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Extra Hurdles Added to L-1B Visa Process

Written By The Shapiro Law Group on March 26, 2012

Now more than ever large-scale American companies need the support of global talent in order to compete in an international marketplace. But, as noted by the American Immigration Lawyers Association (AILA) our domestic agencies responsible for immigration still sometimes function in a way that restricts American companies by denying applications for L-1B visa transfers on hyper-technical grounds.

The L-1B visa allows foreign employees of domestic companies with global operations to transfer to the U.S. when they have specialized knowledge that is needed here, pursuant to the terms of the Immigration and Nationality Act of 1970 (the 1970 INA) and the Immigration Act of 1990 (IMMACT).

However, the U.S. Citizenship and Immigration Services, the former Immigration and Naturalization Service (now known as Legacy INS) and the Administrative Appeals Office (the AAO) which hears appeals on visa determinations, have all found ways to narrow the openings for L-1B visa transfers authorized by Congress.

Over time, these authorities have narrowed the definition of specialized knowledge despite the intent of Congress expressed in IMMACT and the growing needs of domestically based global companies. For example, the AAO still relies on legislative history from the 1970 INA and court decisions interpreting that law to support its conclusion that specialized knowledge employees must be key to the petitioners enterprise, sometimes adding that such key employees must be part of an elevated class of workers.

In fact, the House Committee Report for IMMACT explicitly stated that specialized knowledge need not relate to a variety of extraneous tests bureaucratically added by immigration authorities. The Congressional Record is also full of statements about the value of the L-1B visa to multi-national corporations, and the exacerbated problems created by varying interpretations of specialized knowledge by the Legacy INS.

Until this problem is rectified, it will still be more difficult than necessary for an employer-petitioner to obtain L-1B visas, and an especially good advocate will often be necessary to obtain those visas. If you are an employer or agent of an employer responsible for intra-company, inter-country transfers or compliance with immigration rules generally, please do not hesitate to contact our office for assistance at (847) 564-0712. You are also welcome to visit the pertinent section of our immigration law Website for additional information about our services.