U.S. Firms Face Increasing Difficulty Obtaining L Visas For Foreign Employees


USCIS bldgOver two and a half years ago I wrote that the U.S. Citizenship & Immigration Service was restricting their issuance of L visas. This problem continues.

According to one immigration attorney, the L-1B denial rate has increased from 27% in FY2011 to 34% in FY2013. See also US L-1B visa refusal rates increase, March 31, 2104, on WorkPermit.com.

L visas permit managers and employees with specialized knowledge who work for foreign affiliates of U.S. companies to come to the United States to work for the U.S. branches of their firms. L visas help American businesses operate seamlessly around the world, moving talent where the company determines it makes most sense for their managers and key employees to work.

When a company is willing to bear the expense of applying for an L visa for an employee, it is likely that it makes economic sense to the firm to transfer the employee, rather than to find and train an American worker for the job. In my own experience, corporations move their key employees to bring needed knowledge and skills to the U.S. or to further the careers of these critical workers. They don’t go to the trouble of transferring an employee on a whim.

As one immigration attorney told me,

“My client has spent a lot of money on trying to get this employee to work in the U.S. That alone should tell USCIS he’s got specialized knowledge.”

Yet this attorney and others complain of continuing problems getting the U.S. Citizenship and Immigration Services (USCIS) to approve applications for L visas. In an increasing percentage of cases, USCIS is sending out Requests for Evidence (RFEs), which prolong and complicate the visa application process.

There are two types of L visas. The L-1A visa covers managers of a department or function, and the L-1B visa covers workers with specialized knowledge.

Although it should be relatively easy to determine when an employee manages a department or function, USCIS is more frequently demanding specific information on how the person for whom the visa is requested will set policy for the organization or function and what discretionary authority he or she will have. See 8 CFR 214.2(l)(1)(ii)(B) & (C).

Sometimes managerial status is easy to define, but often corporate decision-making is layered in ways that even fairly high-level managers do not have complete discretion to act alone. This does not mean that the manager is not managing an important function or department. Often, complicated approval structures are needed to be sure that businesses comply with employment and other regulatory requirements. Corporations should be given leeway to structure their management teams in ways they think best suit their business and compliance issues.

Similarly, it is often difficult for the company to define specialized knowledge in ways that satisfy USCIS. The regulation defining the level of knowledge required states that it must be:

“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. (8 CFR 214.2(l)(1)(ii)(D))

This requirement often proves a sticking point in the L visa application process. Oracle reported that one of its foreign employees was denied an L-1B visa because USCIS didn’t think he had specialized knowledge, even though the employee had written the manual explaining the software in question. http://www.workpermit.com/news/2014-03-31/us-l-1b-visa-refusal-rates-increase

clipart border agentI argued when I wrote about L visas two years ago that

“Businesses should have substantial leeway to bring in foreign employees with knowledge of their business.  Employers know better than USCIS which of their foreign employees are needed here in the U.S.  They should have the flexibility to move workers between their affiliates.

“We ought not penalize employers that are spending the time and money to bring their workers here legally, while ignoring other aspects of current immigration law.”

That is still my position. Firms should be encouraged to bring work to the U.S., and to do so, they need to be able to decide which employees they most need to manage and operate their facilities in this country.

When have you had difficulty with immigration issues?

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Dealing With Your Nemesis


conflict-405744_640I recently was visiting the town where I grew up and encountered someone I’d gone to school with. We were classmates all through elementary and high school, and I always considered her my nemesis.

I got better grades than she did, but not by much. And she was popular, athletic, and a cheerleader from junior high on. Our parents were friends, too, so we sometimes took summer vacations together.

When I saw her recently, I realized how much our lives had diverged since high school graduation. From the perspective of four decades later, I could be glad my life turned out the way it did. I wouldn’t have wanted to face some of the challenges she did. But I sincerely hoped that she was as happy with her life as I was with mine.

Time had made our differences far less important than they seemed in high school.

Then I got to thinking about all the nemeses I’ve had at work. Here were some:

  • The attorney who was slightly more senior than me who grabbed the best assignments and only passed on the grunt work she didn’t want.
  • The HR director who monopolized our mutual boss’s time.
  • The division VP who wouldn’t provide the feedback on incentive plans that the CEO had ordered me to get.

How should we deal with difficult people in the workplace, the ones who seem to be trying deliberately to make our lives a challenge? Here are a few ideas:

1. Talk to the individual. Maybe the person doesn’t know the impact of his or her actions on you. Or maybe there’s some problem that individual has that you didn’t know about. Even if their actions are deliberate, or they don’t care, at least you’ve put them on notice that you’re aware of their behavior.

