Fakhoury Law Group, PC © 2014, Fakhoury Law Group, PC October 9, 2014

Fakhoury Law Group, PC

© 2014, Fakhoury Law Group, PC

October 9, 2014

1. Introduction to Fakhoury Law Group, PC

2. History of the L-1 Category

3. Recent Adjudications and Filings

4. L-1 Qualifications and Requirements

5. Evolution of the L-1

6. Trends and Facts

7. Q&A

Agenda



About Fakhoury Law Group, PC _______________________________________________________

• Founded in 1997, global staff of over 60 attorneys, paralegals and immigration consultants.

• Premier- AV Rated Immigration law Firm.

• Leaders in providing Global Immigration Services for over 100 countries.

• Multi-national presence with offices and partners across the globe

• ISO 9001-2008 certified

Lean Processes

and Technology

Outstanding Value Proposition

Exceptional Legal

Expertise

• FLG provides its business-based clients with comprehensive global immigration services in more than 100 countries

• Our business model is built upon three main tenants:1. Exceptional legal expertise

• Numerous accolades for outstanding legal expertise and high ethics such as AV-rating from Martindale Hubbell and member of the ABIL Alliance

• Many scholarly publications on immigration matters• Outstanding approval ratings

2. Lean processes and technology• Six Sigma and ISO certified• Web-based case management tool• International office locations for around-the-clock service

3. Outstanding value proposition• Fixed fee model that facilitates corporate budgeting and encourages

efficiency

Fakhoury Law Group (FLG) Overview


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Purpose of L-1 Visa


• Congress created the L-1 Visa category in 1970 to improve the Global competitiveness of U.S. businesses by allowing companies to effectuate quick, temporary transfers of key employees into the United States.

• L-1 visas were used as an effective tool for multinational companies.

• This was reaffirmed through the Immigration Act of 1990 (IMMACT).

• In IMMACT, Congress confirmed that L-1s were valuable and must be broadened to accommodate the increasingly globalized economy.

Introduction to L-1 Visa Category


History of Legislative Acts for the L-1 Category:

Immigration Act of 1990 (IMMACT)

Provided the First Statutory Definition of Specialized Knowledge

8 Code of Federal Regulations (CFR) § 214.2 (I)(1)(ii)(D)(1987)

Amended the Regulatory Definition of Specialized Knowledge

1970 Amendments to the Immigration and Nationality Act

Established the L-1 Visa Program

L-1 Visa and H-1B Visa Reform Act of 2004

Employees with Specialized Knowledge who will be Primarily Located Offsite must be Controlled

and Supervised by the Petitioning Company.

North American Free Trade Agreement of 1994

Allowed Canadian & Mexican Nationals to Temporarily Enter the US by Applying for

Immigration Benefits at POE

8 CFR § 214.2(I)(1)(ii)(D)(1991)

Amended the Definition of Specialized Knowledge in the Immigration Act of 1970


Evolution of the L-1 Visa


• Congress has not made any definitional changes to L-1 visas since IMMACT

• 2004 Neufeld Memo and 3rd Party Placements for the L-1A Manager or Executive

• L-1 has come under intense scrutiny from federal agencies.

• DHS and DOS have considerably narrowed qualifying standards for L-1 visas.

• One big target has been the L-1B visa. The government argues it should apply to a very small number of individuals.

• DHS and DOS stated that Congress intended the L-1 visa to be narrowly drawn, although this intent is not found in the regulations or most recent legislative history of the law.



L-1 Visa Category

L-1A L-1B

For managers and executives. For personnel who have specialized knowledge of the company's product, service, procedure or other interest.

Validity: up to 7 Years Validity: up to 5 years

L-1 Qualifying Requirements for Employers and Foreign Nationals

• U.S. company must be a “qualifying organization” that does business in the U.S. and one overseas company.

• Foreign National must have worked abroad for the overseas company for a continuous period of one year within the last three years.

• The Foreign National must be coming to the U.S. to work in “managerial capacity” or “executive capacity” or “specialized knowledge capacity.”


