Fakhoury Law Group, PC
October 9, 2014
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Agenda
1. Introduction to Fakhoury Law Group, PC
2. History of the L-1 Category
3. Recent Adjudications and Filings
4. L-1 Qualifications and Requirements
5. Evolution of the L-1
6. Trends and Facts
7. Q&A
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About Fakhoury Law Group, PC
_______________________________________________________
• Founded in 1997, global staff of over 60
attorneys, paralegals and immigration
consultants.
• Premier- AV Rated Immigration law Firm.
• Leaders in providing Global Immigration
Services for over 100 countries.
• Multi-national presence with offices and
partners across the globe
• ISO 9001-2008 certified
Exceptional
Legal
Expertise
Lean
Processes
and
Technology
Outstanding
Value Proposition
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Fakhoury Law Group (FLG) Overview
• FLG provides its business-based clients with comprehensive global immigration
services in more than 100 countries
• Our business model is built upon three main tenants:
1. Exceptional legal expertise
• Numerous accolades for outstanding legal expertise and high ethics
such as AV-rating from Martindale Hubbell and member of the ABIL
Alliance
• Many scholarly publications on immigration matters
• Outstanding approval ratings
2. Lean processes and technology
• Six Sigma and ISO certified
• Web-based case management tool
• International office locations for around-the-clock service
3. Outstanding value proposition
• Fixed fee model that facilitates corporate budgeting and encourages
efficiency
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Purpose of L-1 Visa
• Congress created the L-1 Visa category in 1970 to improve the
Global competitiveness of U.S. businesses by allowing companies to
effectuate quick, temporary transfers of key employees into the
United States.
• L-1 visas were used as an effective tool for multinational companies.
• This was reaffirmed through the Immigration Act of 1990 (IMMACT).
• In IMMACT, Congress confirmed that L-1s were valuable and must
be broadened to accommodate the increasingly globalized economy.
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History
of to
Legislative
Acts for the L-1 Category:
Introduction
L-1 Visa Category
1970 Amendments to the
Immigration and Nationality Act
8 CFR § 214.2(I)(1)(ii)(D)(1991)
Established the L-1 Visa Program
Amended the Definition of Specialized
Knowledge in the Immigration Act of 1970
8 Code of Federal Regulations
(CFR) § 214.2 (I)(1)(ii)(D)(1987)
North American Free Trade
Agreement of 1994
Amended the Regulatory Definition of
Specialized Knowledge
Allowed Canadian & Mexican Nationals to
Temporarily Enter the US by Applying for
Immigration Benefits at POE
Immigration Act of 1990 (IMMACT)
L-1 Visa and H-1B Visa Reform Act of
2004
Provided the First Statutory Definition of
Specialized Knowledge
Employees with Specialized Knowledge who will
be Primarily Located Offsite must be Controlled
and Supervised by the Petitioning Company.
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Evolution of the L-1 Visa
• Congress has not made any definitional changes to L-1 visas since
IMMACT
• 2004 Neufeld Memo and 3rd Party Placements for the L-1A Manager
or Executive
• L-1 has come under intense scrutiny from federal agencies.
• DHS and DOS have considerably narrowed qualifying standards for
L-1 visas.
• One big target has been the L-1B visa. The government argues it
should apply to a very small number of individuals.
• DHS and DOS stated that Congress intended the L-1 visa to be
narrowly drawn, although this intent is not found in the regulations or
most recent legislative history of the law.
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L-1
Visa Category
Introduction
to L-1 Visa Category
L-1A
L-1B
For managers and executives.
For personnel who have specialized
knowledge of the company's product,
service, procedure or other interest.
Validity: up to 7 Years
Validity: up to 5 years
L-1 Qualifying Requirements for Employers and Foreign Nationals
•
U.S. company must be a “qualifying organization” that does business in the U.S. and
one overseas company.
•
Foreign National must have worked abroad for the overseas company for a
continuous period of one year within the last three years.
•
The Foreign National must be coming to the U.S. to work in “managerial capacity” or
“executive capacity” or “specialized knowledge capacity.”
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L-1 Visa Category
Accompanying Dependents
Dependents are eligible for L2 status.
Dependent Spouses in L2 status may work in the U.S.
Dependent Children in L2 status may not work, but L2 status does
allow for schooling in the US
Duration & Renewals
Maximum period granted cannot exceed 3 years.
Extensions up to a total of 7 years for L1A; 5 years for L1B
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L1As – Managerial: Definition & Trends
Definition
Chapter 8, Section 214.2(l)(1)(ii)(B) of the Code of Federal Regulations “Managerial Capacity” means an assignment in an organization in which the
employee primarily:
1. Manages the organization, or a department, subdivision, function, or
component.