2. Get support from your manager, mentor, or others. Find out if others have had the same experience. Again, there may be information or history on the situation that you don’t know. What have others done about the problem? Is there a way for you to complain together to obtain relief?

3. Document your issues. When you talk to your nemesis, make sure to put a note in your files. Better yet, send a follow-up email—in a polite tone, or even a friendly tone, if you can manage it—setting out the problem and any agreed changes. A thank-you for any commitments to change wouldn’t hurt.

4. Suck it up. Sometimes a problem isn’t worth confronting. Or sometimes the advice you get from others is not to do anything. You will then have to decide whether you can continue working with that person or not. Whether you decide to stay or leave, at least you haven’t burned any bridges with that individual or others.

Conflict is an unavoidable part of working with other people, so we will all face it at some time. How we choose to deal with conflict determines whether the problem gets better or worse.

Who were (are) your workplace nemeses, and how have you dealt with them?

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Favorite Firing: Employee Terminated for Peeing in a Cup


Human Resources managers find themselves dealing with the oddest situations. Some of them are quite gross. This Favorite Firing involves a guy who was terminated for peeing in a cup. When I first heard about the case, I assumed it was related to urine testing for drug use. But this case had nothing to do with drug testing—this was an employee who peed in a breakroom.

sterile-urine-cupFacts: The case of Johnson v. American Signature, Inc., Case No. 11 C 6467 (N.D. Ill. March 26, 2014), dealt with an employee who claimed he had “urinary urgency” and couldn’t get to a bathroom at work in time to relieve himself. So he urinated in front of a coworker in a breakroom in the workplace. He placed the cup on the breakroom counter, then moved it under the sink in the breakroom, and later disposed of it in the restroom.

After he was fired (surprise!) for this unseemly and unsanitary behavior, he filed a claim for disability discrimination under the Americans with Disabilities Act, claiming that his “urinary urgency” was a disability. The employer, a furniture retailer, claimed to know that plaintiff Johnson had mobility problems, but said it knew nothing about his “urinary urgency.”

The employer said that after its investigation, Mr. Johnson was terminated for violating the employer’s policy against “personal conduct which substantially impairs the associate’s ability by reason of its detrimental effect either on the associate’s relationship with other associates or the business or reputation of the company.”

This policy is vague enough to cover just about anything, but urinating in a common area in the workplace would have a detrimental effect on anyone’s relationship with coworkers.

The District Court that considered the case found that even if Mr. Johnson’s urinary problems were a disability, the employer had not known about it. Although Mr. Johnson claimed that the furniture company should have accommodated his disability, the Court found that the employer couldn’t accommodate what it didn’t know about. Moreover, Mr. Johnson had not tried to ameliorate his problem prior to the events leading to his termination, even though he had been aware of his urinary problems. He made suggestions only after his workplace “accident.”

As a result, the Court found that the employer could not have discriminated against Mr. Johnson and granted summary judgment in favor of the employer.

Moral: The moral of this story is that anything can happen in the workplace. And anything that can happen usually does.

Beyond that, the moral is that employers should engage in an interactive dialogues with employees when they learn of any employee disability or potential disability. They should also investigate after a workplace problem that might be related to a disability.

But employers are allowed to use common sense. And when an employee behaves inappropriately in the workplace without previously informing the employer about a disability, disciplinary action is warranted, including termination.

For more on this case, see the Court’s opinion here. And thanks to the Employer Handbook blog for reporting this case.

When has your employer had to deal with an unsanitary condition in the workplace?

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Leadership 101: An Oldie, But Goodie


ereIn 1999, when I began managed a staffing department, I started following ERE.net. ERE.net was created in 1998 as an online gathering place for recruiters to network and share best practices. I quit following ERE.net when I quit handling our company’s staffing function, but in recent years I’ve been following its sister site, TLNT.com, which provides human resource professionals with news and analysis across the whole HR profession.

tlntI hadn’t thought much about ERE.net for several years. But I recently came across a 2002 article from their newsletter I had saved. The article was titled Leadership 101: Beware of Bosses Bearing Platitudes, by Ken Gaffey, published on February 19, 2002. Amazingly, I was able to find the link to this article. Nothing ever dies on the Internet.

