Want to bring a manager or executive from overseas to the U.S.?  Want to train international staff on various processes here in the U.S.? 

What used to be a nonissue is today a major headache for most employers.  The L-1 visa was originally established by Congress in 1970 to permit multinational companies to transfer executives, managers and specialized knowledge employees to the U.S. The L-1 was a standard tool for managing a global workforce. Today the U.S. is becoming “fortress U.S.” –a much more difficult place for global organizations to operate.

The L-1 visa became a target of politicians during the Great Recession of 2008 when accompanying job losses occurred. Critics of the L-1 convinced them it was a means to avoid the quota and wage requirements of the H-1B, to bring in cheap labor (especially in the tech industry), and to offshore work to India and other lower-wage locations. U.S. tech workers in particular claimed they were being displaced by L-1 workers.  Congress and other government agencies reviewed the situation, resulting in an increasingly restrictive interpretation of the L-1 by U.S. Citizenship and Immigration Services (USCIS), the State Department (DOS), and the federal courts. It is even more of a target today.

Although the Immigration Act of 1990 liberalized the definitions of a “manager” and “specialized knowledge,” today it is doubtful Congress will be inclined to overcome the restrictive interpretations by the various agencies.  For example:

• The Department of Homeland Security’s Office of Inspector General (OIG) has issued a new report on the “Implementation of L-1 Regulations.” Produced at the request of Senator Chuck Grassley (R-IA), the report endorses the restrictive interpretation of L-1B “specialized knowledge.” Among its recommendations, the report urged (1) closer review of petitions filed by companies just establishing a U.S. presence (“new office”) and petitions involving placement of L-1 specialized knowledge workers at client sites under the L-1 Visa Reform Act, and (2) advises USCIS and DOS to share information on consular L-1 denials, even though the standards of proof differ in USCIS and DOS adjudications.
   
• The OIG’s recommendations are that: (1) USCIS should screen L-1 beneficiaries against a list of persons previously denied visas by DOS consular officers; (2) USCIS should develop broader opportunities for communication between USCIS officers who review L-1 petitions and consular officers who review L-1 visa applications; and (3) CBP should provide more thorough L-1 visa training to all CBP officers who process L-1 travelers at ports of entry or preclearance/preflight inspection stations in Canada
   
• Consular officers, especially those at the US consuls in India, have become increasingly restrictive in their interpretation of the L category. The evidentiary standard they apply for an L-1 petition is “clearly approvable,” whereas the USCIS standard is “preponderance of the evidence.”  Fewer L-1s in India are being issued.
   
• A recent USCIS memorandum entitled “Interim Policy Memorandum: PM-602-0086 Precedent and Non-Precedent Decisions of the Administrative Appeals Office (AAO)” regarding the L-1 category has adopted the AAO decision in GST Services which ignored Congressional intent in liberalizing the L-B specialized knowledge definition. And federal court decisions, such as that in  Fogo De Chao Churrascaria, LLC v. Department of Homeland Security, also have adopted the restrictive reasoning of the GST Services case even though these decisions appear to contradict Congressional intent.
   
• Provisions in the Senate-passed S.744 comprehensive immigration reform bill, includes significant restrictions, oversight and penalties applicable to the L category.

As a result of all these developments, global employers with U.S. operations must consider the following:

• Petitions will need to contemplate the pattern of information and documents being requested by USCIS in its requests for evidence. While these are at times extraordinary and burdensome, addressing them in the initial filing, reviewing the Congressional intent and original INS interpretation and emphasizing the “preponderance of the evidence” standard may tip a more difficult case to approval.
   
• For blanket L-1 filings to be presented by employees to U.S. consuls, employers should focus on interview preparation. The employee should be able to clearly and quickly articulate his or her experience with the foreign entity, the nature of the position she or he will be assuming in the U.S. the location of the work, and his or her qualifications. Interviews are generally 5-10 minutes long, and the consular officer has to determine whether or not the application is “clearly approvable.”
   
• Where a project (e.g., a product launch) involves several transferees, it is important to be consistent in communicating the overall scope of the project to USCIS. Strategize appropriately; otherwise some transferees may be allowed into the U.S. and some may not, which can disrupt the timing of the project.

In a real and global business environment, these stricter interpretations likely have employers going to other countries to conduct business.  It will have a major economic impact on the U.S.  Employers should turn to their Congressional representatives, chambers of commerce and industry associations to express their concerns about how the direction of the L category impacts their business needs and renders the U.S. a less attractive location for business for multinational companies.

Scott Cooper, Esq., is the Managing Partner of the Detroit Office of Fragomen, Del Rey, Bernsen & Loewy, PLLC