2. Supervises or controls work of professionals, managerial employees, etc., or
supervises a function, department, or subdivision of the organization.
3. Has authority to hire or fire personnel, or recommend other personnel
actions, or functions at senior level with respect to function managed.
4. Exercised discretion over the day-to-day operations of the activity or function
for which the employee has authority.
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L1Bs – Specialized Knowledge
Definition of Specialized Knowledge
Specialized 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
organizations processes and procedures
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Blanket L Petition
Eligibility for blanket L certification may be established if:
• The petitioner and each of the qualifying organizations are engaged
in commercial trade or services;
• The petitioner has an office in the United States which has been
doing business for one year or more;
• The petitioner has three or more domestic and foreign branches,
subsidiaries, and affiliates; and
• The petitioner along with the other qualifying organizations meet
one of the following criteria:
• Have obtained at least 10 L-1 approvals during the previous
12-month period;
• Have U.S. subsidiaries or affiliates with combined annual sales
of at least $25 million; or
• Have a U.S. work force of at least 1,000 employees.
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USCIS
Guidance
(Binding
Introduction
to L-1 Visa
CategoryAuthority)
Puleo Memorandum (3/9/1994)
James A. Puleo, issued a memorandum providing field officers with
guidance on the proper interpretation of the statutory definition of
“specialized knowledge.”
Mr. Puleo states: The common theme which runs through these
examples is that the knowledge which the beneficiary possesses,
“whether it is knowledge of a process or a product, would be difficult to
impart to another individual without significant economic
inconvenience to the United States or foreign firm. The knowledge is
not generally known and is of some complexity.”
Source: AFM Appendix 32-1
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USCIS
Guidance
(Binding
Introduction
to L-1 Visa
CategoryAuthority)
Mr. Puleo also sets forth characteristics (not inclusive) of
specialized knowledge:
1. Foreign National possess valuable knowledge for employer’s
competitiveness in the market place.
2. Foreign National is qualified to contribute to the US employers
knowledge of foreign operation conditions as a result of special
knowledge not generally found in the industry.
3. Foreign National worked abroad in a capacity involving significant
assignments which have enhanced the employers productivity,
competitiveness, image or financial position.
4. Foreign National has knowledge of a product or process which
cannot be easily transferred or taught to another individual.
5. Foreign National has knowledge that can be gained only through
prior experience with that employer.
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Administrative
Office (AAO) Guidance:
Introduction
to L-1 Appeals
Visa Category
Matter of Colley (Binding) 6/19/1981
AAO takes the position that most employees today are specialist and
have been trained and given specialized knowledge and not all
employees who are using this knowledge and/or training are eligible
for L-1B classification.
AAO concludes employee must be a “key” person who has
managerial qualities.
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Administrative
Office (AAO) Guidance:
Introduction
to L-1 Appeals
Visa Category
Matter of Penner (Binding) 3/1/1982
Reviewed the legislative intent behind the specialized knowledge
category, and noted the number of admissions under the L-1 category
“will not be large” and that “the class of persons eligible for such
nonimmigrant visas is narrowly drawn and will be carefully regulated
by the Immigration and Naturalization Service.”
Concerned that a large number of individuals would qualify for the L-1
rather than “key personnel” that Congress intended.
House Report indicated various witnesses attested that it was
understood the legislation would allow “high-level people,” “experts,”
“individuals” with “unique” skill, and the L-1B category would not
include “lower categories” of workers or “skilled craft workers.”
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Administrative
Office (AAO) Guidance
Introduction
to L-1 Appeals
Visa Category
Matter of GS Technical Services, Inc. (GST) (Non-binding)
07/22/2008
Routine work experience and knowledge of a company’s products do
not constitute specialized knowledge.
Special knowledge may not be held widespread throughout the
company, and is limited to only a few key employees within the
company.
Contradicts guidance provided by James Puleo in 1994, which
appears in the USCIS’ Adjudicators Field Manual.
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USCIS Ombudsman’s
Report
Introduction
to L-1 Visa Category
USCIS Ombudsman’s Report (June 30th, 2010)
• GST casts doubt on the L-1B agency guidance in the AFM and in the 1994
Puleo memo.
th
USCIS Ombudsman’s Report (June 30 , 2010)
• GST provides a higher standard for specialized knowledge than that found in
AFM.
• the
GST
casts doubt on the L-1B agency guidance in the AFM and in the 1994
Puleo memo;
• Despite
the fact GST is a non-precedent decision, USCIS adjudicators are
incorporating its logic into L-1B review process.