Mr. Gaffey’s wisdom is as true today as it was in 2002. He describes twelve traits that leaders must have:

  1. Integrity
  2. Fairness and impartiality
  3. Loyalty to organization over self
  4. Consistency—no moodiness
  5. Setting a strong example
  6. No whining or gossip
  7. No favorites
  8. Knowledge and intelligence
  9. Resolutely following the course
  10. Empathy
  11. Volunteering—rising to the occasion
  12. Courage

I might quibble with the wording and order of these leadership traits, but they are all important. Empathy would be higher on my list. “No favorites” says the same thing to me as “Fairness and impartiality.”

The point of Mr. Gaffey’s title about “platitudes” is that leaders must lead through their actions, not their words. We have all suffered through bosses who did not lead by example in one or more of these traits.

I suggest you read Mr. Gaffey’s full article, then think about how you and other leaders in your organization act.

How do you measure up as a leader, using these traits as a guidepost?

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Discounted Ebooks: A Review of Promotional Sites


Last month I described my marketing campaign for my novel, Playing the Game, and the ebook marketers I used. This post looks at ebook marketers from a reader’s point of view.

I follow several curators of free and discounted ebooks. Some are better than others, and which are best depends on what you as a reader want. My criteria for a good ebook discount site are

  • The price is easy to see.
  • I can limit the categories of books to only those I want to read (thriller, women’s fiction, etc.), and the category of each book is clearly shown. (Often, readers can guess the genre by the cover or title, but I want to be told, so I don’t waste my time on books that don’t interest me.)
  • I can see a short synopsis of the book.
  • The site has a pleasing visual interface.
  • I can see how other readers have rated the book.
  • There are links to all the buy sites where the ebook is available (Amazon, Barnes & Noble, Kobo, Apple, etc.), which is important to me because I use both a Nook and the Kindle app to read ebooks.
  • The site shows lots of free and discounted books in the genres I want.

Given these criteria, the best sites I follow are Ereader News Today and The Fussy Librarian.

Here, in alphabetical order, are my opinions on several sites that curate discounted and free ebooks. My comments relate to the daily emails that these sites send out, since these emails are the first impression that readers get on the ebooks featured by these promoters. Some of the sites also have Facebook pages and other ways of linking to the books they feature, but I prefer one email a day from each marketer, not constant posts throughout the day on Facebook or Twitter or other advertising.

Your preferences may be different than mine, so judge accordingly.

Bargain Booksy: This site lets readers sign up to get emails about books in Kindle, Nook, Apple, or other formats, but only one format of ebook, not all of them. The Bargain Booksy emails do not show multiple buy sites simultaneously. This site appears to only showcase discounted books, not free books, but the prices of the featured books are clear. The book categories are also shown, but it does not give ratings or a synopsis of the books it lists. I am not a fan of this visual interface, but others might like it.

BookBub:  BookBub is the granddaddy of ebook marketing sites, and claims to have more followers than any other sites. The prices they charge authors are comparably high. Readers can choose to receive emails that feature books for Kindle, for Nook, or for other formats, but readers cannot get links to all buy sites in a single email. It has a pleasingly clean visual interface, the prices are clear, the book categories are visible, and books are listed with a synopsis. However, the site does not show rating information.

BookGorilla: BookGorilla only features Kindle books. However, the price is clearly shown, the category of books visible, and the appearance is clean. BookGorilla shows brief synopses of featured books and other promotional text from the author. It does not show rating information, unless the author includes ratings in the write-up about the book.

Choosy Bookworm:  This site only features Kindle ebooks. It has a nice layout, and clearly shows a synopsis and the book prices and categories. It does not show ratings, and doesn’t promote as many ebooks as some of the other sites. My biggest complaint about Choosy Bookworm is that when you click on a book’s link in the daily email, it doesn’t take you to Amazon, but to the Choosy website, where you have to click again to get to Amazon to buy the book. The website does not give much more information than the email, so there is no reason for the website interface.

Digital Book Spot: This site features only Kindle ebooks. I don’t like the site, because there is a two-step process to get to Amazon to buy the books. First, I have to click on a link in the email to get the list of featured books. When I get to that list of books, I can see the price and a synopsis of each book, but no ratings or book categories are shown, so I have to click to the Amazon buy site to get more information about genre and ratings. Moreover, the site’s look is messy and interrupted by ads. The good news about this site is that it does promote a lot of books.

The EReader Cafe: This site only features Kindle ebooks. It has a good interface and provides a synopsis, but does not show book categories. It shows whether a book is free or a bargain, but doesn’t show the price of bargain books. It does not show book ratings. It, too, features many books each day.

Ereader News TodayThis site shows links to many buy sites, including Kindle (Amazon), Nook (Barnes & Noble), Apple, and others. The price and book category are easy to see, as are ratings and synopses of the books. I am not as fond of the appearance of this site as of Fussy Librarian and Riffle, but the information I want is all there.