L-1 Visa Category

Accompanying Dependents

Dependents are eligible for L2 status. Dependent Spouses in L2 status may work in the U.S. Dependent Children in L2 status may not work, but L2 status does allow for schooling in the US

Duration & Renewals

Maximum period granted cannot exceed 3 years. Extensions up to a total of 7 years for L1A; 5 years for L1B


L1As – Managerial: Definition & Trends

Definition

Chapter 8, Section 214.2(l)(1)(ii)(B) of the Code of Federal Regulations - “Managerial Capacity” means an assignment in an organization in which the employee primarily:

1. Manages the organization, or a department, subdivision, function, or component.

2. Supervises or controls work of professionals, managerial employees, etc., or supervises a function, department, or subdivision of the organization.

3. Has authority to hire or fire personnel, or recommend other personnel actions, or functions at senior level with respect to function managed.

4. Exercised discretion over the day-to-day operations of the activity or function for which the employee has authority.


L1Bs – Specialized Knowledge

Definition of Specialized Knowledge

Specialized 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 organizations processes and procedures


Blanket L Petition

Eligibility for blanket L certification may be established if:

• The petitioner and each of the qualifying organizations are engaged in commercial trade or services;

• The petitioner has an office in the United States which has been doing business for one year or more;

• The petitioner has three or more domestic and foreign branches, subsidiaries, and affiliates; and

• The petitioner along with the other qualifying organizations meet one of the following criteria:

• Have obtained at least 10 L-1 approvals during the previous 12-month period;

• Have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or

• Have a U.S. work force of at least 1,000 employees.


© 2013, Fakhoury Global ImmigrationTroy New York Miami San Francisco Mumbai

© 2013, Fakhoury Law Group, PC© 2013, Fakhoury Global ImmigrationTroy New York Miami San Francisco Mumbai





© 2013, Fakhoury Law Group, PC© 2013, Fakhoury Law Group, PC





USCIS Guidance (Binding Authority)

Puleo Memorandum (3/9/1994)

James A. Puleo, issued a memorandum providing field officers with guidance on the proper interpretation of the statutory definition of “specialized knowledge.”

Mr. Puleo states: The common theme which runs through these examples is that the knowledge which the beneficiary possesses, “whether it is knowledge of a process or a product, would be difficult to impart to another individual without significant economic inconvenience to the United States or foreign firm. The knowledge is not generally known and is of some complexity.”Source: AFM Appendix 32-1













USCIS Guidance (Binding Authority)

Mr. Puleo also sets forth characteristics (not inclusive) of specialized knowledge:

1. Foreign National possess valuable knowledge for employer’s competitiveness in the market place.

2. Foreign National is qualified to contribute to the US employers knowledge of foreign operation conditions as a result of special knowledge not generally found in the industry.

3. Foreign National worked abroad in a capacity involving significant assignments which have enhanced the employers productivity, competitiveness, image or financial position.

4. Foreign National has knowledge of a product or process which cannot be easily transferred or taught to another individual.

5. Foreign National has knowledge that can be gained only through prior experience with that employer.













Administrative Appeals Office (AAO) Guidance:

Matter of Colley (Binding) 6/19/1981

AAO takes the position that most employees today are specialist and have been trained and given specialized knowledge and not all employees who are using this knowledge and/or training are eligible for L-1B classification.

AAO concludes employee must be a “key” person who has managerial qualities.













Administrative Appeals Office (AAO) Guidance:

Matter of Penner (Binding) 3/1/1982

Reviewed the legislative intent behind the specialized knowledge category, and noted the number of admissions under the L-1 category “will not be large” and that “the class of persons eligible for such nonimmigrant visas is narrowly drawn and will be carefully regulated by the Immigration and Naturalization Service.”

Concerned that a large number of individuals would qualify for the L-1 rather than “key personnel” that Congress intended.

House Report indicated various witnesses attested that it was understood the legislation would allow “high-level people,” “experts,” “individuals” with “unique” skill, and the L-1B category would not include “lower categories” of workers or “skilled craft workers.”













Matter of GS Technical Services, Inc. (GST) (Non-binding) 07/22/2008

Routine work experience and knowledge of a company’s products do not constitute specialized knowledge.

Special knowledge may not be held widespread throughout the company, and is limited to only a few key employees within the company.

Contradicts guidance provided by James Puleo in 1994, which appears in the USCIS’ Adjudicators Field Manual.

Administrative Appeals Office (AAO) Guidance


USCIS Ombudsman’s Report (June 30th, 2010)

• GST casts doubt on the L-1B agency guidance in the AFM and in the 1994 Puleo memo;

• GST provides a higher standard for specialized knowledge than that found in the AFM;

• Despite the fact GST is a non-precedent decision, USCIS adjudicators are incorporating its logic into L-1B review process;

• Reliance on a non-precedent decisions, rather than binding AFM, undermines the rule of law and results in inconsistent adjudications;

• It is unclear whether the USCIS expects adjudicators to follow the guidance in the AFM or to apply the GST approach.












