The L-1 visa category for intra-company transfers remains a valuable tool for multinational companies in many situations despite heightened scrutiny from the U.S. Citizenship and Immigration Service (USCIS). This increased scrutiny is a result of cries of abuse and fraud from political figures. In recent years, reports show that USCIS has delayed between 50% and 63% of L-1 cases with burdensome Requests for Additional Evidence (RFEs) and has denied 27% of these cases. Upon review of many of these RFEs and denial notices, it is evident that the USCIS is grasping at straws to find ways to deny a case, and often seems to “make stuff up” when out of straws. Yet, the L-1 visa category is still viable and valuable and here are the top ten reasons why:
1. No wage requirement: Unlike the more well-known H-1B, there is no Department of Labor requirement that the employee receive a certain wage. Rather, the employer, the employee, and the market determine the proper salary.
2. No education requirement: Further distinguishing itself from the H-1B, there is no formal education requirement for individual L-1 visa petitions filed with the USCIS. The key requirement is the nature of employment gained with the qualifying corporate entity outside the U.S and what it will be in the U.S.
3. No annual cap: The most important distinction from the H-1B is that there is no annual limit on the number of L-1 visa petitions filed and approved with the USCIS. Employers can file L-1 visa petitions at any time.
4. Timing, timing, timing: USCIS Service Centers are reporting only one month processing times for L-1 visa petitions filed with standard processing. Filing with a request for Premium Processing guarantees a response within 15 calendar days.
5. It IS the proper classification: The L-1 visa category is ideal for specific employees – managers and employees with “specialized knowledge” of the employer’s business. Often this is the only visa category an employee fits under. When this is the case, employers can be confident of an approval since both the facts and the law are on their side.
6. Qualifying as a manager without managing 100 people: The USCIS regulations provide for a classification of managers known as “functional managers.” Key employees, who oversee a defined portion of the company’s business, even if they don’t oversee two levels of direct reports, can qualify.
7. Trow & Rahal has seen this before: There are two prior USCIS memos and directives that are driving the current plague of RFEs and denials. The good news is that Trow & Rahal has seen them before, and as experienced practitioners, we have learned how to handle them.
8. Erroneous denials are winning on appeal: A recent string of victorious appeals following erroneous denials confirms that the USCIS cannot simply get away with “making stuff up” to deny L-1 visa petitions.
9. If at first it doesn’t succeed, try again: If the employer’s need is too urgent to wait for the lengthy appeal process after an erroneous denial, the case may be re-filed and often under a different category (e.g. specialized knowledge instead of functional manager). While this does not guarantee a better result, it does give another USCIS officer a chance to avoid making the same mistake as the first officer.
10. An expert to turn to: Trow & Rahal has over 20 years of experience in immigration law and will develop a winning immigration strategy to get the best result possible for an employer looking to bring over employees via the L-1 visa category.
Posted by: Andy Finkle, Associate Attorney