The Fussy Librarian:  This site shows all buy sites where the books are available, including Amazon, Barnes & Noble, Apple and others. It has a very nice visual layout, and clearly shows the prices, categories, and ratings of featured books. From a reader’s perspective, it is one of the best sites. However, this site seems to have fewer followers than some of the others listed in this post, so it doesn’t list as many books as some of the bigger promoters.

The Midlist: This site only lists a few books each day, and only Kindle ebooks. It has a decent visual interface and clearly identifies prices and includes a synopsis. However, it does not list book categories, nor does it show ratings of featured books.

OHFB: OHFB is short for “One Hundred Free Books.” I don’t know if it features 100 books each day, but it features a lot, and it is an eclectic mix of books, including classics. OHFB only lists Kindle books, but the prices and categories are clear, the visuals pleasing, and a synopsis included. It does not show ratings. However, the daily email only describes a few books. To get to the full listing of featured books, you have to click from the email to the OHFB website, and from there to Amazon.

Riffle Riffle is another site that features links to not only Amazon, but also Barnes & Noble, Apple, and other buy sites. It has a clean interface that clearly shows prices and categories, and also gives a synopsis. It does not show ratings.

I hope readers find this information helpful. I’m sure there are many more equally good ebook sites. But I follow enough already.

Readers, which are your favorite free and discount ebook sites?

* * * * *

Check out the latest review of my novel, Playing the Game, on Amazon:

“I was intrigued and hooked after only one chapter. A novel about a corporation that makes toys would not have been my first thought as a successful venue for suspense and crime drama, but . . . the author’s unique writing style . . . delivered on the suspense, and effective character development to boot. . . . Great job. I’m glad for the read, and for meeting a new author.”

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Fresh But Not So Easy: NLRB Expands Scope of “Concerted Activity” To Individual Claims


recently described the NLRB General Counsel ruling that McDonald’s Corporation is a joint employer of its franchisees’ employees. The NLRB has now given me another hot topic, just in time for Labor Day. I’ve written previously about NLRB decisions impacting both union and non-unionized employers—this new topic is another such situation.

In Fresh & Easy Neighborhood Market, Inc., the NLRB decided that an employee who solicited statements from her coworkers about the employee’s individual complaint was engaged in “concerted activity” under Section 7 of the National Labor Relations Act (NLRA). As the Board and courts have long been established, “concerted activity” requires that two or more employees take action for their mutual aid or protection regarding the terms and conditions of their employment. The NLRA prohibits all employers, whether unionized or not, from doing anything to quell employees concerted activities. What is new in the Fresh & Easy decision is the NLRB application of this principle to a single employee’s activity in pursuit of her individual claim.

In Fresh & Easy Neighborhood Market, Inc., an employee filed a complaint of sexual harassment over a cartoon drawn on a whiteboard in the breakroom that she believed was sexual harassment directed at her. Because she had no camera, she drew a picture of the offending whiteboard, then asked her coworkers to verify that the picture was an accurate representation of what they saw in the breakroom.

During the NLRB hearing, she testified that she filed her harassment complaint for her own behalf only. Moreover, the co-workers said that they had no intent of filing complaints themselves.

For a complete description of the facts, see the Littler post by Jonathan E. Kaplan here, or read the opinion.

Nevertheless, despite the emphasis on the individual nature of her complaint, the three Democrat members of the NLRB held that the employee’s actions amounted to concerted activity “for the purpose of mutual aid and protection.” This majority of the Board found that the simple solicitation of support from fellow employees was “concerted,” even though the co-workers did not support the complainant’s claim.

Moreover, the majority held that the coworkers had an interest in helping the complainant, even if only the complainant had a stake in this case, because “next time it could be one of them that is the victim.”

Of course, this rationale applies whenever an employee complains about any employment issue, so completely abrogates the earlier limitations in case law on what constitutes “concerted activity.”

By contrast, the two Republican NLRB members dissented from this extension of the “concerted activity” principle. Each of the dissenters filed a separate opinion. Member Miscimarra criticized the majority’s opinion as having “limitless application” to workplace claims. He concluded that the Board majority expanded Section 7 coverage “for every individual employee—regarding every individual complaint implicating any individual non-NLRA right—as soon as the individual seeks the involvement of anyone else who is a statutory employee.”

Member Johnson’s dissent argued that the majority had created created an irrebuttable presumption that an employee seeking the support of coworkers is always acting for the purpose of “mutual aid or protection.” This would impose Section 7 protection any time an employee seeks assistance on an individual employment issue from a coworker, contrary to the intent of the NLRA.

