As noted by the American Immigration Lawyers Association (AILA) there has been a widening gulf between the articulations of policy – in statutes and regulations – and the reasoning of administrative decisions by the U.S. Citizenship and Immigration Services (the USCIS) regarding L-1B visas.
AILA has taken note of a concerted effort… within USCIS and the State Department to restrict the number of L-1B visas by narrowly applying key terms that appear in statutory, regulatory and [other] policy materials.
This trend is of particular importance to global companies with operations in the U.S. because the L-1B visa allows foreign employees of those companies to be transferred to the U.S. when they have specialized knowledge that is needed here. Congress originally created the L-1B classification in the Immigration and Nationality Act of 1970 (the INA) to eliminate problems faced by American companies with global operations that frequently benefit from transferring employees as necessary.
The continued narrowing of the L-1B visa entry process since that time has been accomplished largely through unpublished, non-binding decisions by the Administrative Appeals Office (the AAO) which rely on definitions of key statutory and regulatory terms that are at odds with Congressional intent.
One of the unnecessary obstacles placed in the path of L-1B visa petitioners is the AAOs insistent requirement that a specialized knowledge intra-company transferee must have experience well beyond the statutory minimum of one year.
The AAO has held that specialized knowledge requires more than a short period of experience, such as two or three years. But when the 2004 immigration reforms were introduced in 2003, Sen. Saxby Chambliss, co-sponsor of the reforms, said that one year is a reasonable amount of time to require an employee to have attained the specialized knowledge of the companys products, services or processes to qualify for the visa.
The still persistent practice of narrowing the entryway for L-1B applicants demonstrates the need for stricter Congressional oversight, as well as the practical need for experienced counsel when filing a petition for L-1B transfer 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 Website for additional information about our services.