L-1B Intra-Company Visas and Multinational

L-1B Intra-Company Visas and
Multinational Workforce:
Latest Challenges and Trends
Sponsored by:
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Today’s Presenters
Lynden Melmed
Liane Cooney
Stephanie Wolf
Partner
Berry Appleman & Leiden LLP
Partner
Berry Appleman & Leiden LLP
Associate
Berry Appleman & Leiden LLP
© 2011 Worldwide ERC®
Topic
U.S. Intra-Company Transfers:
Trends and Challenges for Global
Companies
Presented by
BAL Corporate Immigration
© 2011 Worldwide ERC®
Discussion Points
• L-1B adjudication trends in India and why they
matter
• Latest government developments and what they
mean for you
• Practical advice to improve your L-1B filings
• Status of advocacy efforts in Washington D.C.
© 2011 Worldwide ERC®
Topic
U.S. Intra-Company Transfers:
Trends and Challenges for Global
Companies
Presented by
BAL Corporate Immigration
© 2011 Worldwide ERC®
Global Dynamics
• Multiple countries, including the U.S.,
wrestle with intra-company transfer
policies
• Countries seek to balance the need of
companies to manage their global
workforce against domestic worker
protections
© 2011 Worldwide ERC®
L-1B Background
• Requirements:
• Employee worked for employer abroad for 1 out of 3
years prior to transfer
• Moving to U.S. to work for parent, branch, affiliate or
subsidiary
• Third-party Placement:
• Cannot be “principally controlled or supervised” by
client
• No wage requirement/U.S. worker protections
© 2011 Worldwide ERC®
2012 Forecast
• H-1B (Specialty Occupation) and L-1 (Intra-Company
Transfer) are most commonly used
• H-1B cap (85,000) reached on November 22, 2011
• Historically, L-1B adjudications tighten after reaching H-1B cap
• B-1 visas are under great scrutiny at posts and ports
of entry
• 2012 Forecast: difficulty transferring professional
workers into the U.S. next year
© 2011 Worldwide ERC®
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DHS/USCIS Trends
• Agency does not release approval/denial
rates
• Industry benchmarking: many companies
experiencing 30-40% denial rates (often
higher for IT consulting companies with
Indian employees)
© 2011 Worldwide ERC®
Evolving Grounds of Denial
• No policy guidance, so no roadmap for employers or
adjudicators
•
•
•
•
•
Lack of proprietary knowledge
Employee experience and training not sufficient
Too many similar employees at company so not a key employee
Employee did not design/develop tool
Can train U.S. workers/no business disruption
• Blanket L Visas – denied on basis that they are “not
clearly approvable”
• Result: uncertainty, frustration and increased costs
© 2011 Worldwide ERC®
Current Law
Statute:
Special knowledge of the company product and its application in
international markets or … an advanced level of knowledge of
processes and procedures of the company.
Regulation:
Specialized knowledge means 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.
© 2011 Worldwide ERC®
Historical Trend: L-1B Policies
Tied to Unemployment Rate
2008/2009 - GST
Decision
1980s - Colley,
Penner, Sandoz,
Regulations
2012 ???
2004 - Visa Reform
Act
1990 - IMMACT
1970 - L-1
Created
1994 PULEO
© 2011 Worldwide ERC®15
Recent Developments
•
“Entrepreneur in Residence”:
– October 11 – at President’s Council on Jobs and
Competitiveness
•
L-1B Adjudicator Training:
– October 12 – “conducted specialized training”
•
L-1B Bundling:
– October 20 – petitioners can package similar L-1s
•
Centralization of Blanket Ls in Chennai:
– November 1 – response to IG Report
© 2011 Worldwide ERC®
Practical Advice
• Document how company’s processes and
procedures are “different from that generally found
in industry”
• How is company (or industry) knowledge different?
• Are there proprietary systems or processes? How are
they documented?
• How is training and knowledge offshore unique?
© 2011 Worldwide ERC®
Practical Advice Cont’d
• Establish “significant interruption of business”
• Without beneficiary’s services, petitioner’s ability to
sell/do business would be “severely hindered”
• Evidence
• Unique skillset(s) of L-1B transferee
• Inability to hire and train another person
• Project deadlines or roll-out schedule?
• Internal standards
• Years of experience with company/on project?
• Educational level/skillsets?
© 2011 Worldwide ERC®
Practical Advice Cont’d
• Navigating the Department of State Consular
Interview/Visa Stamping in India
• Preparing employees for interview (training for
managers and employees)
• Dealing with language barriers
• Clarity in explaining petitioner/client relationship
• Familiarity with technical role and ability to explain
beyond what is in the petition
© 2011 Worldwide ERC®
Practical Advice Cont’d
•
Moving beyond templates - increased level of detail
– Uncommon, unusual, advanced and noteworthy compared to others at the
company and in the industry
– Why others have not acquired the same specialized knowledge
– Specific knowledge required to perform each job duty
– Documentation to prove training and specialized knowledge
– Significant, unique assignments
•
Selection criteria for “key personnel”
–
–
–
–
Years of experience with company and on project
Unique experience such as design and development
Hierarchy/senior level positions
Salary (relevant even though there is no prevailing wage requirement)
© 2011 Worldwide ERC®
Status of DC Advocacy Efforts
• Associations and interest groups – focused on percountry limits and STEM, but turning attention to L-1B
issues
• Winning the storyline: simplify and escalate
• What are the true economic costs of a restrictive L-1B
Policy?
• Litigation: challenging the agency’s interpretations
© 2011 Worldwide ERC®
Contact Information
Liane Cooney
Partner
Berry Appleman & Leiden LLP
[email protected]
703.226.2824
Lynden Melmed
Partner
Berry Appleman & Leiden LLP
[email protected]
202.682.6127
Stephanie Wolf
Associate
Berry Appleman & Leiden LLP
[email protected]
415.617.4566
© 2011 Worldwide ERC®
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