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?


1 Comment

Filed under Human Resources, Law, Management

One response to “U.S. Firms Face Increasing Difficulty Obtaining L Visas For Foreign Employees

  1. Pingback: Impact of Obama’s Immigration Action on Employers | Sara Rickover, Behind the Corporate Veil

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