Sometimes US immigration law doesn’t provide clear visa options for people looking to work in America. These individuals are daunted by the process, and as attorneys we often feel like we are trying to fit a round peg into a square hole. But at other times, thankfully, there is more than one option for a client and so it’s our job to talk them through the choices to see which is the overall best fit. This can happen, in particular, with some entrepreneurs who are interested in opening up their own business in the US.
Read moreThe 101 on L-1s
Transferring an employee from a company’s foreign office to their US office is common in today's global world. Conveniently, US immigration law contains a visa for that purpose: the L-1. While some aspects of L-1s can present hurdles (as discussed in more detail below), ultimately, it potentially remains a great visa-type for companies and their employees.
Read moreOPINION: L-1B Careful: the Difficulties of the Specialized Knowledge Visa
If there is anything a seasoned immigration lawyer is sure of, it is to tread carefully with the L-1B visa petition. The L-1B visa is for intra-company transfers of employees who have been working for the foreign parent, subsidiary, or affiliate branch for at least one year. The transferee must be coming to the US branch office of the company to work in a position that requires “specialized knowledge” (whereas an L-1A is for an executive or manager). What exactly “specialized knowledge” means has been a subject so frequently discussed in immigration case law, US Citizenship & Immigration Services (USCIS) memoranda, lawyer forums, conferences, and office water cooler chats, that a person could read for days straight and end up just as confused as they were when they started. After all that, the reader may see no correlation between what they just read and how USCIS currently adjudicates L-1Bs.
Read moreUSA TODAY: "Study: Work visas being denied at a higher rate"
US Citizenship & Immigration Services is denying L-1B specialized knowledge petitions at a higher rate, increasing nearly five-fold in the past six years, according to a report (here in PDF) by the National Foundation for American Policy, a non-partisan organization dedicated to public policy research on trade, immigration, and education. The report notes:
While as recently as FY 2006 the denial rate for L-1B petitions was 6 percent, the denial rate for L-1B petitions rose to 34 percent in FY 2013, after rising to 30 percent in FY 2012 – a more than five-fold increase in the rate of denials despite no new regulation changing the adjudication standard...Time consuming Requests for Evidence (RFE) from adjudicators for L-1B petitions also continued at a high level – 46 percent in FY 2013. That means in 2013 about half of petitions to transfer in employees with specialized knowledge were either denied or delayed by U.S. Citizenship and Immigration Services adjudicators.
USA Today reports that Stuart Anderson, the executive director of the foundation and former head of policy and counselor to the Commissioner of the INS (now USCIS), said the denial increase lines up with the country's recession, noting: "'Some people may have had the impression that by keeping companies from transferring in employees that that somehow was going to promote American jobs[.]'"
Steven Camarota, director of research for the Center for Immigration Studies, which supports lower levels of immigration ("low-immigration, pro-immigrant," they state), notes that L-1A approvals for international managers and executives has increased which "'is a clear indication that getting them is not very hard,'" and that as a consequence "'more and more companies are trying to take advantage of the program at a time of record rates of joblessness and stagnate wages for U.S.-born workers and legal immigrants already here.'"