USCIS Ombudsman’s Report (June 30th, 2010)

• GST casts doubt on the L-1B agency guidance in the AFM and in the 1994 Puleo memo.

• GST provides a higher standard for specialized knowledge than that found in the AFM.

• Despite the fact GST is a non-precedent decision, USCIS adjudicators are incorporating its logic into L-1B review process.

• Reliance on a non-precedent decisions, rather than binding AFM, undermines the rule of law and results in inconsistent adjudications.

• It is unclear whether the USCIS expects adjudicators to follow the guidance in the AFM or to apply the GST approach.

USCIS Ombudsman’s Report













DHS Office of Inspector General (OIG) Summary

Office of Inspector General (OIG) Report (August 09, 2013)

• U.S. Senator Charles Grassley requested the report to examine whether there is fraud or abuse with respect to the L-1 Visa Program.

• OIG observed DHS personnel and Department of State consular officials process L-1 petitions and visas differently.

• OIG interviewed 71 managers and staff in Department of Homeland Security and Department of State.

• OIG made 10 recommendations to improve the integrity of the L-1 visa program.













Seven OIG Recommendation to the USCIS:

The report made seven recommendations to the U.S. Citizenship and Immigration Services (USCIS), which included the following:

1. Publish new guidance with respect to the interpretation of the term “specialized knowledge.”

2. Screen L-1 beneficiaries against a list of persons previously denied visas by DOS consular officers.

3. Increase coordination with USCIS and U.S. Department of State (DOS) with respect to the adjudication of L-1 petitions and visa applications.

4. Make site visits a requirement before extending 1-year new office petitions.

5. Grant CBP access to VIBE to assist in L-1 petition processing and promote program integrity.

6. Create a regulation on the Visa Reform Act anti-“job-shop” provisions that will increase consistency in decision making.

7. Update existing guidance on the Visa Reform Act anti-“job-shop” provisions that Immigration Service Officers can use in the interim while a regulation is created.













Three OIG recommendation to the CBP:

The report made three recommendations to the U.S. Customs and Border Protections which included the following:

1. To provide through training to all CBPO processing L-1 travelers at POE. Training should include:

a) Determining petitioner’s eligibility;b) L-1 fraud detection;c) Correct assessment of fees;d) Specialized knowledge’ and e) Provisions of the visa reform act.

2. To establish a guideline for fraud fee collection for CBPO processing L-1 travelers.

3. Request USCIS to provide CBPO access to VIBE to assist in L-1 petition processing.













Currently Immigration Services Officer (ISO) describe specialized knowledge as:

OIG Report and Specialized Knowledge

ISO Concerns

“unquantifiable”

“subjective”

“constantly changing”

“extremely risky”“very difficult to adjudicate”

“open to interpretation unfortunately”

“the only place where I struggle”

ISO general principle for adjudicating specialized knowledge petitions is

“you know it when you see it”













OIG Report and Specialized Knowledge

Specialized Knowledge:

• Term “specialized knowledge” is not uniformly applied by USCIS officers when adjudicating petitions.

• Lack of uniformity is caused by lack of guidance of the term “specialized knowledge.”

• Does not cite the guidance currently within the USCIS Adjudicators Field Manual.

• Favors the USCIS Administrative Appeals Office (AAO)’s interpretation of the legislative intent of the original 1970 legislation which benefits only a small number of beneficiaries.

• OIG report recommends new guidance be published by the USCIS to clarify the definition of the term “specialized knowledge.”


v



Confusion of USCIS Adjudicators:

USCIS Officers

USCIS Guidance: (Binding

Authority)

AAO Guidance

(Non-binding Authority)

DHS: Office of Inspector

General (OIG)

USCIS Ombudsman

Report






Adjudication Trends: Increased Scrutiny of L-1 Visas


• Evidence of the increased scrutiny of L-1 visas is emphasized by L-1 adjudication trends.

• In recent years, employers have experienced much higher rates of denials for L-1 petitions.

• In a large number of cases, the government has requested additional evidence about whether the employee meets L-1 qualification standards.

