U.S. Citizenship and Immigration Services (USCIS) announced earlier this year that it will be giving increased scrutiny to companies that employ workers with L-1 nonimmigrant visas. These visas are available to certain employees of international companies, allowing them to transfer within the company from an office abroad to one in the United States. The Office of the Inspector General (OIG) for the Department of Homeland Security (DHS) released a report in 2013 expressing concern about the ability of USCIS to enforce the L-1 visa program’s requirements on a consistent basis. As a result, USCIS is stepping up investigations and enforcement of L-1 visas, including plans for unannounced site visits to employers of L-1 visa holders.
The L-1 visa is available to executives, managers, and certain other employees of companies that have offices in the United States and in foreign countries. An employer petitioning for an L-1 visa must show a qualifying relationship with a foreign company, such as common ownership by a parent company. Employees must have worked for the company abroad for at least a twelve-month period during the previous three years, and must be seeking to come to the U.S. in order to serve in an executive or managerial capacity for the employer. The employee may also qualify for an L-1 visa if they possess “specialized knowledge.” 8 U.S.C. § 1101(a)(15)(L).
USCIS informally defines “executive capacity” as having the “ability to make decisions of wide latitude without much oversight.” Federal immigration law defines “managerial capacity” broadly, including management of a subdivision of the employer’s organization, supervisory authority over certain operations or personnel, and discretion over regular activities or functions of the organization. 8 U.S.C. § 1101(a)(44)(A)-(B), 8 C.F.R. § 214.2(l)(1)(ii)(B)-(C). “Specialized knowledge” refers to knowledge of various aspects of the organization, such as its product or services, or its position in international markets. 8 C.F.R. § 214.2(l)(1)(ii)(D).
In a report (PDF file) issued on August 9, 2013, the OIG found that USCIS lacked sufficient guidelines regarding the definition of “specialized knowledge.” The report offered guidelines for improving consistency in the L-1 visa program, including improved compliance with the L-1 Visa Reform Act of 2004’s prohibitions on “job shopping.” This law generally prohibits employers from stationing L-1 “specialized knowledge” employees at an unaffiliated worksite, if the employee is basically “labor for hire for the unaffiliated employer.” 8 U.S.C. § 1184(c)(2)(F).
The Fraud Detection and National Security Directorate (FDNS) of USCIS will be performing the additional investigations of L-1 visa holders and employers. The FDNS created the Administrative Site Visit and Verification Program (ASVVP) in 2009 as a means of conducting unannounced site inspections. Inspections typically involve review of documents relating the employer and the visa holder, as well as confirmation of the employee’ work location.
Immigration attorney Samuel C. Berger helps obtain visas for immigrants and prospective immigrants who want to move to the New York and New Jersey areas, or who have this area their home. Applications for immigrant visas and other benefits require careful planning and knowledge of the complex federal immigration laws. To schedule a confidential consultation, contact us today online or at (212) 380-8117.
More Blog Posts:
Cap on H-1B Temporary Worker Visa Petitions Reached in Less than a Week, New York & New Jersey Immigration Lawyer Blog, May 14, 2014
Justice Department Warns Employers About Investigating Employment Eligibility Documents, New York & New Jersey Immigration Lawyer Blog, April 16, 2014
Immigration News for New Jersey Employment-Based Immigrant Visa and Temporary Worker Visa Petitioners, New York & New Jersey Immigration Lawyer Blog, February 5, 2014
Photo credit: By Gulbenk (Own work) [CC-BY-SA-3.0], via Wikimedia Commons.