• GST provides a higher standard for specialized knowledge than that found in
the AFM;
• Reliance on a non-precedent decisions, rather than binding AFM, undermines
rule ofthe
lawfact
andGST
results
inconsistent adjudications.
• the
Despite
is ainnon-precedent
decision, USCIS adjudicators are
incorporating its logic into L-1B review process;
• It is unclear whether the USCIS expects adjudicators to follow the guidance in
AFM oron
to a
apply
the GST approach.
• the
Reliance
non-precedent
decisions, rather than binding AFM, undermines
the rule of law and results in inconsistent adjudications;
• It is unclear whether the USCIS expects adjudicators to follow the guidance in
the AFM or to apply the GST approach.
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DHS Office
of Inspector
General (OIG) Summary
Introduction
to L-1
Visa Category
Office of Inspector General (OIG) Report (August 09, 2013)
• U.S. Senator Charles Grassley requested the report to examine whether
there is fraud or abuse with respect to the L-1 Visa Program.
• OIG observed DHS personnel and Department of State consular officials
process L-1 petitions and visas differently.
• OIG interviewed 71 managers and staff in Department of Homeland Security
and Department of State.
• OIG made 10 recommendations to improve the integrity of the L-1 visa
program.
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Seven OIGtoRecommendation
to the USCIS:
Introduction
L-1 Visa Category
The report made seven recommendations to the U.S. Citizenship and
Immigration Services (USCIS), which included the following:
1. Publish new guidance with respect to the interpretation of the term “specialized
knowledge.”
2. Screen L-1 beneficiaries against a list of persons previously denied visas by
DOS consular officers.
3. Increase coordination with USCIS and U.S. Department of State (DOS) with
respect to the adjudication of L-1 petitions and visa applications.
4. Make site visits a requirement before extending 1-year new office petitions.
5. Grant CBP access to VIBE to assist in L-1 petition processing and promote
program integrity.
6. Create a regulation on the Visa Reform Act anti-“job-shop” provisions that will
increase consistency in decision making.
7. Update existing guidance on the Visa Reform Act anti-“job-shop” provisions that
Immigration Service Officers can use in the interim while a regulation is created.
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Three OIGtorecommendation
Introduction
L-1 Visa Category to the CBP:
The report made three recommendations to the U.S. Customs and Border
Protections which included the following:
1. To provide through training to all CBPO processing L-1 travelers at POE.
Training should include:
a) Determining petitioner’s eligibility;
b) L-1 fraud detection;
c) Correct assessment of fees;
d) Specialized knowledge’ and
e) Provisions of the visa reform act.
2. To establish a guideline for fraud fee collection for CBPO processing L-1
travelers.
3. Request USCIS to provide CBPO access to VIBE to assist in L-1 petition
processing.
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OIG
Reporttoand
Specialized
Introduction
L-1 Visa
Category Knowledge
Currently Immigration Services Officer (ISO) describe specialized
knowledge as:
“unquantifiable”
“open to
interpretation
unfortunately”
“subjective”
ISO
Concerns
“the only
place
where I
struggle”
“very difficult
to adjudicate”
“constantly
changing”
“extremely risky”
ISO general principle for adjudicating specialized knowledge petitions is
“you know it when you see it”
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OIG
Reporttoand
Specialized
Introduction
L-1 Visa
Category Knowledge
Specialized Knowledge:
• Term “specialized knowledge” is not uniformly applied by USCIS officers
when adjudicating petitions.
• Lack of uniformity is caused by lack of guidance of the term “specialized
knowledge.”
• Does not cite the guidance currently within the USCIS Adjudicators Field
Manual.
• Favors the USCIS Administrative Appeals Office (AAO)’s interpretation of the
legislative intent of the original 1970 legislation which benefits only a small
number of beneficiaries.
• OIG report recommends new guidance be published by the USCIS to clarify
the definition of the term “specialized knowledge.”
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Confusion
ofL-1
USCIS
Adjudicators:
Introduction to
Visa Category
v
USCIS
Guidance:
(Binding
Authority)
USCIS
Ombudsman
Report
USCIS
Officers
AAO
Guidance
(Non-binding
Authority)
DHS:
Office of
Inspector
General
(OIG)
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Introduction to Trends:
L-1 Visa Category
Adjudication
Increased Scrutiny of L-1 Visas
• Evidence of the increased scrutiny of L-1 visas is emphasized by L-1
adjudication trends.
• In recent years, employers have experienced much higher rates of
denials for L-1 petitions.
• In a large number of cases, the government has requested additional
evidence about whether the employee meets L-1 qualification
standards.
• These requests too frequently ask for substantial information that was
previously submitted or that is only remotely relevant to the application.