• These requests too frequently ask for substantial information that was previously submitted or that is only remotely relevant to the application.

• These requests significantly delay the transfer of key employees into the United States.

2014 Ombudsman Report


• There are ongoing issues with the application of the preponderance of the evidence legal standard and unduly burdensome Requests for Evidence.

• For the First Half of Fiscal Year 2014, data reveal an RFE rate of nearly 50% for L-1B Petitions and nearly 43% for L-1A Petitions.

• USCIS policy guidance for the L-1B Program remains pending.

• This August, AILA requested examples of L-1A RFE’s and Denials.






RFE Trends





RFE Reasons FLG Recommendations

• Has special knowledge but is not using it in position

• Include description of how the special knowledge is used with each duty and percentage of time spent performing the duty.

• Job duties are not consistent with O*NET job duties

• Indicate with each job duty how the special knowledge is relative to perform that duty; include percentage of time for each job duty.

• Does not have any training certificates, training materials and/or was not trained prior to joining the Petitioning employers company

• Provide a training program with training certificates and materials (formalize training program within company.)

• Obtain letters from former customers that may be able to attest to the special knowledge used in the past by the Foreign National overseas

• Does not have any supporting documents that confirm possession of specialized knowledge

• Provide letter describing what Foreign National developed with respect to the technology/product.

• Special knowledge is not unique and is common in the industry.

• Provide examples of employers awards or the Foreign National’s certificates of recognition within the company.

• Evidence of employers awards within the industry, particularly for their product or service, help to show that Foreign National has special knowledge of company product.

• Uses special knowledge immediately after being hired.

• Sponsor Foreign National’s who have been with the company for a long time, and/or acquired the special knowledge several years after joining the company and have used it for several years before applying for the L-1B category.

• Does not possess a four year degree. (some consulates require it)

• Cases in which the Foreign National has a four year single source BS degree have a better chance of success.

Top Reasons for RFEs (for Foreign National)






RFE Reasons FLG Recommendations

• Fails to provide the number of people that have special knowledge at work location or in the company

• Foreign National that develops the technology that qualifies for special knowledge or worked on the development team can increase the success of their petition.

• Does not have a developed product that the Foreign National specializes in. Developing a product for a customer is not given any weight or consideration

• If the petitioner has a product that Foreign National has special knowledge of, this will increase the success of their petition.

• Has employed the Foreign National for a short period of time and Foreign National is not a key employee or possesses special knowledge

• Cases in which the Foreign National has worked for the company for a long period of time, holds a high level position and commanded a high salary or will in the U.S. have a better chance of success.

• A third-party product that is created by sponsoring employer will not suffice

• If the development of the technology was done jointly between the sponsoring employer and the customer this will increase the success of the case.

• Letters from the end customer stating the technology was jointly developed will help establish that the special knowledge relates to the sponsoring employer.

• Letter providing a description of what the employee developed with respect to the technology/product may help.

Top Reasons for RFEs (for Petitioning Employer)






Trends in RFE’s for L-1As


Trends in RFEs for L1As

• USCIS focuses on whether prior or proposed employment meets the definition of managerial capacity

• USCIS focusing on how long alien has been employed with the employer

• USCIS reviews personnel above and below the alien in the proposed position and the position abroad

• Qualifying relationship of the employer (Issue for smaller companies)

Denial Trends


Denial Trends

L-1 Denial Rates: FY 2003 to FY 2011

Fiscal Year L-1A Denial Rates L-IB Denial Rates2003 12% 9%2004 13% 10%

2005 11% 6%2006 9% 6%2007 8% 7%

2008 9% 22%

2009 15% 26%

2010 13% 22%2011 14% 27%


FDNS Site Visits


• USCIS announced their Fraud Detection and National Security (FDNS) unit will soon begin conducting randomly-selected compliance visits for Extension of Status petitions filed with USCIS for L-1A managers and executives.

• FDNS plans to expand the site visit program to other L-1 petitions in the future, but the date of implementation is uncertain.

• L-1 Petitions will be selected at random for the unannounced site visit at the worksite address listed on the petition.

• Federal Immigration Officers will conduct the visits.

© 2013, Fakhoury Global Immigration

3290 West Big Beaver Road, Suite 510, Troy, MI 48084Phone: 248-643-4900 Fax: 248-643-4907

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Fakhoury Law Group, PC © 2014, Fakhoury Law Group, PC October 9, 2014