Co-Author : Michael Neifach
Many multinational companies with global operations use L-1 visas to facilitate the transfer of their executives, managers and specialized knowledge personnel into the U.S. for temporary assignments. In the last couple of years, these companies have experienced extreme backlogs, denials and inconsistent challenges by U.S. Citizenship and Immigration Service and Consular Offices.
The U.S. Chamber of Commerce recently hosted a business community discussion on L-1 legal and policy issues with Director Alejandro Mayorkas, Director of USCIS, Donald Neufeld, Associate Director for USCIS’s Service Center Operations, Robert Silvers, Senior Counselor to the Director, and David Donahue, Assistant Deputy Secretary for Visa Service.
The Chamber noted that in the last few years, L-1B visa denials and processing delays have increased by 200 to 300 percent . These denials and delays have caused tremendous loss of business opportunities for the affected companies due to the inability to timely transfer critical specialists to the U.S. Companies and practitioners know that certain consular offices are more likely than others to deny L-1 petitions. In addition, the U.S. government has begun to take a more restrictive view as to what constitutes specialized knowledge, indicating that if a significant proportion of a company’s personnel possessed specialized knowledge, then none of them could be deemed specialized.
During the Chamber meeting, representatives from multinational companies reported that extensive follow-up documentation requests from Consulates or denials of petitions outright have cause them delays of seven to eight months, or more, in bringing essential specialized knowledge employees, particularly those who possess critical technology expertise, to the U.S. In a much-welcomed statement, Director Mayorkas confirmed that the government agencies recognized the importance of providing clarity to the L-1 specialized knowledge standard and are committed to providing updated policy guidance to the public. In response to a question about denials based upon the number of specialized knowledge employees within a company and an earlier agency interpretation that if everyone is special, no one is special, Director Mayorkas confirmed that during the USCIS’s November 2011 training, field adjudicators and officers were instructed that the number of specialized knowledge employees in a company should not be a basis in determining if an L-1B specialized knowledge petition would be approvable. Director Mayorkas indicated that further guidance on this would be available soon.
Practitioners and employers who rely on intracompany transfers as an important part of overall staffing strategies welcome the USCIS’s willingness to clarify this issue. Facilitating the transfer of workers with needed specialized skills to the United States is consistent with the intent of Congress in enacting the L-1B specialized knowledge regulations and helps American businesses to operate more competitively in the global economy.