon; Specialized knowledge of company processes and procedures need to be advanced. Advanced knowledge need not be narrowly held. Current L-1B Standard - Reviving Pre-90 Interpretations on Specialized Knowledge GST Case Employment at higher levels in the hierarchy with managerial and executive employees. Class of aliens must be narrowly drawn and monitored by USICS. No indication of Congress to liberalize the definition in Only key persons; not all specialists can be L-1Bs. Look beyond duties and consider beneficiary s knowledge of business product, services, operations, etc. L-1B not intended to remedy shortage of workers in the US.

4 Why GST Standard Is Flawed See AILA Letter to Mayorkas, January 4, 2012 AILA InfoNet Doc. No Erroneously holds that 1990 amendments were not meant to broaden L-1B standard, other than deleting that knowledge had to be proprietary. Relies on restrictive standards, such as Matter of Penner. 18 I&N Dec. 49. Why GSA Reasoning Is Flawed Also relied on Matter of Colley, 118 I&N Dec. 117 & Sandoz Corp. Protection Corp., 17 I&N Dec All these cases drew arbitrary distinctions between skilled workers and specialized knowledge workers who carry out a key process or function which is essential to the organization. RFE Trends for L-1B Specialized Knowledge Requires adherence to pre-1990 Penner standard essential knowledge related to proprietary interests of business...involving skills not readily available in job market. Imposes additional time beyond 1 year to acquire specialized knowledge. Specialized knowledge cannot be held broadly in company.

5 RFE Trends for Specialized Knowledge Elevating baseline for specialized knowledge beyond ordinary dictionary definition must be key or elevated class of employees. If L-1 petitioner has developed IT applications for client company, may not be considered specialized knowledge unique to petitioner. RFE Trends for Specialized Knowledge Distinguishes between mere familiarity and specialized knowledge of company s products, services, etc. The tools and software applications must be essential to the petitioner and not essential to the client L-1 Visa Reform Law 2004 law prohibits placement of L-1B stationed primarily at Third Party site and will be principally under the control and supervision of the unaffiliated employer; or Placement at third party site is essentially and arrangement to provide labor for unaffiliated employer.

6 2004 L Visa Reform Law AFM so long as ultimate authority over the L-1 worker s daily duties remains within petitioner, some intervening third party supervision or input between the worker and the L organization does not render the worker ineligible for L-1B. DOS Cable (2004)- right of control determines the employer-employee relationship; rather than the source of salary. AILA InfoNet at Doc. No L Blanket Petitioner has office and has been doing business in the US for one year. Petitioner has 3 or more domestic and foreign branches, subsidiaries or affiliates. Petitioner and entities are engaged in commercial trade or services. Combined annual sales of $25 million, US workforce of 1,000 or received approval of at least 10 Ls in last 12 months. Blanket L-1B Knowledge Professional Person with specialized knowledge who is a member of the professions. Must have a professional degree, which equates to a US bachelor s degree. Generally, education and work experience is not acceptable.

7 Who is a function manager? Defined at 8 CFR 214.2(l)(1)(ii)(B) Managerial capacity means an assignment within the organization in which the employee primarily Primarily = more than 50% of the time Who is a function manager? Manages the organization, or a department, subdivision, function, or component of the organization Define what the L-1A manages Who is a function manager? Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or department or subdivision of the organization If not supervising and controlling other supervisors, managers or professionals= Function Manager. Alternative: Executive! Either way, stick with your classification-- and make sure USCIS does, too

8 Who is a function manager? Proving management of an essential function or a department or subdivision Explain how function is essential/critical for the organization (quantify if possible) Details: employer letter, job description with duties and %, sub-categorize under the 4 prongs, entity chart, examples of management decisions, memos, s, contracts, etc. Who is a function manager? Has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) if another employee or other employees are directly supervised; if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed Direct supervision of employees, which can include non-supervisory, non-professional or non-managerial, OR Functions at a senior level Indirect supervision of subordinate staff such as subcontractors Important: others carry out the activities of the managed function Who is a function manager? Exercises direction over the day-to-day operations of the activity or function for which the employee has authority How discretion is exercised? Decision-making and reporting process, degree of autonomy Other managerial clues: title, high salary and/or company benefits (company car, expense account, or performance-based bonus)

9 Consular Processing Issues DOS Guidance on L visas and Specialized Knowledge Specialized Knowledge Guidance Employer/Employee Relationship Control of Employee Consular Processing Timing and Eligibility Blanket L-1B degree requirements Small Companies can often expect delays Issues in Third Country Processing Many consulates restrict L-1 processing if not established in country Consular Processing Filing an extension at USCIS after entry on a Blanket L-1 Watch for RFE May be advisable to renew the visa with a blanket L-1 Extensions of L-1 status based on Intermittent L-1 usage

10 Consular Processing Documentation at the consulate is critical Prepare clear documentation to demonstrate relationships between entities, particularly when in different industries Have your education documents in order Time Matters At least one continuous year of full-time employment abroad with a qualifying organization within the three years preceding the filing of the petition 8 CFR One year must take place outside the US Time spent in US (business or pleasure trips) or employment for related US entity in US does not interrupt continuous employment but does not count towards it either Time Matters Conflict between regs ( within the 3 years preceding the filing of the petition ) & statute INA 101(a)(15)(L) ( within 3 years preceding the time of his application for admission into the United States )

11 Time Matters Readmission as an L-1 is allowed after the 5 or 7 year limit if: - Have resided and been physically present outside the US for the immediate prior year - Brief visits to the US don t interrupt the 1 year, but don t count towards its fulfillment either Time Matters New Office: has been doing business in the US for less than 1 year A pre-existing, but inactive US company, can be a new office What to do when Year 1 of the new office did not go well When to file the I-140 petition Exceptions for Canadians Do not need prior approval from USCIS Take L-1 application packet directly to the POE Clear Documentation is critical Similar to Consular Processing of a Blanket L-1 request

12 Questions & Answers