The only good news in this case is that all five members of the NLRB ruled that Fresh & Easy (the employer) acted appropriately in asking the complaining employee not to solicit statements from her co-workers while it investigated her complaint, because the employer had a legitimate interest in conducting a fair and impartial investigation. None of the employees involved was disciplined for their actions.

However, the majority of the Board also stated that employers cannot issue blanket instructions not to discuss complaints, because that might chill concerted activity. So the case ended up being a soap box for the majority to expand the application of the “concerted activity” principle in a non-union context, without any liability imposed on the particular employer in question.

Thus, it remains important for non-unionized employers, as well as unionized workplaces, to consider potential NLRB action when handling employee complaints. After the Fresh & Easy decision, all employers must be careful whenever they investigate an individual complaint, including interrogating employees, conducting workplace surveillance, and email and property searches.

Moreover, as Member Miscimarra pointed out, after Fresh & Easy, employers cannot know which individual complaints may be subject to NLRA protection, because they cannot even ask employees whether their actions are “concerted.” In the Fresh & Easy case itself, the employer incurred years of litigation because it asked two questions during an investigation of a sexual harassment complaint, questions that were ultimately found to be lawful. Many more employers are likely to incur similar costs in the future due to NLRB involvement in matters already handled by the EEOC, OSHA, and a variety of other federal, state, and local agencies.

For more information on the Fresh & Easy decision, see

Fresh & Easy Neighborhood Market, Inc. (the NLRB opinion)

Employers Dealing With Harassment Retaliation Claims Now Have To Deal With the NLRB, by Christina Stoneburner (Fox Rothschild), August 13, 2014

NLRB Again Expands Its Definition of Protected Concerted Activity – One Hand Clapping May Be Concerted, by Ian Gabriel Nanos (Epstein Becker & Green), August 15, 2014

NLRB Expands Reach of NLRA by Finding Employee Who Sought Help From Coworkers For Her Sex Harassment Complaint Was Protected, Littler, by Jonathan Kaplan (Littler), August 19, 2014

NLRB Continues to Broaden its Reach Over Non-Union Employers, by McMahon Berger, August  21, 2014

What changes will your workplace make in response to the expanded NLRB definition of “concerted activity”?

 

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Situational Leadership Theory: It’s Just Common Sense


Situational Leadership Model

Situational Leadership Model

I talked last week to a friend who is about to take a leadership training program sponsored by the government entity where he works part-time. This man had had leadership training in the military, but seemed overwhelmed by the thick manual he’d been given to study before the training program. The manual had a lengthy section on “situational leadership theory.”

Although I was a manager for many years and participated in—and even taught—management training programs, I am not educated in organizational and management theory. I’d never heard of “situational leadership theory.”

So I asked my friend what it was, for two reasons. First, I wanted to know. Second, I figured he would learn the material better if he had to describe it to me than if he muddled through the manual in a vacuum.

He started talking about four quadrants and “high relationship/low relationship” and “high task/low task” situations, and how a manager should behave differently.

But of course, I thought. The best way to manage good people is to get out of their way and let them run with what they want to do. That’s all being a “low task” manager means.

The trick is to know when someone is a strong enough employee to let them run, and when they need more guidance. And the only way to do that is to build a relationship with them (be “high relationship”) and test them on little things while giving them direction (be a “high task” manager).

My friend and I worked through several examples—new employees, trusted employees, good performers, and poor performers. In each case, I asked him whether it was better to spend more time or less time in getting to know the individual, and whether it was better to be more directive or less directive in giving instructions.

He could answer the questions using just common sense. The terminology didn’t matter. He knew what to do. And so did I, despite never having heard of “situational leadership theory.”

situational_leadership3

My preferred style is S3 – Supporting

My own bias is to work on relationships in almost every situation. Most employees want their manager (and also their coworkers, peers, and even subordinate) to know them better. It takes time, but usually bears fruit.

My bias is also to be less directive with all but the newest employees. But that doesn’t always work well. I have been burned on occasion when I’ve found out that an employee took a project in a direction that I didn’t think was going to fly in the organization.

Still, I’d rather err on the side of letting employees make their own mistakes and helping them recover afterward. We’ll both learn more than if I had told them what to do every step of the way.

Management is an art, not a science. It’s judgment, not four quadrants in a grid. It’s knowing your people, not knowing what’s in some manual.

When have you found that management theories or other aspects of interpersonal relationships were really just based on common sense?

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