• These requests significantly delay the transfer of key employees into
the United States.
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2014 Ombudsman Report
• There are ongoing issues with the application of the preponderance
of the evidence legal standard and unduly burdensome Requests
for Evidence.
• For the First Half of Fiscal Year 2014, data reveal an RFE rate of
nearly 50% for L-1B Petitions and nearly 43% for L-1A Petitions.
• USCIS policy guidance for the L-1B Program remains pending.
• This August, AILA requested examples of L-1A RFE’s and Denials.
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Introduction
RFE
Trendsto L-1 Visa Category
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Introduction
to L-1
Category
Top
Reasons
for Visa
RFEs
(for Foreign National)
RFE Reasons
FLG Recommendations
• Has special knowledge but is not using
it in position
• Include description of how the special knowledge is used with each duty and
percentage of time spent performing the duty.
• Job duties are not consistent with
O*NET job duties
• Indicate with each job duty how the special knowledge is relative to perform that
duty; include percentage of time for each job duty.
• Does not have any training certificates,
training materials and/or was not trained
prior to joining the Petitioning employers
company
• Provide a training program with training certificates and materials (formalize
training program within company.)
• Obtain letters from former customers that may be able to attest to the special
knowledge used in the past by the Foreign National overseas
• Does not have any supporting
documents that confirm possession of
specialized knowledge
• Provide letter describing what Foreign National developed with respect to the
technology/product.
• Special knowledge is not unique and is
common in the industry.
• Provide examples of employers awards or the Foreign National’s certificates of
recognition within the company.
• Evidence of employers awards within the industry, particularly for their product or
service, help to show that Foreign National has special knowledge of company
product.
• Uses special knowledge immediately
after being hired.
• Sponsor Foreign National’s who have been with the company for a long time,
and/or acquired the special knowledge several years after joining the company
and have used it for several years before applying for the L-1B category.
• Does not possess a four year degree.
(some consulates require it)
• Cases in which the Foreign National has a four year single source BS degree
have a better chance of success.
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Introduction
to L-1
Category
Top
Reasons
for Visa
RFEs
(for Petitioning Employer)
RFE Reasons
FLG Recommendations
• Fails to provide the number of
people that have special knowledge
at work location or in the company
• Foreign National that develops the technology that qualifies for special
knowledge or worked on the development team can increase the success
of their petition.
• Does not have a developed product
that the Foreign National specializes
in. Developing a product for a
customer is not given any weight or
consideration
• If the petitioner has a product that Foreign National has special knowledge
of, this will increase the success of their petition.
• Has employed the Foreign National
for a short period of time and
Foreign National is not a key
employee or possesses special
knowledge
• Cases in which the Foreign National has worked for the company for a
long period of time, holds a high level position and commanded a high
salary or will in the U.S. have a better chance of success.
• A third-party product that is created
by sponsoring employer will not
suffice
• If the development of the technology was done jointly between the
sponsoring employer and the customer this will increase the success of the
case.
• Letters from the end customer stating the technology was jointly developed
will help establish that the special knowledge relates to the sponsoring
employer.
• Letter providing a description of what the employee developed with respect
to the technology/product may help.
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Introduction
to L-1for
VisaL-1As
Category
Trends
in RFE’s
Trends in RFEs for L1As
• USCIS focuses on whether prior or proposed employment meets
the definition of managerial capacity
• USCIS focusing on how long alien has been employed with the
employer
• USCIS reviews personnel above and below the alien in the
proposed position and the position abroad
• Qualifying relationship of the employer (Issue for smaller
companies)
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Denial Trends
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Denial Trends
L-1 Denial Rates: FY 2003 to FY 2011
Fiscal Year
2003
2004
2005
2006
2007
L-1A Denial Rates
12%
13%
11%
9%
8%
L-IB Denial Rates
9%
10%
6%
6%
7%
2008
9%
22%
2009
15%
26%
2010
2011
13%
14%
22%
27%
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FDNS Site Visits
• USCIS announced their Fraud Detection and National Security
(FDNS) unit will soon begin conducting randomly-selected
compliance visits for Extension of Status petitions filed with USCIS
for L-1A managers and executives.
• FDNS plans to expand the site visit program to other L-1 petitions in
the future, but the date of implementation is uncertain.
• L-1 Petitions will be selected at random for the unannounced site
visit at the worksite address listed on the petition.
• Federal Immigration Officers will conduct the visits.
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3290 West Big Beaver Road, Suite 510, Troy, MI 48084
Phone: 248-643-4900 Fax: 248-643-4907
rami@employmentimmigration.com
www.employmentimmigration.com
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